Paul Cassell: Back the police. But not on sign-crumpling charges

Bringing a hate crime charge against a woman for ‘smirking’ is not a proper use of the statute.

Hate Crime Primer | Pat Bagley

As reported in The Tribune, a 19-year-old woman was recently charged in Garfield County with a hate crime for crumpling up a “Back the Blue” sign.

According to the charging statement, defendant allegedly destroyed the sign “all while smirking in an intimidating manner” toward the arresting officer. This conduct does not begin to approach the kind of actions necessary to prove a hate crime and that charge against her should be dismissed.

I reach this conclusion as a professor of criminal law and attorney who often supports law enforcement. I have recently written several scholarly articles about the importance of proactive law enforcement in providing safety to our communities. And I have defended several law enforcement officers in court when they have been accused of misconduct. But the law being used here is simply inapplicable.

Utah’s hate crime law — more fully described as the “Victim Targeting Penalty Enhancement” — increases the penalty provided for an underlying crime where the defendant intentionally selects the victim of the criminal offense because of a personal attribute of the victim (or a person related to the victim).

This law protects victims of crimes with certain attributes frequently described in civil rights statutes, such as race, religion, sex and disability. But Utah’s law also includes status as a law enforcement officer as among the specifically protected classes.

I have long been a supporter of these kinds of hate crime laws, because of the greater harm that is caused when a criminal intentionally commits a crime which threatens not just the direct victim but a larger group. For example, burning a cross into the lawn of a Black family can intimidate not just the residents who live in that home but a broader racial community. Similarly, defacing a synagogue causes harm not just to an individual but to a broader religious community.

Based on this harm-to-a-broader-group rationale, in 2019 the Utah Legislature properly recognized that intentionally targeting one particular law enforcement officer for a crime based on his status as an officer could be harmful to others in the same law enforcement community.

The clear defect in the charge here, however, is that underlying crime — alleged destruction of a “Back the Blue” sign of uncertain origin — does not harm the arresting officer. Perhaps if the sign belonged to the officer, a hate crime charge could somehow be crafted. But the basis for the hate crime charge against the defendant appears to be that in destroying the sign, she was expressing disapproval of law enforcement — not that she was committing a crime against law enforcement.

A hate crime enhancement is not properly filed when the charge rests on the opinions being expressed, not the injury that is being caused. Like other members of the public, the defendant has the right to condemn the police. Applying the hate crime enhancement in these dubious circumstances will only fuel the claims of critics, who have argued that the provisions will be used against persons articulating unpopular views — not dangerous criminals genuinely menacing a wider community.

Have we reached the point where crumpling a pro-police sign while “smirking in an intimidating manner” is a serious hate crime in Utah? The men and women in Utah’s law enforcement community are made of sterner stuff.

If for no other reason than for the sake of maintaining public confidence in fair and impartial law enforcement, this hate crime charge should be quickly dismissed. Utah’s hate crime law should be reserved for the threatening crimes — and the intimidated victims — for which it was intended.

Paul Cassell

Paul Cassell is the Ronald N. Boyce Distinguished Professor of Criminal Law at the S.J. Quinney College of Law at the University of Utah.