Deciding When Hate Is A Crime - The First Amendment Police Detect

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2002
Deciding When Hate Is a Crime: The First Amendment, Police

Detectives, and the Identification of Hate Crime
Jeannine Bell
Indiana University Maurer School of Law, [email protected]
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DECIDING WHEN HATE IS A CRIME:
THE FIRST AMENDMENT, POLICE
DETECTIVES, AND THE
IDENTIFICATION OF HATE CRIME
Jeannine Bell*
INTRODUCTION
A cartoon that appeared in a major United States newspa-
per several years ago aptly illustrates many of the fears that
have been expressed regarding the enforcement of hate crime
laws. The cartoon shows a man in a suit standing in front of a
judge.' The caption reads, "I had no idea I was violating his
civil rights, your honor. I only intended to punch him in the
nose."2 The man has been charged with some type of hate
crime. A hate crime is a crime motivated by prejudice toward
the "victim's race, color, ethnicity, religion, or national ori-
gin." 3 Hate crime laws typically require proof of the individ-
ual's motivation for the crime in order to convict the
defendant.4 In the cartoon, the judge appears to have been
saddled with the responsibility of determining the individual's
true motivation. The cartoon seems to cast aspersions on the
judge's ability to evaluate whether a hate crime has been com-
mitted. This is precisely what worries many who are con-
cerned about enforcement of hate crime laws.6
* Associate Professor of Law, Indiana University (Bloomington).

A.B., Harvard College; J.D., University of Michigan Law School; Ph.D.
(Political Science) University of Michigan. I would like to thank the editors
of the RUTGERS RACE & THE LAW REVIEW. I would also like to extend
special thanks to Craig Bradley, Kevin Brown, Ken Dau-Schmidt, Rob
Fischman, Dawn Johnsen, Lisa Farnsworth, and Susan Williams for their
valuable comments on earlier versions of this Article.
1. Cartoon on file with author.
2. Id.
3. BLACK'S LAW DICTIONARY 378 (7th ed. 1999).
4. See LU-IN WANG, HATE CRIMEs LAW § 10:4 (2001).
5. Cartoon on file with author.
6. See Phyllis B. Gerstenfeld, Smile When You Call Me That: The
Problems With Punishing Hate Motivated Behavior, 10 BEHAV. SCi. & L.
259, 270 (1992).
34 RUTGERS RACE AND THE LAW REVIEW [Vol. 4
For example, critics see the task of proving and judging mo-
tivation in this context complex, if not impossible.7 They find
the task not only difficult, but one fraught with grave First
Amendment difficulties.8
Critics' concerns contribute to the impassioned decade-long
debate concerning hate crime legislation. 9 This debate has
only intensified and grown more polarized in the past few
years as legislatures around the country have considered pass-
ing hate crime legislation, frequently in response to dramatic
hate crimes like the dragging death of James Byrd in Texas,'"
the murder of Matthew Shepard in Wyoming,11 and the mur-
der of a Filipino-American letter carrier, Joseph Ileto, by Bur-
ford Furrow in Los Angeles.12 Critics do not believe that hate3
crime legislation is an appropriate response to such crimes.'
They assail hate crime legislation for a variety of reasons, 4
one of the most serious being the problem of controlling hate-
ful behavior without offending the First Amendment by silenc-
ing speech.5 Critics are concerned that people will be
convicted for hate crimes in cases in which the crime is not
motivated by bias and the only evidence of the defendant's
motivation is hate speech.
Unfortunately, the current debate over hate crime is predi-
cated mainly on doctrinal, historical, and emotional arguments
as neither supporters nor critics ground their arguments in em-
pirical evidence of how hate crime laws actually work in prac-
tice. Scholars have questioned whether hate crime legislation
can be enforced by those charged with enforcement, many of
7. See id. at 271.

8. See id. at 278.
9. See id. at 266.
10. Patty Reinert & Allan Turner, Jasper killer gets death penalty: A
smirking King shows no remorse, Hous. CHRON., Feb. 26, 1999, at 1A.
11. Elaine Herscher, Wyoming Death Echoes Rising Anti-Gay Attacks, S.
F. CHRON., Oct. 13, 1998, at A-7.
12. James Sterngold, Suspect Targeted Letter Carrier:He Asked a Favor,
then Shot 9 Times, NEW ORLEANS TIMES-PICAYUNE, Aug. 13, 1999, at Al.
13. Cf Murad Kalam, Hate Crime Prevention, 37 HARV. J. ON LEGIS.
593, 597 (2000).
14. See generally Gerstenfeld, supra note 6, at 269-84 (reviewing critics'
opinions).
15. See id. at 278-80.
2002] DECIDING WHEN HATE IS A CRIME
whom are unschooled in the vagaries of First Amendment

law.16 This Article argues that ultimately, whether hate crime
laws can be enforced constitutionally is an empirical question
that raises important concerns regarding the behavior of those
charged with their enforcement. Without some sense of
whether hate crime laws can be enforced constitutionally, it is
hard to accept the arguments of supporters that the benefits of
passing hate crime legislation outweigh the significant harm
that critics argue such legislation may cause.
Based on interviews with and observations of those respon-
sible for hate crime law enforcement in a metropolitan city,
this Article provides much-needed empirical data to illuminate
the contentious debates over the constitutional and practical
dimensions of using hate crime law to punish bias crime. This
Article adds a story of how hate crime law is enforced to the
debate, based on the experiences of the police detectives who
are required to enforce hate crime law. Part I of this Article
provides a brief description of hate crime laws and argues that
the police play an important role in the determination of how
hate crime law is enforced and ultimately, whether defendants'
First Amendment rights will be respected. Part II describes
critics' concerns about defendants' First Amendment rights
and the narrow constitutional line that enforcers of hate crime
law must walk between enforcing hate crime and policing free
speech. In Part III, I describe how enforcers decide that inci-
dents are hate crimes and argue that they are able to avoid the
pitfalls identified by critics. The Article concludes in Part IV
with a discussion of the disconnect between hate crimes and
hate speech and an exploration of new justifications for hate
crime law.
16. See Jeannine Bell, POLICING HATRED: LAW ENFORCEMENT, CIVIL

