Areas of Practice

Is the Portland Stabbing Incident a Federal Hate Crime?

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.

 

Do Court Fines Ever Go Away? I Didn’t pay my Fines a Long Time ago.

Short answer is that the obligation to pay the fines never goes away. The long answer is that not all of the processes that the court usually uses to get people to pay fines (i.e. contempt and revocation of probation) may be available to the court. The court cannot likely revoke your probation if it is outside the normal term of probation for a misdemeanor, which is 2 years, or 5 years for a felony, but this term can be extended in order to complete restitution AKA payments to the victim. There is nothing in the statute, KRS 533.020 authorizing extension of probation for payment of fines. Therefore, this means the court could not likely impose your original sentence if it is outside 2 years for a misdemeanor conviction or 5 years for a felony conviction.

However, the court can still use its contempt powers to make you pay the fine but there is process that goes along with that. Simply put, if you are ordered by the court to pay fines and you don’t then you are disobeying the court’s order. Judges expect their orders to be obeyed. If the orders are not obeyed then the judge can impose punishments up to and including jail time. However, before imposing those punishments for financial related obligations, the court must make a specific finding of fact upon his or her ability to pay and any further contempt proceedings should be limited to those amounts which the person is found to be able to pay. Also, if jail time is a possibility then the person has a right to appointed counsel AKA a public defender.

Why “Counselor at Law”?

  1. The first case I received a Not Guilty verdict on, a friend congratulated me by saying “Congratulations Counselor!” It was an exciting and very awesome time.  The dictionary defines “counselor” as follows:

coun·se·lor

  1. a person trained to give guidance on personal, social, or psychological problems:

“a marriage counselor”

  1. NORTH AMERICAN

a person who supervises children at a camp.

  1. US, IRISH

a trial lawyer.

 A trial lawyer more accurately describes me and what I do. There are many lawyers who devote their practice to transactional work. There are many lawyers who describe themselves as litigators but do not actually try cases. As a trial lawyer, I try cases. Please refer to my Attorney page to see the type of cases that I have tried and the results. When you meet with a lawyer, you should be asking that lawyer whether he or she has tried cases.




FAQs

How will my case be billed?

Everyone hates unexpected expenses, especially when it comes to legal matters. It has been my experience that clients do not care whether a case takes a few hours or a few days, they just want their lawyer to do a good job and handle their case appropriately. First, I will explain what traditional flat fee billing looks like. Then, I will explain what traditional hourly billing looks like. Then, I will explain the strengths and weaknesses of each and why my modified flat fee billing approach gives the client the best of both worlds.

Traditional Flat Fee Billing

A traditional flat fee billing approach means that the lawyer quotes a price to the client to handle their entire legal matter no matter how long the case takes. The client accepts this arrangement, pays the lawyer, and the lawyer works the case to completion.

Traditional Hourly Billing

A traditional hourly billing approach means that the lawyer tells the client what his or her hourly rate is. The lawyer then asks the client to pay for what is usually referred to as a “retainer” at the beginning of the representation. The lawyer will bill towards the retainer at the hourly rate until the funds are exhausted or the case is resolved. If the funds are gone before the case is resolved, then the client must pay an additional retainer in order to keep the lawyer on the case. If the matter resolves before the funds are exhausted, then the client receives a partial refund of their retainer.

Strengths and Weaknesses of Each

The first strength of Traditional Flat Fee Billing is that it provides certainty to the client that they will be represented on the case until the matter is resolved. It also provides a fixed dollar amount which is attached to the representation. This means since the lawyer agreed to a flat fee for the whole representation, he cannot then come back to the client for more money. It also incentivizes efficient work.

The main weakness of Traditional Flat Fee Billing to the client is that if the case settles earlier than expected (i.e. the lawyer only spent 1 hour on the case) then the client would have saved a bunch of money if they had instead chosen a Traditional Hourly Billing approach.

For example, client A chooses Traditional Flat Fee Billing and pays the lawyer a flat fee. The case resolves much quicker than expected and the lawyer only spent 1 hour on the case. The client is happy their matter is resolved but had they chosen Traditional Hourly Billing they would have received a refund.

