Against a rising tide of tensions between law enforcement and the communities they protect and serve, one assemblyperson wants to make attacks against peace officers a hate crime.
Republican Jay Obernolte, from Big Bear, CA, introduced a measure that would add “law enforcement officer” to the list of protected classes in the existing hate crimes law. Nationwide, sixty-two peace officers have died in the line of duty this year, including eight in two separate ambush-style July incidents in Dallas and Baton Rouge. Louisiana was the first state to expand its hate crimes statute with a “blue lives matter” law, and several other states, as well as the U.S. Congress, are mulling similar moves. Some advocates oppose such measures. For example, the American Civil Liberties Union maintains that enhancement provisions already exist for some crimes against law enforcement officials, and occupational choice is not a status like race, gender, or disability.
Despite opposition, Mr. Obernolte is committed to the idea. “This law will send a message to criminals targeting law enforcement officers that their reprehensible behavior will not be tolerated,” he opined.
California’s Hate Crimes Law
There are multiple components to this law, and as some defense lawyers like to say, it is interesting that “hate” is not an element of the hate crimes law. The first provision, Penal Code 422.55, sets out the protected classes as: race, gender, religion, nationality, disability, sexual orientation, or anyone associated “with a person or group with one or more of these actual or perceived characteristics, such as a straight person marching in a gay pride parade. The next section — 422.56 — goes into a little more detail.
- “Disability” can be a permanent physical or mental condition, but not an emotional one,
- “Gender” includes gender identity, and
- The defendant must have a “bias” toward the protected class, and that bias must be a “substantial factor,” although not the “main factor,” in the underlying crime.
“Bias” is not the same thing as “animus,” “dislike,” or any other word commonly associated with hate crimes. Under existing law, the defendant only needs to target the victim because of some belief about that particular group, whether or not that belief is correct. For example, if a mugger preys predominantly on females because he believes they are weak and unable to resist, the mugger could be charged with a hate crime.
Such overly-aggressive prosecution actually happens. New York’s hate crimes law is similar to the one in the Golden State, and several years ago, Queens prosecutors started using the law in elder abuse prosecutions. They argued that the defendants targeted their victims because of bias, i.e., older people are easy to scam. The prosecutor’s motivation was not to punish a “hate crime” in the everyday sense of that phrase, but to enhance the sentence in elder abuse cases.
Because the hate crimes law can be misused, and because of its uncertain application, it could be unconstitutionally vague and therefore unenforceable. Some other defenses include:
- First Amendment: This provision protects freedom of speech but not freedom of conduct, and the line between these two things is not always clear. For example, if a person flies a Confederate flag on the front poarch, many people would consider that act a hate crime, but it is an “act” and therefore not punishable under the law.
- Motivation: Selection does not imply bias, so a person who mugs a black man is not automatically guilty of a hate crime. However, if the mugger went to a black neighborhood or let a white person pass by, there is more evidence of bias. Some defenses could still apply, since the mugger might have gone to that street because it was dark and might have let other people pass because they were physically big.
Prior acts or statements are usually not admissible in criminal proceedings, but they may be relevant to show bias or prejudice against a particular group.
Hate Crimes Penalties
There are several different hate crimes statutes in California. Legislators probably drafted these laws in this way to make them specific enough to survive the inevitable vagueness challenges, but in so doing, they created a scheme that encourages over-aggressive prosecution.
- Stand-Alone Hate Crimes: It is illegal to “willfully injure, intimidate, interfere with, oppress, or threaten any other person in the free exercise or enjoyment of any right or privilege secured to him or her by the Constitution or laws.” This offense is a probation-eligible misdemeanor that most prosecutors use in civil rights-type violations, such as a picket line at a polling place.
- Misdemeanor Add-On: PC 422.7 makes most misdemeanors into wobblers (offenses that can be charged as misdemeanors or felonies) if there is evidence of prohibited bias.
- Felony Add-On: If the defendant committed a felony, the judge could add up to four years to the prison sentence, if the felony was also a hate crime.
Sometimes, the best way to avoid these penalties is to defend the underlying case, because if the prosecutor cannot prove the assault or whatever beyond a reasonable doubt, the hate crime add-on is immaterial.
In the current social environment, aggressive prosecutors look to add hate crimes charges wherever possible. For a free consultation with an aggressive criminal defense attorney in Los Angeles, contact the Rodriguez Law Group. Mr. Rodriguez is a former prosecutor.