RIGHTS, AND HATE CRIME (forthcoming 2002) (manuscript at 14-22, on file
with author).
PART I: THE POLICE ROLE IN HATE CRIMES LAW
A. Hate Crimes Law
The best way to distinguish hate crimes is to highlight how

they are different from non-bias-motivated incidents. Hate or
bias crimes" are not committed because of animosity towards
the victim as an individual, but rather because of hostility to-
ward the group to which the victim belongs.1 8 The prejudice
which motivates the commission of a hate crime may be based
on the victim's actual or perceived race, religion, ethnicity, or
sexual orientation. Though usually the vast majority of inci-
dents investigated as hate crimes are assaults and vandalism, if
they show evidence of biased motivation the following type of
incidents can be hate crimes: murder, non-negligent man-
slaughter, forcible rape, intimidation, and arson.' 9
The distinction between "hate crime" and "hate speech" is
important. Hate speech, sometimes called "assaultive
speech""0 is "[s]peech that carries no meaning other than the
expression of hatred for some [particular] group, ... especially
in circumstances where the communication is likely to provoke
violence."2 " Examples of hate speech include, for instance,
anti-religious and anti-gay slurs and racial epithets.22 Though
universities and public institutions have attempted to regulate
this type of offensive speech, 3 courts have agreed the First
17. In this Article, the terms "hate crime" and "bias crime" are used
interchangeably.
18. Troy A. Scotting, Hate Crimes and the Need for Stronger Federal Leg-
islation, 34 AKRON. L. REV. 853, 856-57 (2001).
19. FBI, U.S. DEP'T OF JUSTICE, CRIMES IN THE UNITED STATES UNI-
FORM CRIME REP. 1999 59 (1999) (collecting hate crime statistics for murder,
non-negligent manslaughter, forcible rape, aggravated assault, simple as-
sault, intimidation, robbery, burglary, etc.).
20. See MARl J. MATSUDA ET AL., WORDS THAT WOUND: CRITICAL
RACE THEORY, ASSAULTIVE SPEECH, AND THE FIRST AMENDMENT 1 (Rob-
ert W. Gordon & Margaret Jane Radin eds., Westview Press, Inc. 1993).
21. BLACK'S LAW DICTIONARY 1407-1408, (7th ed. 1999).
22. MATSUDA ET AL., supra note 20, at 67.
23. Id. at 1.
Amendment protects hate speech in these contexts and thus,

defendants may not be prosecuted just for using it. 24
Hate crime, by contrast, can be prosecuted under a variety
of federal2 5 and state laws. The vast majority of criminal acts
that are prosecuted as hate crimes are prosecuted under state
law specifically punishing hate crime, which is not surprising
since states have jurisdiction over most criminal matters.2 6
Nearly every state has some type of legislation that criminal-
izes bias-motivated conduct. 2 Prosecutors may charge indi-
viduals who have committed hate crimes under a variety of
types of legislation including ethnic intimidation statutes, stat-
utes that prohibit cross burning, 28 institutional vandalism stat-
utes that prohibit the vandalism and defacement of a variety of
locations, including public monuments and institutions;29 and
anti-mask statutes that penalize wearing a mask, hood, or dis-
guise while in public.3"
When commentators refer to hate crime laws however, they
are generally referring to bias-motivated violence or ethnic in-
timidation statutes. Such statutes are found in many states.3 '
24. See R.A.V. v. City of St. Paul, 505 U.S. 377, 381 (1992) (striking down
city ordinance which prohibited symbols which arouse alarm on the basis on
race, color, creed, religion or gender); Doe v. Univ. of Mich., 721 F. Supp.
852, 868 (E.D. Mich. 1989) and UWM Post v. Bd. of Regents of the Univ. of
Wis., 774 F. Supp. 1163, 1181 (E.D. Wis. 1991) (striking down campus speech
codes).
25. WANG, supra note 4, § 2.1 (discussing the federal legislation under
which hate crimes may be prosecuted).
26. Id. at app. B.
27. Id. (noting that only Wyoming had no legislation specially related to
bias crime).
28. Id. (delineating state cross burning statutes; most states also prohibit
the burning of any other religious symbol).
29. Id. (delineating state institutional vandalism statutes); see e.g., WASH.
REV. CODE ANN. § 9A.36.080(2)(b) (West 1998), § 9.61.160-.180 (West 1998)
("dealing with threats to bomb or injure property."); Wis. STAT. ANN.
§ 943.012 (West 1996) (criminalizing the destruction of religious or other
public institutional structures).
30. WANG, supra note 4, at App. B (delineating state anti-mask statutes);
id. at § 11:1 (generally statutes have exemptions for innocent activities such
as wearing a mask as part of a holiday costume, "by persons under sixteen
years of age," or safety reasons); see, e.g. N.C. GEN. STAT. §§ 14-12.7 to 14-
12.10. (1999).
31. WANG, supra note 4, § 10:2.
Though state hate crime statutes take slightly different ap-

proaches, most statutes do one of the following: (1) make bias-
motivated intimidation a separate crime; (2) "automatically
enhance the penalty" for crimes motivated by forbidden
prejudices; or (3) give a judge discretion to increase penalties
when the crime is motivated by a forbidden prejudice.3 2 The
majority of bias-motivated violence and intimidation statutes
bar threats, harassment, assaults, and trespassing on account of
a person's "race, color, religion, or national origin. ' '33 Some
state statutes of this type prohibit crimes committed because
of an individual's disability status,3 4 because of his or her sex-
ual orientation 3 5 or because of one's gender.36 Less com-
monly proscribed motivations include political affiliation 37 and
38
age.
A frequently misunderstood characteristic of bias-motivated
violence and intimidation statutes is that they proscribe partic-
ular types of motivation, rather than protecting only individu-
als who belong to particular groups. Many critics of hate
crime legislation assert that such laws constitute special pro-
tection for racial and ethnic minorities.3 9 This confuses both
the structure of most hate crime legislation and the empirical
realities of hate crime in most jurisdictions. Hate crime law
protects people of every background. Attacks against anyone
who is victimized because of his or her race, religion, or sexual
32. Id. at § 10:3; see, e.g., D.C. CODE ANN. § 22-4003 (1981) (enhancing
fine and imprisonment penalties for bias-related crimes).
33. WANG, supra note 4, at §§ 10:2-10:3.
34. See, e.g., IOWA CODE § 729A.1, 716.6A (1993). See generally WANG,
supra note 4, at app. B (delineating intimidation statutes which proscribe
disability as motivation).
35. See, e.g., DEL. CODE ANN. Tit. 11, § 1304(a)(2) (Supp. 2000); see gen-
erally WANG, supra note 4, at app. B (delineating state intimidation statutes
which proscribe anti-gay and lesbian bias as motivation).
36. See, e.g., ARIz. REV. STAT. ANN § 13-702.C.14 (2001). See generally
WANG, supra note 4, app. B (delineating state intimidation statues which
include gender as a proscribed motivation).
37. See, e.g., D.C. CODE ANN. § 22-4001(1) (1981). See generally WANG,
supra note 4, app. B (delineating state intimidation statutes which include
political affiliation as a proscribed motivation).
38. Id.
39. See, e.g., JAMES B. JACOBS & KIMBERLY POTTER, HATE CRIMES:
CRIMINAL LAW & IDENTITY POLITICS 77 (1998).
20021 DECIDING WHEN HATE IS A CRIME
orientation-depending on the categories listed under the ju-

risdiction's statute-can be prosecuted under hate crime laws.
Moreover, both national and state statistics show that individ-
uals of a variety of races, religions and other backgrounds are
victimized by hate crimes.4"
B. The Centrality of the Police Role

