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As hate crime laws expand, who to exclude as victims?

A photo from surveillance video, released by the Los Angeles Police Department in late 2018, shows a hooded figure stabbing a homeless man in what proved to be a deadly attack. (AP)

In California, a man is accused of a series of unprovoked attacks on homeless people. In Arizona, a Democratic congressman’s aide breaks the ankle of a Republican wearing a Make America Great Again hat. In Connecticut, a police officer has a brick thrown through his cruiser’s window; authorities say the suspect talked about hating cops.

All are acts of violence, but are they hate crimes? In a growing number of states, the answer is yes, as the definition of hate crimes expands well beyond traditional categories such as race and ethnicity, religion, national origin, gender and sexual orientation.

Seven states and the District now consider homeless individuals a protected group, for example. Five states do the same for police; at least four include political affiliation or political beliefs.

Utah goes the furthest, with a new law that establishes a whopping 18 categories. It adds age, service in the military, status as an emergency responder. It even counts “matriculation” — legal speak for bad blood between schools.

The state has a “pretty good rivalry” between the University of Utah and Brigham Young University, explained Republican state Sen. J. Stuart Adams, who introduced the line item. “If I’m standing outside of a bar and I’ve got my red University of Utah hat on, and a couple of [BYU] guys come beat me up . . . a hate crimes statute would help me.”

These greater protections come amid sharp increases in hate crime incidents nationwide, as reflected in federal data and outside reports. Civil rights groups are pushing the five states without any hate crime laws to pass legislation.

But broadening who is covered has divided usual allies and raised thorny questions.

Should a group of individuals qualify if their key characteristic — such as wearing a police uniform or living on the street — can change? Who gets to decide when a certain threshold has been met for designating a new category, a move that enables prosecutors to tack on penalty enhancements? And, some leaders ask, at what point do these laws become so broad as to lose all meaning?

Kami Chavis, a law professor at Wake Forest University and an expert on hate crime measures, says the continuing expansions run the risk of diluting such statutes’ original intention: to protect historically marginalized or persecuted groups.

“When we start broadening those categories, it is almost like the exceptions swallow the rule,” Chavis said. “Our national history is bound up in racial discrimination. . . . When you start giving [protections] to every single vulnerable category, then it could have a negative effect.”

Yet times and circumstances change and can warrant a more expansive approach, according to Heidi Beirich, director of the Intelligence Project at the Southern Poverty Law Center. A decade ago, she recalls, some people feared that adding gender to the federal hate crimes statute would defeat its purpose since about half the population is female.

“The view of the civil rights community was: Well, women actually are targeted in ways that men aren’t,” Beirich said. “They come from less power historically. And they face particular kinds of violence that other populations don’t.”

Hate crime laws date to the Civil Rights Act of 1968, which made it a crime to attack or issue threats against people based on “race, color, religion or national origin.” President Barack Obama added sexual orientation, gender, disability and gender identity to the list four decades later when he signed legislation specifically named for two men killed during gruesome hate crimes — Matthew Shepard, who was gay, and James Byrd Jr., who was black.

In the intervening years, California became the first state to pass its own statute, followed steadily by states across the country. The more recent controversy has been over whom these measures should cover.

There has been no shortage of attacks to fuel the sharp debate. About 7,100 hate crimes were reported nationwide in 2017, marking the third consecutive year of increases and a 17 percent jump over 2016, according to the FBI’s latest statistics. In the wake of the Aug. 3 mass shooting in El Paso, that trajectory is unlike to reverse in 2019. (Officials are considering federal hate crime charges against Patrick Crusius, who allegedly was targeting Hispanics when police say he opened fire in an El Paso Walmart.)

Since President Trump has been in office, his supporters have repeatedly cited instances of violence against them that they considered hate crimes. Michael Lieberman, the Anti-Defamation League’s Washington counsel, suspects such cases would be difficult to prove.

“If you have a Make America Great Again hat on or ‘I wish Hillary would have won’ hat on and you’re beaten up, it would just be hard to say” that the beating was a consequence, he noted. “What would be the evidence at the scene of the crime? . . . Usually the hate crimes that are prosecuted are not nuanced.”

