In Portland on May 26, 2017 a man named Jeremy Christian fatally stabbed two people, Ricky Best and Taliesin Myrddin Namkai-Meche, and injured a third named Micah Fletcher. Mr. Christian was shouting anti-Muslim slurs at two teenage children while they were all passengers on an MAX Light Rail. Ricky Best, a retired military service member, along with the other two victims attempted to deescalate the situation but Jeremy Christian began slashing at all three men repeatedly towards their neck after he received a slight push or shove from someone.
Jeremy Christian is charged with murder, attempted murder and other crimes. At his arraignment, he yelled, “Free Speech or die, Portland. You got no safe place,” and “This is America. Get out if you don’t like free speech.”
The FBI is assisting Portland Police with the investigation. They are investigating the possibility of charging Christian with a federal hate crime. In this blog post, we will explore what constitutes a federal hate crime, whether Jeremy Christian can be convicted of a federal hate crime, and whether this would violate Double Jeopardy. Along the way, we will learn about some interesting facts about constitutional law and how the federal and state criminal justice systems work side by side.
What constitutes a Federal Hate Crime?
There are two main bodies of law which make up what are referred to as “federal hate crimes”:
- The Civil Rights Act of 1968
- Matthew Shepard and James Byrd, Jr., Hate Crimes Prevention Act of 2009
The Civil Rights Act of 1968
The Civil Rights Act of 1968 was signed into law by President Lyndon B. Johnson little more than a week after Dr. Martin Luther King’s assassination. It made changes to combat discriminatory housing policies and codified a hate crimes section.
The hate crimes section of Civil Rights Act of 1968 (18 USC 245(b)(2)) states in pertinent part “Whoever, whether or not acting under color of law, force or threat of force willfully injures, intimidates or interferes with, or attempts to injure, intimidate or interfere with…any person because of his race, color, religion or national origin and because he is or has been” engaging in certain federally protected activities such as attending school, patronizing a public place/facility, applying for employment, acting as a juror in a state court or voting.
Those who violate this law can be fined or face up to one year of imprisonment or both. If the victim received bodily injuries then those who violate this law can face up to ten years of imprisonment. If the victim dies as a result of violations then the perpetrator can face up to life in prison or the death penalty.
Matthew Shepard and James Byrd, Jr., Hate Crimes Prevention Act of 2009
The Matthew Shepard and James Byrd, Jr., Hate Crimes Prevention Act of 2009 was signed into law by President Barack Obama on October 28, 2009. It was partially named after Matthew Shepard, a 21 year old student who was tortured and murdered near Laramie, Wyoming. It was widely reported that the attack was motivated in part due to the victim being gay, and the trial employed a gay panic defense. It was also partially named after James Byrd, Jr., a 49 year old black man who was brutally murdered by three white supremacists.
The Matthew Shepard and James Byrd, Jr., Hate Crimes Prevention Act eliminated the portion of the Civil Rights Act that stated that the victims had to be engaging in federally protected activities thus broadening it’s scope and applicability. It also broadened the federal definition of hate crimes by including in the definition those crimes motivated by a victim’s actual or perceived gender, sexual orientation, gender identity, or disability.
The law also requires that the hate crime happen “during the course of, or as the result of, the travel of the defendant or the victim across a State line or national border; or using a channel, facility, or instrumentality of interstate or foreign commerce;” or that the weapon that the defendant used has traveled in interstate or foreign commerce. You are probably asking yourself, “Why do they care whether the guy who just committed a hate crime or the weapon he used traveled across state or national borders?” The answer has to do with the Constitution and what are referred to as enumerated powers.
Enumerated Powers and the Commerce Clause
Because Article One of the Constitution limits the federal government to certain enumerated powers, the Hate Crimes Prevention Act used the commerce clause(a decidedly broad power) in order to legislate. If you are not a lawyer, you probably only have a vague idea of what the previous sentence even means. What it means is that in order for Congress to make law they must have been given that power to make law by the Constitution. The Constitution limits Congress to the enumerated powers set forth in Article 1 Section 8. These powers include things like the powers to declare war, collect taxes, coin money, and raise/support armies. The broadest of those powers is the power of Commerce. This is because almost anything can be tied directly or indirectly to commerce-even the Portland Stabbing Incident as we will soon find out.