The police play a crucial, though largely ignored, role in in-
terpreting hate crime law and ultimately in determining
whether the dictates of the First Amendment will be fol-
lowed. 4 The importance of the police role stems in part from
their place as gatekeepers in the criminal justice system.4"
Before most incidents are ever sent to the District Attorney's
office, they are reported to the police, who are responsible for
investigating the crime and in many jurisdictions, for seeking
the initial criminal complaint. 3 As the first organization re-
sponsible for deciding whether an individual's actions consti-
tute a hate crime, the police become very important criminal
justice gatekeepers and interpreters of motivation. If the po-
lice believe that the suspect's actions constitute a hate crime,
they investigate.44 If the investigation confirms their suspi-
cions, they may suggest that the suspect be charged with a hate
crime.4 5 Once the police finish investigating the crime, there is
unlikely to be time to gather further evidence of bias motiva-
tion. The small amount of time that most district attorney's
offices allocate to the investigation of low-level crimes, the cat-
egory into which most hate crimes fall, allows few if any cases
40. FBI, U.S. DEP'T OF JUSTICE, supra note 19, at 59.

41. See generally JAMES GAROFALO & SUSAN E. MARTIN, CTR. FOR THE
STUDY OF CRIME, DELINQ. AND CORR., S. ILL. UNIV., BIAS-MOTIVATED
CRIMES: THEIR CHARACTERISTICS AND THE LAW ENFORCEMENT RESPONSE
(1993) (not formally published report by the Center for the Study of Crime,
Delinquency, and Corrections at Southern Illinois University at
Carbondale).
42. See Brian Levin, Bias Crimes: A Theoretical & PracticalOverview, 4
STAN. L. & POL'Y REV. 165, 173 (1992-93).
43. See JACK LEVIN & JACK McDEVIT'-r, HATE CRIMES: THE RISING
TIDE OF BIGOTRY AND BLOODSHED 165-67 (1993).
44. See id. at 166.
45. See id. at 166-67.
to receive further investigation. If police decide that the case

does not warrant hate crime charges, or they do not include
some type of evidence of bias motivation in their reports, it is
very unlikely the defendant will be charged with a hate crime.
While the police examination of the perpetrator's motive is
crucial in hate crime cases, the requirement to discern motiva-
tion is rare for detectives. Though other types of crimes may
require a particular mens rea, police detectives are not ordina-
rily required to investigate why a person committed a crime.46
As one detective responsible for investigating hate crime said:
In hate crime cases you have to investigate the crime, who
the perpetrator was and what was their motivation. In
other crimes, you have the first two, but evidence of moti-
vation is not required. Even though they say it all the time
on TV that you're 47
looking for motivation in an ordinary
crime, you aren't.
In addition to having to perform tasks to which they are un-
accustomed, detectives' work enforcing bias crimes legislation
is made more difficult by the absence of statutory guidelines
regarding what constitutes evidence of bias motivation. 8 Few
statutes describe what may be used as evidence of bias-motiva-
tion. The lack of statutorily defined procedures and criteria
for selecting permissible evidence of bias motivation would
not be as much of a problem were bias motivation not so diffi-
cult to identify.49 Bias motivation may assume very different
46. See id. at 171.

47. See BELL, supra note 16 (manuscript at 52-53).
48. See Linda Bean, Prosecuting Bias Cases: A Delicate Balancing Act,
N.J. L.J., Sept. 27, 1993, at 4; see generally LEVIN & McDEvirr, supra note
43, at 166-171 (describing hate crime policy and procedures); Susan E. Mar-
tin, A Cross-Burning Is Not Just An Arson: Police Social Construction Of
Hate Crimes In Baltimore County, 33 CRIMINOLOGY 303 (1995) (reviewing
special bias crime procedures in Baltimore County, MD); Chuck Wexler &
Gary J. Marx, When Law and Order Works: Boston's Innovative Approach
to the Problem of Racial Violence, 32 CRIME & DELINQ. 205, 206-16 (1986)
(describing Boston's Community Disorders Unit).
49. See Garofalo & Martin, supra note 41, at 49-51 (describing ambiguity
inherent in those cases in which bias is a motivation); Alison Mitchell, Police
Find Bias Crimes Are Often Wrapped in Ambiguity, N.Y. TIMEs, Jan. 27,
1992, at B2; Revision to hate crimes law is offered; But debate over gays might
kill movement to clarify statute, AUSTIN AM-STATESMEN, Apr. 2, 1995, at B1
(describing law enforcement officers' reluctance to use a "loosely defined"
forms.5 1 Frequently, bias-motivated incidents reported to po-

lice do not involve organized hate groups and are not charac-
terized by graphic racist or anti-religious acts such as cross-
burnings. Consequently, police are not able to rely on tradi-
tional signs of bias motivation. 5 '
C. Murky Constitutional Waters

Police difficulty is compounded by the fact that they must
grapple with the fine constitutional line between hate crime
and hate speech. The Supreme Court cases in this area are
confusing, and as some argue, contradictory.5 2 The Court's de-
cision in a 1992 case, R.A. V. v. City of St. Paul,53 suggested
that hate crimes are difficult to identify because they are so
closely linked to politically protected speech.54 That case ex-
amined the conviction of Robert Viktora, who burned a cross
on the front lawn of the Jones, a Black family who had re-
cently moved to an all-White neighborhood. 5 Viktora was
Texas hate crime law and fear of having a conviction overturned on constitu-
tional grounds); Rhonda Smith & Larry Murphy, Protection from hate
crimes on gay agenda, AUSTIN AM. STATESMAN, Jan. 18, 1995, at B3
(describing a year old hate crime law that does not mention specific racial or
minority groups and the difficulty in enforcing such an ambiguous law).
50. See generally LEVIN & McDEVITr, supra note 43 (describing crimes
motivated by resentment, mission crimes, thrill-seekers and reactive hate
crimes).
51. See Elizabeth A. Boyd, et al, "Motivated by Hatred or Prejudice":
Categorizationof Hate Crimes in Two Police Divisions, 30 L. & Soc'y. REV.
819, 822 (1996).
52. See Craig Peyton Gaumer, Punishmentfor Prejudice:A Commentary
on the Constitutionality and Utility of State Statutory Responses to the Prob-
lem of Hate Crimes, 39 S. D. L. REV. 1, 24-6 (1994); Susan Gellman, Tran-
script: Hate Crime Laws After Wisconsin v. Mitchell, 21 OHIo N.U.L. REV.
863, 865 (1995); Steven G. Gey, What if Wisconsin v. Mitchell Had Involved
Martin Luther King, Jr.? The Constitutional Flaws of Hate Crime Sentence
Enhancement Statutes, 65 GEO. WASH. L. REV. 1014, 1019-20 (1997) (argu-
ing that Mitchell was incorrectly decided); Robert R. Riggs, Punishing the
Politically Incorrect Offender Through "Bias Motive" Enhancements: Com-
pelling Necessity or First Amendment Folly?, 21 OHIo N.U.L. REV. 945, 950
(1995); Terrance Sandalow, Transcript: Opening Address Equality and Free-
dom of Speech, 21 OHIo N.U.L. REV. 831, 843 (1995).
53. 505 U.S. 377 (1992).
54. Id. at 396.
55. See id. at 379.
convicted under the St. Paul Bias Motivated Crime Ordinance,

