"Hate crime" prosecution for flushing Koran down a toilet

Robert Sheridan rs at robertsheridan.com
Sat Jul 28 19:04:00 PDT 2007


Quite often, what happens is that the police respond and maybe an  
officer makes an arrest, okayed, let's say by his sergeant and maybe  
the captain at the station.  The arrested person is  
'booked' (fingerprinted, photographed) at the station or central  
jail.  The report then goes to the DA. The DA then reviews the  
incident and arrest reports to evaluate for prosecutable offenses.   
This decision by the DA to file/not file is sometimes called (as in  
SF) the "rebooking process."  The original police 'booking' decisions  
count for little, here, quite often, as where the DA is not anxious  
to prosecute.  Police and DA have different political and legal  
agendas, in many instances.

It may be that the university called the police, or had its own  
campus police arrest Mr. S.  Now the university's problem is to  
persuade the DA to file a criminal charge.  The president of the  
university may have done the politically correct thing in the eyes of  
Muslim students, and the Muslim world, for that matter, but this  
doesn't affect the legal issues we've been chewing on.

The DA, who risks bring a difficult, expensive, and fruitless  
prosecution, may risk little, and gain much, by declining to file a  
hate crime.  S/He can stand up for the First Amendment.

In the context of a sizable DA office, say in a city of some size  
where there's more than enough real crime to prosecute, this is small  
potatoes indeed; it's the notoriety, the press reaction, and perhaps  
some demonstrations that might occur, that may blow it out of  
proportion, depending on point of view.  If Mr. S were not a student  
at the university, he may be cited for a low-grade trespassing-on- 
campus charge, or allowed to plead guilty or no contest to such,  
regardless whether a more aggravated charge is filed initially, in  
order to spare the state the expense of a full-blown prosecution.

Of course, if the DA were in Dearborn, MI, said to be the largest  
Muslim community in the U.S., the challenge for the DA might be  
greater to justify not filing, I don't really know.

At some point in the process, either at the beginning or further down  
the road, someone is going to have to ask about what we're  
discussing, i.e. the Conlaw regarding expression.

rs
sfls


On Jul 28, 2007, at 5:49 PM, matthewhpolsci at aol.com wrote:

> The posts by Steven Jamar and by Robert Sheridan make serious  
> arguments.  They allow me to ask, "what should the prosecutor do  
> now?"   The man has been arrested. but that presumably was a police  
> action.   Who charged him?  I can't tell, but perhaps someone can.   
> At some point, he will go to trial, unless somebody decides to cut  
> the action off before trial.
>
> On the facts and law now known, what should the prosecutor do in  
> accord with the constitutional issue that Volokh raised?  Is there  
> any room for debate as to what the prosecutor should do?
>
> Is that what the prosecutor will do?
>
>
>
>
>
> Matthew Holden, Jr.
> Henry L. and Grace M. Doherty Professor Emeritus of Politics,  
> University of Virginia
>
> DIRECT MAILING ADDRESS
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> Phone: 601-952-0596
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>
> -----Original Message-----
> From: Steven Jamar <stevenjamar at gmail.com>
> To: conlawprof at lists.ucla.edu
> Sent: Sat, 28 Jul 2007 5:59 pm
> Subject: Re: "Hate crime" prosecution for flushing Koran down a toilet
>
> Can motive ever make an otherwise legal act illegal?  Sure. The  
> hammer, screwdrivers, wrenches, and other tools I carry in my car  
> can suddenly become "burglary tools" if used in a certain way or if  
> carried with the intent to use them in that way.
>
> Killing someone by accident is different from doing so with intent  
> or malice.
>
> Why would a motive of hate not be an acceptable one to consider in  
> intent or severity of a crime?
>
> If we limit certain kinds of speech on the basis of the content of  
> the speech and of the intent and circumstances when made, why not  
> conceptually include hate speech as one of the circumstances and  
> intentions that changes what might otherwise be protected speech to  
> unprotected?
>
> But, the problem with any such sort of speech limitation is that it  
> can quickly and easily get out of hand both in the hands of  
> legislators and in the hands of those enforcing it.
>
> The abuse by law enforcement is a real and serious concern - even  
> with the best of motives.
>
> This strikes me as a curious case for a hate crime per se on the  
> theory that it seems to be brought.   But it seems to me that one  
> could make it a crime  to desecrate religious works either  
> absolutely or contextually ( e.g., publicly).  It doesn't seem that  
> this conduct is really covered by the statute, however.
>
> What about Pace?  If this was a student, could it discipline him  
> for this sort of disrespectful conduct?  Or must the conduct be  
> targeting a particular individual?  Or can it be this sort of group  
> disrespect?  Surely Pace or other private schools can require some  
> minimal level of civil conduct.
>
> Steve
>
>
>
>
> -- 
> Prof. Steven Jamar
> Howard University School of Law
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