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Court says so-called hate-crimes law is constitutional
This is an archived article that was published on sltrib.com in 2005, and information in the article may be outdated. It is provided only for personal research purposes and may not be reprinted.

Utah's so-called hate-crimes statute - long believed by some prosecutors to be unconstitutional - was upheld Wednesday by the 10th U.S. Circuit Court of Appeals in Denver.

The ruling, however, is not expected to lead to the widespread use of the law.

Despite its title as a hate-crimes statute, Assistant Attorney General Jerrold S. Jensen said the 1992 law should be interpreted as a civil-rights statute. It allows prosecutors to apply the law narrowly when, for instance, someone interferes with another person's right to vote, speak or worship.

"Is it a true hate-crimes statute? It is not," Jensen said. "If we would have identified victims by class, that would have been a true hate-crimes statute."

The federal appellate court dismissed claims by animal-rights activist Eric Ward, who argued in a 2001 lawsuit that the statute was overbroad and infringed on already-protected speech, including the right to protest and demonstrate.

Ward was charged with misdemeanor disorderly conduct in 1999 when he burned a mink stole during an animal-rights protest. The charge was later enhanced under the law to a felony because Ward allegedly acted "with the intent to intimidate or terrorize another person."

Howard R. Lemcke, the Deputy Salt Lake District Attorney who filed the charges, later dismissed them on the advice of his supervisors, he said.

"They were under the impression by one judge that the law was unconstitutional," Lemcke said.

Jensen, who defended the state against Ward's lawsuit, was satisfied with the federal court's ruling. "I'm pleased the court upheld the constitutionality of what I think is a valid statute," he said.

Still, it doesn't have enough "teeth" to successfully prosecute a crime based on race, religion, sexual orientation or other characteristics because it "doesn't have an enumerated class of victims," Jensen said.

The 1992 bill was passed after such wording was eliminated. Similar hate-crimes bills have been defeated over the last 12 years in Utah's Legislature because they included a "protected class of victims," Jensen said.

Since dismissing the charges against Ward, Lemcke said his office has not filed criminal charges under the statute and doesn't plan to use it in the future.

Ward's attorney, Brian Barnard, noted the appellate court did not address whether the law had been illegally applied to Ward.

"The 10th Circuit reserves the possibility that the statute could be misapplied in such a way as to unconstitutionally infringe on a person's rights," Barnard said via e-mail. "I remain convinced that such a possibility is substantial."

jbergreen@sltrib.com

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