which prohibited the placement of any object, such as a burn-
ing cross or a swastika, that one has reason to know arouses
anger or alarm in others on the basis of race, color, creed or
gender.56 He challenged his conviction on First Amendment
grounds, arguing the statute was "substantially overbroad and
impermissibly content-based."57 On appeal, the Minnesota
Supreme Court rejected the defendant's claim,58 but limited
the ordinance to expressions of fighting words within the
meaning of Chaplinsky v. New Hampshire.59 In Chaplinsky,
the Supreme Court declined to extend First Amendment pro-
tection to "fighting words" or those "[words] which by their
very utterance inflict injury or tend to incite an immediate
breach of the peace."6
The Supreme Court reversed the Minnesota Supreme
Court's decision.6 Justice Scalia, who wrote the majority
opinion, argued that by not criminalizing all fighting words,
the Minnesota statute was clearly attempting to isolate certain
words based on their political content.6" Calling the singling
out of fighting words based on race, color, creed, religion and
gender, "viewpoint discrimination,"63 Scalia insisted, "St. Paul
has no such authority to license one side of a debate to fight
freestyle, while requiring the other to follow Marquis of
Queensberry rules." 6 4 The Court also held that the city's de-
sire to communicate to the minority population its condemna-
56. Id. at 380. The ordinance provided:

Whoever places on public or private property a symbol, object, ap-
pellation, characterization or graffiti, including, but not limited to, a
burning cross or Nazi swastika, which one knows or has reasonable
grounds to know arouses anger, alarm or resentment in others on
the basis of race, color, creed, religion or gender commits disor-
derly conduct and shall be guilty of a misdemeanor.
Id.
57. Id.
58. See In re Welfare of R.A.V., 464 N.W.2d 507, 510-11 (Minn. 1991).
59. 315 U.S. 568 (1942).
60. Id. at 572.
61. Id. at 391.
62. See R.A.V. 505 U.S. at 396.
63. Id.
64. Id. at 392.
tion of the message in bias-motivated speech was insufficient

to justify a content-based ordinance.6 5 Although the Court
found St. Paul's interests compelling,6 6 it deemed the ordi-
nance not reasonably necessary, maintaining that "[a]n ordi-
nance not limited to the favored topics . . . would have
precisely the same beneficial effect. '67
Less than one year later, apparently in light of much confu-
sion among the states' high courts on the constitutionality of
penalty enhancement statutes, 68 the Court elected to rule on
another bias crime case, Wisconsin v. Mitchell.6 9 In this case,
after viewing the movie "Mississippi Burning," the defendant
Todd Mitchell, who was Black, incited a group of Black men
and boys to attack a 14-year-old White youth.7" Mitchell was
convicted under Wisconsin's bias crime statute which provided
that the penalty for crimes be increased if the victim was se-
lected because of the actor's belief or perception regarding the
victim's "race, religion, color, disability, sexual orientation, na-
tional origin or ancestry."71 Because the jury found that the
victim had been selected because of his race, Mitchell's sen-
tence was increased to the maximum penalty-seven years.72
Mitchell challenged his conviction on Fourteenth Amend-
ment grounds, arguing that the Wisconsin statute violated the
equal protection clause and was vague.73 He also argued that
providing enhanced penalties whenever a defendant intention-
65. Id.
66. Id. at 395.
67. Id. at 395-96.
68. See, e.g., State v. Wyant, 597 N.E.2d 450, 459 (Ohio 1992) (striking
down Ohio's ethnic intimidation statute); State v. Plowman, 838 P.2d 558,
565-566 (Or. 1992) (upholding Oregon's criminal intimidation statute); State
v. Mitchell, 485 N.W.2d 807, 817 (Wis. 1992) (striking down Wisconsin's hate
crime statute), rev'd, 508 U.S. 476 (1993). There is some evidence that there
was police confusion in this area as well. See Katia Hetter, Enforcers of
Hate-Crime Laws Wary After High Court Ruling, WALL ST. J., Aug. 13, 1992,
at B1 (describing law enforcement officials as wary of enforcing hate crime
laws after Supreme Court's decision in R.A.V.).
69. 508 U.S. 476 (1993).
70. Id. at 479-80.
71. Id. at 480 n.1.
72. Id. at 480.
73. Id. at 481 n.2.
ally selects a victim on the basis of race violates an individual's

First Amendment rights. 4 On appeal, relying on R.A.V., the
Wisconsin Supreme Court held that the statute violated the
First Amendment by punishing offensive thought and by chil-
ling speech.75 It also found the statute to be unconstitutionally
overbroad.76
In Mitchell, the Supreme Court surprised many by reversing
the Wisconsin Supreme Court's decision, insisting that both
the punishment of Mitchell's discriminatory conduct and use
of Mitchell's speech as evidence of discriminatory motive was
permissible. 77 The Court held out as examples two other con-
texts where the motive was considered-the sentencing of ag-
gravated crimes and state and federal anti-discrimination
law.7 8 The Court held that to assign a harsher penalty when
the defendant selected his victims for discriminatory reasons is
consistent with these other contexts and does not violate the
First Amendment. 79 The Court insisted that Wisconsin's de-
sire to prohibit retaliation by the community that was victim-
ized by the bias-motivated conduct provides sufficient
evidence that the penalty enhancement is not based on disa-
greement with the offender's constitutionally protected
beliefs."0
D. The First Amendment Standardfor Hate Speech

It seems clear that in deciding to uphold the use of speech as
evidence of motivation, the Court did not intend to allow juris-
dictions to criminalize pure hate speech.81 In Mitchell, there
are two signs that pure hate speech remains protected.82 First,
74. Id. at 481.

