Mimesis Law
28 May 2020

Do Blue Feelings Matter?

September 9, 2016 (Fault Lines) — Raul Delatoba sounds like a jerk. At five in the morning, he started drunkenly banging on the window of a nice hotel in the French Quarter of New Orleans. When someone asked him to stop, he whipped out the n-word almost immediately. So some hotel security guards flagged down a couple of nearby patrolmen and asked for help.

After getting arrested and dragged down to the station, Delotoba figured he might as well be hanged for a sheep as a lamb, and decided to try out all the curse words he knew in short succession, calling one officer a dumb-ass n——and another a dumb-ass c—- (no points for creativity). Delotoba was charged with a couple of minor misdemeanors for damaging the window and being disorderly.

And one felony. For a hate crime. “For an attack on individuals based on their race, sex, and occupation.” See, in Louisiana, it is a hate crime to commit an array of offenses against someone on the basis of their status as a firefighter or law enforcement officer. After a quick purview of the law, it does not look like simply calling an officer by an offensive name is enough to trigger a hate crime provision. And if all of the underlying charges are misdemeanors, the hate crime enhancement should itself be a misdemeanor, not a felony.

So why did the officers charge a crime that will probably get kicked at some point? Because Delatoba was annoying. Because he might be able to beat the rap but that won’t necessarily fix his arrest record or get him a reasonable bond. And because hate crime laws, by their nature, make the subjective beliefs of their owners into an element of the crime. And that can improve the odds of conviction at trial, or provide a serious incentive to plea even if the charge is bogus.

See, normally when you prosecute some drunk for making a nuisance of himself, you probably just have to talk about the night in question. How much damage did he do? What did he smell like? What stupid stuff did he say? But even a weak hate crime allegation opens up a whole new world of evidence, from the books that the defendant reads to the posts that he puts up on Facebook, because you now “have” to prove that he committed a crime in furtherance of his hateful ideology.

This is bad enough when we use it in its traditional sense—to prosecute people who commit crimes against minorities who have suffered a history of public oppression. It gets much, much worse when we start saying that an insult to a police officer provides a possible motive for resisting arrest through a simple battery, or for damaging an officer’s car, and that motive enhances the seriousness of the offense. When the person being insulted decides what charges will be filed, there’s an opportunity for abuse.

Take your typical Black Lives Matter protester. Already widely denigrated as terrorists by many police chiefs, they are not beloved by New Orleans police. Now it may not be a crime to have anti-police views, but committing “criminal trespass” is a misdemeanor. And if you are trespassing against someone “because of actual or perceived employment as a law enforcement officer,” you get the enhancement. Now, your criminal trespass trial becomes a referendum on the acceptability of your views.

Let’s imagine, by contrast, a pro-police rally that gets out of hand. Looting. Rioting. Women ripping badges off chests as trophies to put above their Sean Hannity shrines at home and then valiantly struggling against arrest. Sure, those are all crimes, but these pro-police activists don’t have to worry about receiving the enhancement, because their views are acceptable to a majority of voters in Louisiana.

And despite such problems, the United States Supreme Court has already upheld hate crime laws against First Amendment challenge, saying that they don’t chill speech because people won’t suppress bigoted views to avoid speculative future prosecution. That decision was unanimous, suggesting that if we don’t like these laws, we’ll have to rely on the ballot box, not the gavel.

Let’s be clear. This charge is probably going to die an ignominious death. A prosecutor will revise it. Or it’ll get struck down at the probable cause hearing. Or the defendant will plead out to the misdemeanors to avoid the hassle of dealing with it. But the police officer will still have made his point: Insult me at your own peril.

Every now and again, a story comes out of Thailand, which vigorously enforces its lese majeste laws against any insult to the king. People with unpopular political views are routinely accused of such insults, and are left to flee the country or somehow fund a defense to avoid lengthy prison sentence. We might scoff at such laws, thinking ourselves a much freer country. But Thailand has only one king. Under this law, we may now have a million.

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