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Saturday, December 08, 2018

Are politically motivated crimes by racists hate crimes?

James Alex Fields, Jr., who drove his car into a crowd of people in Charlottesville and killed counter-protester Heather Heyer, was convicted on Friday of first-degree murder, along with eight counts of malicious wounding. Sentencing begins Monday.

Fields also faces multiple federal hate-crime charges under § 249 for causing death or bodily injury because of the "actual or perceived race, color, religion, or national origin of any person" and under § 245 for using force to interfere with person's enjoyment of protected activities on the basis of race.

My question: How is what he did a racially motivated hate crime? The one person killed was white, as were many of the people injured. The DOJ press release announcing the indictment (from June) described Fields driving into a "racially and ethnically diverse crowd," seeming to suggest that Fields was targeting African-Americans and a group of people affiliated with African-Americans. But did he target that group because of their race (or the race of some of them)? Or did he target them because they were counter-protesters holding certain beliefs about racial, religious, and ethnic equality? The latter is not covered by either § 249 or § 245. And it would seem to stretch "perceived race" to cover people who are not part of some group but support rights and equality for that group.

At best, this crime seems politically motivated--Fields appears to be a racist and he picked victims who disagree with his positions. But is that a race-base hate crime?

Posted by Howard Wasserman on December 8, 2018 at 02:53 PM | Permalink



I think I generally agree with your thoughts on hate crimes here. But, if we were to think they're a great idea, would we have reason to distinguish between a hate-motivated crime against a minority and a hate-motivated crime against their ally?

I don't know that we have a justification for hate crime legislation that doesn't extend to protecting allies.

And if you want a real life example instead of a hypothetical, take the murder of the 3 freedom riders in Mississippi. Should hate crime laws have only protected the black victim but not the two white victims?

Posted by: Derek Tokaz | Dec 10, 2018 8:41:29 AM

The statute uses "any person" rather than "that person," but it repeats "any person" ("Willfully causes bodily injury to any person . . . because of the actual or perceived race, color, religion, or national origin of any person"); I would read that as "any person" means the same any person.

So on the reading that everyone seems to be adopting here, if a racist assassinates a white President because of that President's racial policies, that would be a hate crime. That seems overbroad. Hate crimes laws already skate close to punishing unpopular political views. This applications seems to cross that line.

Posted by: Howard Wasserman | Dec 9, 2018 2:36:59 PM

It seems to me that this is the fallacy of "or" necessarily meaning "xor" (the exclusive or, "A or B but not both A and B"). Not only is that an unnatural reading of the statute and of criminal law — it makes the affirmative defense of "justification" an element of the offense of "no alternative justification" — but it's irrational because it presumes that the motivation for a criminal action must be purely evil. For the relevant definition of "evil." We can argue for hours about whether "race-motivated" is always evil and whether "politically motivated" is necessarily not (compare to the constitutional definition of treason, "giving aid and comfort to [the United States'] enemies," but that's only relevant if those are exclusive alternatives.

The key here is that the natural reading of both the statute and human behavior asks this question for trial: "Was race a substantial motivating factor, even if not the sole one?" It does not ask "Was race the only reason that can possibly be advanced for the defendant's acts" — especially since the statue doesn't make "racial hatred," a crime, but only another criminal act that includes a racial motivation. Mixed motivation is not a defense to the offense; it may, or may not, be a legitimate mitigating factor at sentencing, or in determining an affirmative defense on a particular set of facts, but those are both incident-specific inquiries.

Which, historically, is a problem involving misused prosecutorial "discretion" and police conduct. But that is an overlapping inquiry that cannot be answered purely here any more than the Exclusionary Rule can have no exceptions.

Posted by: C.E. Petit | Dec 9, 2018 1:24:06 PM


That was my understanding of the statute as well, that it's harming X because of X's race, and not harming X because of Y's race (where Y could be X, but is not necessarily so).

If the lynch mob beat up Atticus in order to get to Tom, would that be a hate crime? I doubt 249 intended it to work that way, but to the extent we think hate crime laws are a good idea, I don't see why this shouldn't be the case. If the idea is to more severely punish crimes fueled by racial animus, why is the identity of the victim even relevant, except as evidence of that hate?

Posted by: Derek Tokaz | Dec 9, 2018 7:56:19 AM

First of all, in the indictment there are twenty-eight counts of attempts to kill people on the basis of race; it's not clear to me that all twenty-eight people are minorities, but some are.

Whether you can have transferred motive under 249 isn't quite clear from reading the statute, which proscribes "willfully caus[ing] bodily injury to any person or, through the use of fire, a firearm, a dangerous weapon, or an explosive or incendiary device, attempts to cause bodily injury to any person, because of the actual or perceived race, color, religion, or national origin of any person." My textualist gut reaction is that if the person you injure has to be injured because of *their* race, "any person" at the end of that sentence would read "such person," the antecedent of "such" being the "any person" whose injury is caused earlier in the sentence. Read literally, the second "any" seems to allow prosecution for injuring Person X because of the race of any person, whether Person X or not.

Posted by: Asher | Dec 8, 2018 11:19:24 PM

The issue here is about motive ("because of") not intent ("willfully"). When motive is an element, can you have transferred motive?

Posted by: Howard Wasserman | Dec 8, 2018 8:23:03 PM

I don't quite know what basis you have to say ("At best, this crime seems politically motivated") that he wasn't trying to kill black protesters because, in part, they were black. The fact that Heyer's white seems irrelevant; if DOJ's right about the motive, it becomes a case of what I dimly remember is known as transferred intent. I do think that you raise a serious line of defense, but I don't really know if this happens if the counterprotesters are all or predominantly white, and I am confident that the prosecutors who drafted the indictment know more about that point than you or me, though they may be aware that it's a serious hole in their case and are pushing forward for political reasons.

Posted by: Asher | Dec 8, 2018 7:02:09 PM

Concerning that question posed in the post , that is :

" How is what he did a racially motivated hate crime ...."

Looks pretty obvious . For you wonder about the chaotic result ( emphasizing : chaotic ) but , the factual and legal configuration , matches the criminal elements of the offense described . And , that's what counts ! For :

§ 249 in its relevant parts , reads so , I quote :

Whoever, whether or not acting under color of law, willfully causes bodily injury to any person or, through the use of fire, a firearm, a dangerous weapon, or an explosive or incendiary device, attempts to cause bodily injury to any person, because of the actual or perceived race, color, religion, or national origin of any person....

End of quotation :

So , intentionally , that is to say : " willfully causes .... " bodily injury . To :

" Any person " that is to say : any person , not necessarily the subject of hate crime ( so can be even a white person in that case ). And finally :

" Because of the actual or perceived race , color , religion , or national origin of any person " .

So , we have here all the factual and mental element needed for conviction :

For , a person got hurt ( no matter who ) and because of race issue of any person ( other person even, not the victim ) .

I haven't read the ruling , but it seems pretty clear , that there is no need for coherent matching between the identity of the victim , and the racial motivation .

Strictly , the result , doesn't need to be associated or connected directly to the racial issue, but , clear circumstances surrounding the offense , are sufficient .


Posted by: El roam | Dec 8, 2018 5:12:35 PM

Wasserman , it seems that the " § 249 " is directing again to the DOJ press release , not to the legislation itself . Here the link to there :


Posted by: El roam | Dec 8, 2018 4:22:56 PM

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