75. Id. at 481-82.
76. Id.
77. See id. at 485-90.
78. Id. at 485-87.
79. See id. at 487-88.
80. Id. at 488.
81. See generally id.; R.A.V. 505 U.S. at 382. (governments disagreeing
with ideas expressed are prevented by the First Amendment from prohibit-
ing speech).
82. See generally Mitchell, 508 U.S. at 476 (1993) (holding that penalty
enhancement is not prohibited by the First and Fourteenth Amendments).
the Court explicitly declined to overrule two of its earlier cases

that provided protection for hate speech,8 3 R.A.V. and Daw-
son v. Delaware.' The Court declined to overrule R.A.V., in-
sisting that the ordinance at issue in R.A.V. "was explicitly
directed at the expression (i.e., "speech" or "messages")." 5
Here, the Court draws a line between punishing speech and
punishing an act when the nature of the act is in part a product
of biased motive. 6 Second, the Court suggests that First
Amendment protection exists for hate speech or, at least for
the expression of biased ideas. The Court stated that a sen-
tencing judge may not take into consideration a "defendant's
abstract beliefs, however obnoxious to most people." 87 The
Court supported this proposition with Dawson, a case decided
the previous term, in which the Court held that the introduc-
tion of evidence that the defendant was a member of a White
supremacist gang violated his First Amendment rights. 88
R.A.V. and Mitchell provide an idea of the constitutional
limits established by the Supreme Court for the regulation of
hate speech and for the regulation of bias-motivated conduct.
First, from R.A. V., we learn that states may not single out bias-
motivated speech or expressive acts for special regulation,
even when such are defined as fighting words. Protected
speech and association may not be made a crime, nor may it,
as it was in Dawson, be used to increase the penalty for a
crime for which it is not connected.8 9 In Mitchell, the Court
emphasized that violent conduct associated with hate crimes is
neither speech nor expressive conduct protected by the First
Amendment. ° Thus, jurisdictions may punish hate crime with-
out violating the First Amendment. Jurisdictions that have
penalty enhancement statutes can use speech as evidence of
motivation that a hate crime was committed so long as it is
83. Id. at 585-87.

84. 503 U.S. 159 (1992).
85. Mitchell, 508 U.S. at 487 (internal quotations omitted).
86. See id.
87. Id. at 485 (citing Dawson, 503 U.S. at 167).
88. Id. at 486 (citing Dawson, 503 U.S. at 167).
89. Dawson, 503 U.S. at 166-67.
90. See Mitchell, 508 U.S. at 484.
discriminatory conduct and not just speech that is being

punished.
PART II. PRACTICAL CONCERNS

IMPACTING ENFORCEMENT
A. Critics' First Amendment Concerns
The narrow standard created by the Supreme Court in
Mitchell requiring that the police search for motivation height-
ens the salience of critical arguments regarding enforcement.
First Amendment critics of hate crime legislation, both before
and after Mitchell, have made both doctrinal and practical ar-
guments questioning these statutes' constitutionality. 9 ' Below
I discuss several of the practical arguments addressing whether
hate crime legislation can be enforced constitutionally. The
critics' disagreements with hate crime legislation revolve
around the issue of motivation, and the likelihood that enforc-
ers will interfere with protected speech and association.
While speech can be used as evidence in hate crime cases,
Dawson and Mitchell seem to limit the use of speech to evi-
dence of motivation for the crime. 92 Critics are concerned that
those enforcing hate crime laws will be unable to uncover per-
petrators' motivation and thus, will use protected speech as ev-
idence of the crime's motivation. Part of this stems from the
nature of motivation. Several of these scholars suggest that
bias motivation is something hidden, difficult to disentangle,
or otherwise impossible to discern.9 3 One critic writes,
"[A]ssessing motive presents more than the problem of some-
how reading the defendant's mind, for the defendant himself
may not know his true motive. Social psychology is full of re-
search that demonstrates people often are unaware of what is
91. See supra note 52. Though scholars criticize hate crime legislation on
several fronts, this Article only addresses critics' arguments regarding
enforcement.
92. See generally Dawson v. Delaware, 503 U.S. 159 (1992): Wisconsin v.
Mitchell, 508 U.S. 476 (1993) (noting that defendant's motive is an important
factor when sentencing for crimes).
93. See supra note 53.
truly influencing their behavior."9 4 In critics' eyes, the slippery

nature of bias motivation means that law enforcers will be
forced to search for evidence of the crime's motivation by
looking to cues from words, thoughts or associations that are
protected by the First Amendment.9 5
Critics are also concerned that an offender's hate speech will
be used as evidence when hate crime legislation is enforced.9 6
Many critics assume that what was said during the crime serves
as the starting point in the search for evidence of bias motiva-
tion in hate crimes. 97 Critics are fearful that once enforcers
have slurs, epithets or other speech evidence, they will never
really get beyond this point. 98 Enforcers will use the defen-
dant's biased utterances (or symbols, in the case of property
crimes) during the commission of the crime as the only evi-
dence of bias motivation. 99 From a First Amendment perspec-
tive there are two worries here. The first is that the defendant
would be punished for saying the words, thereby obviating the
First Amendment protection for bigoted beliefs. °°
Critics of hate crime legislation raise an important issue
here. For example, Mitchell is silent on the question of
whether, in situations in which words are the only evidence of
motivation, it is acceptable to charge persons with violating
hate crime laws.' Given the Court's explanation of these is-
sues in Mitchell, it is possible that even in instances in which
hate speech serves as the only evidence of bias motivation,
hate crime charges are constitutional. Allowing an additional
94. Gerstenfeld, supra note 6, at 270; see, e.g. Robert I. Corry, Jr., Burn
This Article: It is Evidence in Your Thought Crime Prosecution, 4 TEX. REV.
L. & POL. 461 (2000).
95. See, e.g., Susan Gellman, Sticks and Stones Can Put You in Jail, but
Can Words Increase Your Sentence? Constitutional and Policy Dilemmas of
Ethnic Intimidation Laws, 39 UCLA L. REV. 333, 359 (1991); Martin H.
Redish, Freedom of Thought as Freedom of Expression:Hate Crime Sentenc-
ing Enhancement and First Amendment Theory, 11 CRIM. JUST. ETHICS 29,
30 (1992).
96. See JACOBS & POTTER, supra note 39, at 109-10.
97. Id. at 103.
98. See id.
99. See id.
100. See id.; Gellman, supra note 95, at 363.
101. See id.
punishment under hate crime law in instances when there is

