Law charging woman with hate crime after she stomped on a ‘Back the Blue’ sign could be unconstitutional, law professor says

The statute allows upgraded charges for ‘intimidation,’ not crimes based on traits of the victim.

(Francisco Kjolseth | The Salt Lake Tribune) Supporters of law enforcement gathered at City Hall in Salt Lake City for a rally in support of police on Saturday, June 20, 2020.

A 19-year-old woman who was charged with a hate crime enhancement in Garfield County after stomping on a “Back the Blue” sign made national headlines in July.

But a law professor who helped draft Utah’s 2019 Hate Crime bill said the statute she’s being charged under isn’t even a hate crime law — and could be unconstitutional.

According to the affidavit of probable cause, on July 7 a Garfield County police officer was conducting a traffic stop for speeding at a gas station when the officer saw a woman “stomping on a ‘Back the Blue’ sign next to where the traffic stop was conducted, crumble it up in a destructive manner and throw it into a trash can all while smirking in an intimidating manner towards me.”

On July 9, the woman was charged with criminal mischief with a hate crime enhancement, making it a Class A misdemeanor.

Clifford Rosky, a constitutional law professor at the University of Utah’s S.J. Quinney College of Law, helped draft S.B. 103, which provides extra protections for those who are victims of hate crimes. Rosky says the hate crime enhancement in the Garfield County case is an “intimidation” enhancement, as the case is not being prosecuted in reference to S.B. 103 — but instead under Title 76, Chapter 3, Part 2, Section 203.3 of the Utah Code under “penalty for hate crimes.”

That statute, which was passed in 1992, is titled “Penalty for hate crimes — Civil rights violation,” and states that a “person who commits any primary offense with the intent to intimidate or terrorize another person or with reason to believe that his action would intimidate or terrorize that person is subject” to an upgraded misdemeanor charge. A class B misdemeanor primary offense would be upgraded to a class A misdemeanor primary offense when this statue is cited.

Unlike S.B. 103, the statute in the Garfield County case does not list any particular protected characteristics but instead defines “intimidate or terrorize” as “an act which causes the person to fear for his physical safety or damages the property of that person or another,” accompanied with the “intent to cause or has the effect of causing a person to reasonably fear to freely exercise or enjoy any right secured by the Constitution or laws of the state or by the Constitution or laws of the United States.”

“It’s very confusing to call it a hate crime enhancement, because it has nothing to do with anything that people would normally regard as a hate crime,” Rosky said.

“But how are they going to prove that she was trying not just to annoy the police officers, but actually frighten them? And prevent them from exercising their constitutional rights? I don’t even know. I mean, they have guns. They’re not going to be physically afraid of a woman stomping on a sign.”

The wording of this section was due to a “failed attempt” to pass a hate crimes law in Utah decades ago, Rosky said. This law was passed under the The Hate Crimes Penalties Act, which was made intentionally vague to avoid lawmakers blocking the act because of specific protections for the LGBTQ+ community, according to Rosky.

“The compromise was this law,” Rosky said. “That doesn’t mention any particular characteristics. It just talks about intimidating and terrorizing people… to prevent them from exercising their constitutional rights. … We have a constitutional right to do just about everything, except the things that are illegal.

“If someone intimidates a person, you could say, ‘Well, they’ve intimidated them, for the purpose of preventing them from exercising their constitutional right to walk down the street.’... So every crime could be charged under this statute, which suggests that the statute is vague and overbroad and unconstitutional.”

A 2001 Utah Court of Appeals case referred to the statute as the “Exercise of Rights Statute,” rather than a hate crime statute, since “it allows enhancement whenever one commits a primary offense with the ‘intent to cause a person to fear to freely exercise or enjoy any right secured by the Constitution or laws of the state or by the Constitution or laws of the United States.’”

In that case, a ninth-grade girl was taunted by a schoolmate on her way home, and the boy was “yelling racial slurs at her and engaging in racist rogueries” while throwing snowballs at her.

When the boy and his friends reached her, she called the boy a jerk and shoved him, and in return he made another racist remark and pushed the girl “backwards with enough force to cause her to fall into the street.” The next day, at school, the boy pushed her with his shoulder and “repeated an offensive remark from the earlier altercation.”

Although the evidence in the case suggested the boy’s actions were racially motivated, there “was insufficient evidence to support enhancement under section 76–3–203.3(3),” — specifically, that the boy intended to cause the girl ‘’to fear to freely exercise or enjoy any right.’’ So in this case, the Court of Appeals concluded there was insufficient evidence to support enhancement of the assault in the “Exercise of Rights” statute, reversing the boy’s enhanced sentence.

“[The ‘Back the Blue’ incident] is not a hate crime,” Rosky said. “And it’s not even being charged as a hate crime. It’s being charged as a crime of intimidation and terrorizing, and even on those terms it’s a very weird fit.”

“I think there’s a very good argument that the law they’re charging her under itself violates the free speech clause because it’s unconstitutionally vague. Certainly, if it were applied in this case, it would raise very serious problems under the free speech clause. Because all she did was stomp on a sign.”

Neither the Garfield County Sheriff’s office nor the Garfield County Attorney responded to a request for comment on the charges.