The first strength of Traditional Hourly Billing is that if the case resolves relatively quickly then the client saves more money going with Traditional Hourly Billing rather than Traditional Flat Fee Billing.

The main weakness of Traditional Hourly Billing is that if the case goes on longer than expected then the client will have to pay the lawyer a second time, sometimes even a third time or more if the case drags on. Viewed from this point of view, Traditional Hourly Billing may amount to a “blank check” so to speak.  It also doesn’t necessarily incentivize efficient work nor speedy resolutions.

Modified Flat Fee Billing

Why should a client have to pick their poison? Clients are not fortune tellers meaning they don’t know how long their case may take to reach resolution. There is a solution. I bill the client the lesser of either a flat fee or the hourly rate.

At the beginning of every case I will give you an estimate on your case which acts as my promise to you. When I quote a price, I stick to it. This means that whatever happens in your case, I will never ask you for more money. This gives you comfort in knowing what your maximum fee exposure is on your matter. However, I will also keep track of the hours I spend your case. If during the course of your representation, my hourly billing exceeds the flat fee you paid in the beginning, then I will not bill you for the extra time. If during the course of your representation, my hourly billing does not exceed the flat fee you paid in the beginning, then I will refund any unused portion of the fee you paid.

This arrangement is simple and straightforward. It gives you the strengths of both and the weaknesses of neither. It also makes the financial decision easier on you. At the end of the day, that is a lawyer’s job-to make life easier on you.

Is Modified Flat Fee billing available for all cases?

Some cases are billed at a Modified Flat Fee manner, however please call my office at 502-509-2055 to so we can discuss your specific situation.

Is there a consultation fee?

We offer free consultations.

Why Should I Hire a Private Attorney if I am entitled to a Public Defender at little or no cost?

As a former defender, I will start by stating that the vast majority of public defenders are excellent at what they do and exceptional criminal defense attorneys. However, there are drawbacks to representation by a public defender.

  1. High Caseloads-The American Bar Association sets the maximum number of cases that a full time criminal defense attorney should represent per year is 150 felonies or 400 misdemeanors. Public Defenders routinely exceed these caseloads through no fault of their own. Often, public defenders are far too busy to give your case the time that it deserves.
  2. Switching Attorneys- It is common for public defenders to switch cases thus you may be speaking with a different attorney each time you go to court.




Changing the World, One Case at a Time.

A case that I worked on tirelessly for over a year where my client was facing life in prison concluded with my client cleared of all charges and with her record expunged. The charges she was facing (Armed Robbery) were manufactured from day one by an alleged victim who tried to use the criminal justice system to settle his own score and he just found out the hard way that this is not how the justice system works. Not on my watch at least. Now he himself is sitting behind bars thanks to the tireless efforts of the men and women of the Virginia Beach Police Department and in part to his own stupidity. My client even got her $84 filing fee for their expungement refunded thanks to Va. Code Ann. 19.2-392.2 which states that the clerk must refund such costs if the court enters an order of expungement.

When I tell people that I do criminal defense work, they are oftentimes surprised and ask me, “How can you defend those lowlife scums?” or something to that effect. My response to them is often to tell them a Russian parable. A wolf sees a hare that is hopping like mad away from a village. The wolf asks, “Why such haste? Why are you running away from the village?” The hare responds “Because they are catching all the camels and skinning them alive.” The wolf says, ” But you are not a camel.” The hare responds, “You go ahead and try to prove that to them after they’ve already caught you and skinned you alive.” In other words: “Try to prove something to someone who doesn’t want to listen.” This case demonstrates that commitment to justice can and will change the world, one case at a time.

Disclaimer: Many of the practice summaries and individual attorney biographies on this website describe results obtained in matters handled for our firms clients.  These descriptions are meant only to provide information about the activities and experience of our attorneys.   They are not intended as a guarantee that the same or similar results can be obtained in every matter undertaken by our attorneys; and you should not assume that a similar result can be obtained in a legal matter of interest to you.  The outcome of a particular matter can depend on a variety of factors—including the specific factual and legal circumstances, the ability of opposing counsel, and, often, unexpected developments beyond the control of any client or attorney.

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