hate speech and evidence that the crime was committed for
other reasons, however, seems inconsistent with the protection
for hate speech the Court granted in R.A.V. and Dawson.
The second concern stemming from enforcers scrutinizing
the words uttered during the incident as evidence of bias moti-
vation, is that individuals with constitutionally benign motives
will be penalized under hate crime laws because enforcers are
unable to disentangle criminal action from protected expres-
sion of speech or thought.1" 2 Critics' articles are replete with
"hard cases" that seem clearly unintended by the law but have
been allegedly punished as hate crimes. Susan Gellman pro-
vides an example that she insists will fall within the ambit of
the bias crime statutes, even though the alleged perpetrator
had benign motives. Her hard case involves a "racial cham-
pion," White woman A, who, hearing another White woman
B, calling C, an African American child, a racist name, threat-
ens B in an attempt to protect C. 10 3 Gellman suggests that
under many hate crime statutes, both A and B, two individuals
with wholly different motives could be prosecuted. 1°4 One
real case, widely cited by critics, involved an African American
man in Florida who was charged with a hate crime after he
called a White policeman trying to break-up a domestic distur-
bance a "cracker."1 5 That defendant, one critic writes,
"clearly was not motivated to commit his crime because of the
policeman's race . . . His name-calling is not being used as
evidence that he was hate motivated. Instead, he is being
prosecuted for evidencing prejudice by calling the officer a ra-
cial epithet." ' "6 Hate crime charges against the man were later
17
dropped. 1
102. Gellman, supra note 95, at 364-65.

103. See id. at 356.
104. Id. at 355-56.
105. Id. at 361 n.134; Gerstenfeld, supra note 6, at 279; Barbara Dority,
The Criminalizationof Hatred, 54 HUMANIST 38 May/June 1994, available
at http://ehostvgwl1.epnet.com.
106. Gerstenfeld, supra note 6, at 279.
107. Gellman, supra note 95, at 361 n.134.
As the frequent use of the example of the police officer in

Florida suggests, some scholars are particularly worried be-
cause it is police officers that are given discretion to enforce
hate crime law.' 08 Their assumption is that police will trans-
form incidents that are obviously not bias-motivated into hate
crimes. One critic who acknowledges that police generally
have discretion to deal with crime bemoans police discretion in
hate crime cases. He writes:
If some sort of word was said, some sort of slur was used,
does not that make what is otherwise a generic crime into a
hate crime as well? I think that it is extremely problematic.
And though law enforcement officers exercise a fair
amount of discretion with every law at the crime scene, cer-
tainly these decisions will be even more sensitive and diffi-
cult with hate crime laws. 10 9
The broad inquiry into words, thought, and association that
critics assume will occur as enforcers investigate hate crime
leads to yet another First Amendment problem: one of over-
breadth leading to the chilling of speech, thought, and associa-
tion. Although the Mitchell Court rejected this argument as
too attenuated, scholars have expressed the concern that en-
forcers will not just investigate the defendant's words or ac-
tions during the crime, but also "all of his or her remarks upon
earlier occasions, any books ever read, speakers ever listened
to, or associations ever held."' 10 In a similar vein, another
scholar describes a very intrusive inquiry required in all "com-
petent" hate crime prosecutions. He asserts that evidence
would have to be collected regarding, among other things, the
past expressions of hatred or tolerance of the individuals, the
beliefs and thought patterns of persons with whom the defen-
dant associated." 1 One scholar worries that racist jokes will
be used as evidence of guilt.' 12 Gerstenfeld writes: "Unless
the defendant is an avowed member of the Ku Klux Klan, or
108. See Richard Cordray, Free Speech and the Thought We Hate, 21 OHIo
N.U.L. REV. 871, 880 (1995); JACOBS & PortER, supra note 39, at 92-100
(expressing skepticism regarding police enforcement).
109. Cordray, supra note 108, at 880.
110. See Gellman, supra note 95, at 360.
111. Riggs, supra note 52 at 953.
112. Gerstenfeld, supra note 6, at 270.
another hate group, it might be difficult to determine his mo-

tive. One can imagine prosecutors canvassing the defendant's
neighbors and coworkers to discover how many times he made
' 3
racist comments or told an ethnic joke." "
The worry about the scope of law enforcers' inquiry is a
good one, for the Court did not specify in Mitchell how far
back one might go in seeking evidence of motivation, or what
might count as evidence of motivation in bias crime cases.
Leaving this discretion up to those enforcing the law creates
questions about whether defendants' privacy will be protected.
While this is not a First Amendment concern, it is important.
In addition, depending on how enforcers behave, it creates the
possibility, particularly in cases where there is no other evi-
dence of bias motivation, that enforcers will use the defen-
dant's abstract beliefs, wholly unconnected to the crime, as
evidence of bias motivation. The use of such evidence is a
clear violation of the standard established by the Court in
Dawson.
B. Empirical Evidence and Further Concerns

The evidence from the field gives cause for further concern
regarding how enforcers are behaving with respect to the First
Amendment. One study of detectives classifying hate crime in
a large police department revealed that police resist enforcing
hate crime law.' 4 According to this study, the general percep-
tion among the majority of officers was that "only a few crimes
[could] . . . 'really' be called hate motivated, such as a cross
burning on the lawn of an African American family or the or-
ganized activities of the KKK or Aryan Nation." 115 The au-
thors of the study found that police at all levels-patrol
officers, detectives and commanding officers-expressed re-
sentment over the departmental policy giving priority to hate
crimes. 116 Officers dismissed hate crimes as "'overkill,'
'mostly bull,' 'a pain in the ass,' 'media hype,' 'a giant cluster
113. Id.
114. See Boyd et al., supra note 51, at 827.
115. Id.
116. Id.
fuck."'" 7 Even those who thought that hate crimes were a

problem did not feel they deserved priority over what they
considered "real" crime-burglary, theft, and rape. 11 8 The
detectives' belief that hate crimes were not a problem in the
city translated into different, though equally disturbing types
of behavior. 19 Detectives affiliated with one precinct, police
"Division A" categorized only cases marked by the clearest
signs of bias as "normal hate crimes"-cases with racial epi-
thets, those with symbols of hate, and those involving hate
groups.1 20 The detectives in Division A rejected all cases that
did not have those features. 2 ' By only viewing as hate crimes
the cases with the clearest signs of bias, the detectives in Divi-
sion A were, strictly from a First Amendment perspective, en-
forcing the law in the proper cases-those cases that appear
unambiguously motivated by bias. Adopting the normal
crime/hate crime typification most likely led them to under-
enforce the law, however. The routines used by the detectives
in Division A may have caused them to miss crimes that did
not contain extreme manifestations of bias, but were nonethe-
less bias-motivated.
In the alternative, the behavior of the police detectives in
the other police precinct, "Division B," was, from a constitu-
tional perspective, even more troubling. The detectives in Di-
vision B ignored the issue of motivation altogether. 2 2 They
behaved as critics expected them to, classifying incidents as
hate crimes without inquiry into whether they were actually
motivated by bias. 123 Thus, cases that were not bias-motivated
could have been identified as hate crimes.124 The Detectives
in Division B left it up to the district attorney (DA) to deter-
mine the perpetrator's motivation. 1 25 If the detective has con-
ducted little or no inquiry in this area, however, the DA may
117. Id.
118. Id. 827-28.
119. Id. at 827.
120. Id. at 839.
121. Id. at 832-40.
122. Id. at 845.
123. Id. at 840.
124. Id.
125. Id. at 845.
have little evidence from which to draw conclusions regarding