The greater push to expand protections has centered on the homeless and first responders, particularly police.

Civil rights groups such as the SPLC, the ADL and American Civil Liberties Union generally oppose “Blue Lives Matter” laws on the grounds that most states already have penalty enhancements for assaults on public safety workers.

On the matter of the homeless, however, they are split.

The ADL is opposed. Lieberman points to a crucial distinction with homeless individuals: Their status isn’t immutable. “You could be homeless one day and not the next,” he said.

The SPLC disagrees, with Beirich noting that the immutability standard already flexes. After all, a person’s religious affiliation is also changeable.

“The homeless are demeaned constantly,” she said, “and often times on the basis of the idea that people think it’s your own fault for being homeless.”

That rare division emerged this spring during renewed debate about a proposal in California, which the National Coalition for the Homeless says leads the nation in crimes against homeless individuals. The previous year, video footage captured an unprovoked assault as a passerby stopped on a San Francisco sidewalk to twice kick a sleeping homeless man in the face. Police later connected the alleged perpetrator, a 59-year-old computer technician, to the murder of another homeless man in a Chinatown alley.

Given such attacks, Democratic State Assemblyman Mike Gipson wanted a more encompassing law.

“If you are singled out because you’re black or because you’re Latino, that’s a hate crime,” said Gipson, an African American who spends one night a year sleeping in homeless encampments in his district in Los Angeles County. “Shouldn’t we have that same law for the homeless who are being sought out because they are homeless?”

Although his bill died in committee, Gipson plans to try again in 2020.

Tragedies typically propel this kind of legislation. Texas became the fourth state to make police, firefighters and emergency medical personnel a protected group under its hate crimes statute a year after a sniper killed five officers and wounded seven more in Dallas at the end of a 2016 rally protesting police shootings. The shooter told a hostage negotiator that he wanted to assassinate white officers before a remote-controlled robot killed him with a bomb.

Some national law-enforcement organizations are hesitant to discuss Blue Lives Matter laws. The United States Deputy Sheriff’s Association doesn’t take a position, with a spokesman explaining that the group stays “out of the political realm.” Bill Johnson, executive director of the National Association of Police Organizations, said in a short email that the group supports the laws.

According to the ADL’s Lieberman, no one in the United States has been criminally convicted of a hate crime against a police officer or homeless person. And in the case of police, prosecutors in most states already can turn to laws that ratchet up penalties for attacks on emergency responders. By contrast, proving that somebody attacked an officer because they were an officer is much more difficult, he said.

Connecticut’s law does not separately cover police, so the 20-year-old accused of hurling a brick at the cruiser in Hartford last year was charged with a hate crime for the racial element of the attack. He talked about targeting officers who were white — “because they shoot black people,” according to the arresting officer’s report. The charge was later dropped.

Critics sometimes point to the political bartering that can play into hate crime laws.

When Maryland included the homeless under its statute in 2009, the Republican lawmaker behind the move was the same lawmaker who four years earlier had voiced strong objections to a proposal adding LGBT individuals to the list. Alex Mooney, then a state senator and now a West Virginia congressman, drew colleagues’ ire by trying to tack on a dozen other groups, including teachers, pregnant women, and obese people, according to a news report.

Most of Utah’s nonconventional groups were put on by Republicans who, like Adams, made their support of Senate Bill 103 conditional on the additions. Although Adams acknowledged recently that he isn’t sure what categories such as “marital status” and “familial status” really mean, he would have liked for the language to be even broader — to cover “heinous crimes . . . that terrorize communities, regardless of the class.”

Lauren Simpson, policy director for Alliance for a Better Utah, a progressive advocacy and government watchdog organization, criticizes the measure as overly broad. Some lawmakers even tried to include teachers and ranchers, she says.

“On the House floor, they added in political expression,” she recalled. “They said this is a great way to send a message about political civility. But I think penalty enhancements are a really inappropriate tool to try and send that message.”

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