Can Jeremy Christian be convicted of a Federal Hate Crime?
The short answer is that I believe he can. The long answer is that due to the Anti-Muslim slurs that he made after the attack, it is most likely that these statements along with Mr. Christian’s prior recorded Anti-Muslim demonstrations would satisfy the element that the crime was committed because of religion. In addition, he stated that the two girls he was verbally abusing should “Go back to Saudi Arabia”. This statement would satisfy the element that the crime was committed because of national origin although, under the statute, it is not necessary to prove the crime was committed because of race, color, religion and national origin. Any one of these four or any one of those protected classes mentioned in the Hate Crimes Prevention Act would suffice for purposes of a conviction.
An issue which may give prosecutors a tough time is whether the victims of the hate crime must also be the targets of the hate speech. The law doesn’t explicitly require this to be the case although it may seem intuitive that they be the same person. The law is open ended as to who the target could be in saying “willfully causes bodily injury to any person or, through the use of …[a] weapon, … because of the actual or perceived religion, national origin, gender, sexual orientation, gender identity, or disability of any person“. In this case, the most pertinent victims of the hate crime (the 2 men who were killed and the 1 injured) were not necessarily the targets of the hate speech (the 2 girls, one of which was wearing a hijab). Although some reports say that Christian’s speech was “anti-everything and anti-Muslim” it is unclear at this time what “anti-everything” means. Was Christian saying something to the effect of “I’m not racist, I hate everyone equally,” or was he shouting anti-gay, anti-Jew, anti-black, and anti-Mexican slurs with some anti-Muslim slurs thrown in for good measure.
To satisfy the elements associated with a Commerce Clause we must examine where the crime took place -on public transportation, specifically a light rail. This is definitely a channel for commerce. Does it run between several states? If so, this would make it a channel of interstate commerce. We also must look at what instruments were used-specifically the knife. Where was it manufactured? Where was it bought? If in another state then it would be connected to interstate commerce and thus satisfy the requirements of statute.
Furthermore, two victims are dead as a result of the attacks thus Mr. Christian could be eligible for the death penalty. The Hate Crimes Prevention Act only mentions life in prison as a potential punishment which is curious considering it was promoted as a bill that would increase the penalties for those who commit hate crimes. The Civil Rights Act does mention the death penalty. Thus, if he is charged under the Civil Rights Act then he could receive the death penalty. If he is charged under the Hate Crimes Prevention Act, then the highest possible penalty he could receive would be life in prison. Federal prosecutors would likely charge him under both sections if they decide to pursue federal charges.
Why Pursue Federal Charges if he is already facing State Charges?
The answer to this question may depend on what the state prosecutors plan to do. If the state decides that they would rather let the feds deal with it then they will most likely dismiss their charges after he is indicted in Federal Court. Why would they? Maybe they think the feds have better resources to handle the investigation. Maybe they would rather conserve local taxpayer dollars than waste the time and energy to condemn a man who is already most likely going to spend the rest of his life in a federal penitentiary or worse.
If the state decides to prosecute him and the feds are not happy with the outcome, i.e. he gets a light sentence or found not guilty, then the feds can start their own prosecution.
Does this violate Double Jeopardy?
It does not. Double Jeopardy is governed by the Blockburger test. This states that where the same act or transaction constitutes a violation of two distinct laws, the test to be applied to determine whether there are two offenses or only one is whether each provision requires proof of an additional fact which the other does not. Basically, what they are looking for is a separate element of the offense that needs to be proven. If a separate element exists, then Double Jeopardy doesn’t apply. If there are no separate elements, then Double Jeopardy does apply and the subsequent prosecution is barred.
Here, hate crimes require an extra element of proving the perpetrator’s actions were motivated by the victim’s race, religion, etc. This is distinct from most state murder statutes which only require premeditated intent to kill no matter what the motivations.
In addition, the Supreme Court decided in US v. Lanza 260 U. S. 377 (1922) that when the same act is an offense against both state and federal governments, its prosecution and punishment by the latter, after prosecution and punishment by the former, is not double jeopardy within the Fifth Amendment.