the perpetrator's motivation.
Another study, this time of bias units in New York City and
Baltimore, raises different questions about the enforcement of
hate crime law. 126 The authors of the study indicate that in a
number of cases "the primacy of the element of bias was am-
biguous ... [and that] ... [o]ften the police have to deal with
cases that seem to contain bias as a secondary motivation...
[or] an additional motivation.' 27 Another issue that effects
the classification of an incident "include[s] the weight to be
accorded [to] the victim's perception relative to other fac-
tors ... [and] ... whom to believe ... when there are conflict-
ing statements about an incident"'128 These questions are
important. Unfortunately, the study does not describe in de-
tail how police address these issues.
News reports from around the country seem to support the
idea that officers find the situations in which hate crimes occur
ambiguous.129 One detective from the New York City Police
Department is quoted as saying, "I hate these cases because
they become real mysteries . . . [E]verybody jumps on the
bandwagon but nobody has the facts."' 131 In cases that are am-
biguous, officers may question whether the perpetrator was
motivated by bias or whether the incident was a prank and not
aimed at a particular victim. From these news stories it is un-
clear whether ambiguous cases are the exceptions or, as many
critics of bias crime legislation would have us believe, the rule.
The news stories also fail to provide evidence regarding
whether police officers are equipped to sort through these in-
terpretive difficulties systematically. The worries that First
126. Garofalo & Martin, supra note 41, at 33-45 (comparing responses of
law enforcement officers to bias crimes).
127. Id. at 49-50.
128. Id. at 50.
129. See Leslie Berger, Police Seek Motive in Shop Fire, L.A. TIMES, April
21, 1992, at 3; Meg McSherry Breslin, Vandals Leave Trail of Racist Graffiti
Homes, Cars Damaged in Joliet Neighborhood, CHI. TRIB., September 6,
1999, at 1; David Birkland, Lake Forest Park Hit with Racist Graffiti, Police
Unsure Whether Vandalism Was Hate Crime or Prank, THE SEATTLE TIMES,
May 12, 2001 at B2.
130. JACOBS & POTTER, supra note 39, at 91.
Amendment critics of hate crime legislation and others con-

cerned with their enforcement have raised creates three main
implications for enforcement. First, many critics argue that en-
forcers of hate crime laws are unable to discern the defen-
dant's motive and thus will seize on the defendant's speech
during the crime as evidence that the crime was bias-moti-
vated. 13 1 Other critics worry not about the narrowness of the
inquiry into motivation, but its breadth, worrying the enforcers
of hate crime legislation will reach into areas of protected
thought and association as they hunt for bias. 1 32 Finally, crit-
ics' charge that bias motivation is so difficult to discern, and
there are so many ambiguous cases that many individuals with
wholly benign motives will be charged with violating hate
crime laws.13 3
PART III. ARE THE CRITICS RIGHT? -THE

POSSIBILITY OF CONSTITUTIONALLY
ENFORCING HATE CRIME LAW
Examining the reality of bias crime law enforcement is one
method of empirically testing concerns about the First Amend-
ment dangers created by bias crime legislation. Using data
collected in "Center City," a metropolitan city, this section will
evaluate whether individuals are charged with hate crime vio-
lations based on the use of biased language, or words alone;
and whether the enforcement of bias crime legislation reaches
into areas of protected speech. This section focuses on the be-
havior of officers in the "Center City" police hate crime unit,
appraising police officers' ability to enforce vague statutes, and
evaluates their treatment of hate speech, beliefs, and conduct
protected by the First Amendment.
A. The Anti-Bias Task Force

Between September of 1997 and May of 1998, I conducted a
study that focused on the detectives in a hate crime unit in
131. See supra p. 46.

132. See supra pp. 42-45.
133. See supra pp. 42-47.
"Center City,' ' 34 a large city in the United States. During this
time period, I was granted access to observe the detectives,
and was also allowed access to their case files spanning two
decades, and to most of their other records. 35 The Center
City "Anti-Bias Task Force" (ABTF), the unit I studied, was
formed in the late 1970's, two years before the state's hate
crime statute was passed. 36 The unit was created to address
the violence many minorities experienced after they moved
into all-White neighborhoods. 137 The unit was supposed to re-
spond to three types of situations: 1) crimes where there was
evidence that victim(s) were selected on account of race, or
incidents and situations occurred that were precipitated by ra-
cial motives; 2) incidents of group activity and demonstrations
where there was a potential for inciting group conflict and vio-
lence; and 3) incidents where there were concerted efforts by a
person or a group of persons to deprive minorities of free ac-
cess to any neighborhood or community within the city.' 38 Af-
ter the state civil rights law-which served as the jurisdiction's
hate crime statute-was passed, the unit became responsible
139
for investigating and preparing hate crime charges.
As a detective unit, the ABTF received case files after the
officers who reported to the scene of a crime determined that
an incident was possibly bias-motivated. Police department
policy required those on the scene to forward the cases to the
ABTF if they believed a case to be bias-motivated.
134. The city's actual name and some of its identifying details have been
changed to protect the identity of the respondents.
135. The study, its methodology, and its conclusions are described in much
greater detail in BELL, supra note 16.
136. Id. (manuscript at 29).
137. Id.
138. Special Order 78-28 from "Center City" to ABTF (unpublished doc-
ument on file with the author).
139. To preserve the confidentiality of respondents, the statute is not
cited.
B. Determining Bias: Detectives' systematic search for

motivation
Bias crime legislation is not, as critics suggest, so vague that
police officers have no means of enforcing it systematically.1 40
My observation of detectives' practices revealed the classifica-
tion of bias crime to be quite systematic. Far from random, the
identification of bias crime is a multifaceted process, in which
detectives weighed the facts and circumstances of the crime as
well as the characteristics of the case against their experience.
The decision that officers had to make was twofold: officers
first identified the bias-motivation and then made strategic de-
cisions about whether to actually seek charges. Below are the
rules of thumb that officers used to identify and select cases
appropriate for hate crime charges.
Detectives developed filtering mechanisms and employed
rules of thumb to isolate bias motivation in part because many
of the cases referred to the unit were not bias-motivated. The
unit received a high percentage of non-bias-motivated cases
because the ABTF encouraged patrol officers to send any case
to the unit that could possibly be bias-motivated. This resulted
in large numbers of cases being sent to the unit in which the
perpetrator had used slurs and epithets while committing a
crime. The unit encouraged patrol officers to be over inclusive
rather than under inclusive in their forwarding of incidents be-
cause as detectives, they were trained in investigation and
wished to take filtering power out of the hands of less well-
trained patrol officers. In addition, as a check on patrol, the
ABTF also had the Reports Bureau forward any cases with
the possibility of bias to the unit. In keeping with the unit's
140. See generally Jeannine Bell, PolicingHatred: Police Bias Units and the
Construction of Hate Crime, 2 Mich. J. Race & L. 421, 443 (1997) ("While
there may be no inherent difficulty in identifying bias crimes, as free speech
absolutists suggest, separating bias crimes from free speech may at the very
least require police officers to make extremely fine legal distinctions, a job
that may require a clear understanding of the vagaries of First Amendment
jurisprudence. In addition, police officers' jobs are often complicated by the
lack of public understanding about what bias crime laws prohibit.").
141. The following discussion of the routines that the detectives in Center
City use to identify hate crime is drawn from BELL, supra note 16 (manu-
script at 141-152).
request, the Reports Bureau forwarded all reports that had

slurs or epithets and a difference in race between the victim
and the perpetrator. This drastically increased the unit's
caseload, since vulgarity, especially slurs and epithets, were
common in acts of violence. For instance, one officer esti-
mated that slurs and epithets were used in42 70% of incidents
with injuries and 90% of traffic accidents.'
C. Basic Requirements for Hate Crimes

Detectives' practices reveal that hate crimes had two basic
requirements. The perpetrator and victim had to have differ-
ent identities-race, gender, sexual orientation, etc.-and the
context in which the crime occurred needed to be one that sug-
gested that it had been motivated by bias, rather than some
other emotion-anger, revenge, jealousy, etc.
1. Different Identities
The first and most important requirement was that the vic-
tim and perpetrator have different identities or backgrounds.
In the vast majority of cases if detectives accepted that the vic-
tim had been attacked because of his or her race, the victim
and perpetrator had to have different racial backgrounds.
Detectives did not believe that bias-motivated incidents hap-
pened within the same identity group; incidents in which the
victim and the perpetrator had the same race were routinely
dismissed as having other origins.
The heavy presumption against bias-motivation among indi-
viduals of the same race applied to cases involving anti-gay
bias as well. It was assumed that gays could not commit hate
crimes against other gays. In one case involving one Black gay
man who was attacked by another and called a "faggot," two
detectives called the man "a victim of no crime," since the
other man was also gay.
There were two important exceptions to the practice of dis-
missing same-group attacks. The first involved heterosexual
men who were attacked by other heterosexuals because their

attackers believed that they were gay. The unit had investi-
gated several cases that fit this scenario. For example, in one
case the victims, who were not gay, were in a taxicab and ap-
proached by a group of men who said, "Get out of the car,
faggots." After one man exited the car and ran, the perpetra-
tor gave chase. When he caught the victim, he began to kick
him, screaming, "Fucking homos." The unit sought hate crime
charges in this case because the victim had been attacked be-
cause he was presumed to be gay. In this case, the two defend-
ants pled guilty to both criminal charges and hate crime
43
charges.'
The second important exception to the practice of dis-
missing same-group attacks concerned attacks against one
member of an interracial couple. ABTF detectives accepted
that same race attacks against a member of an interracial
couple were frequently bias-motivated. The unit had seen par-
ticularly dramatic examples of this, especially involving Whites
attacked by other Whites for dating minorities.
The practice of dismissing cases when individuals had simi-
lar identities meant that detectives were often unable to appre-
ciate the fact that victims and perpetrators had multiple
identities and myriad perspectives on these identities. In the
case involving the gay victim who the detectives decided was
not a victim of a hate crime, the detective did not even explore
the possibility that the hate crime could be a race-based crime,
or that the perpetrator was a "self-hating gay" and the attack
occurred because of the victim's sexual orientation. 144
Automatic dismissal of all cases in which both the perpetra-
tor and the victim are gay means that detectives may miss
cases that should be treated as hate crimes. Center City had
cases involving so-called self-hating gays who targeted and
killed other gay men. Detectives told of several homicides that
occurred in a public area where many gay men had sex. The
killer selected sex partners and clubbed each to death while
the two were engaged in intercourse. The detectives said that
when they caught the man, he claimed that he committed the

144. Id. (manuscript at 142-43).
crimes because he hated gays.' 45 In 1991, a similar case oc-

curred in Minneapolis: a gay man committed two anti-gay
murders on the eastern banks of the Mississippi in a secluded
area frequented by gay men. The perpetrator discussed his
self-hatred and hatred of other gay men in Arthur Dong's doc-
umentary film, Licensed to Kill (1997).146
2. Looking to the Crime's Context

Rather than just using speech as evidence of bias motiva-
tion, as several critics assume that enforcers of bias crime legis-
lation will do, detectives used mechanisms that helped them
look beyond the defendant's speech for clues to his or her mo-
tivation. Looking widely for evidence of the motive for the
crime did not, as critics argue, mean that detectives scrutinized
the defendant's beliefs or association. Detectives looked to
the setting and other situational aspects of the crime in order
to shed light on why the incident occurred. The setting of the
crime included the crime's precise location, whether the crime
occurred in or outdoors, and what the perpetrator and the vic-
tim were doing immediately before the crime. In exploring
these situational aspects of the crime, the detectives were
looking for evidence that the crime was not motivated by bias,
but rather by anger, jealousy, or revenge. These are a few of
the motivations that ABTF detectives wish to rule out when
deciding whether a bias crime has occurred. If a crime were
motivated by jealousy over a woman, to use an example that
detectives sometimes mentioned, it was not a hate crime. 4 7
As part of evaluating context, detectives were trained to ask
whether the incident could have happened or would have esca-
lated if the perpetrator and the victim were the same race. If
the incident would still have occurred and would have un-
folded in the same manner even if the perpetrator and victim
had the same identity, then the detectives assumed that the
incident was not a hate crime.
145. Id.
146. Videotape: License to Kill (Arthur Dong 1997), available at http://
www.deepfocusproduction.com.
147. Bell, supra note 16 (manuscript at 143).
a. "The Typical Non-Hate Crime"

Detectives did not examine the setting of every crime and
weigh whether the perpetrator was motivated by anger, jeal-
ousy, or revenge. Instead, they used shortcuts to filter out
non-bias-motivated cases. These shortcuts were based on inci-
dents that were repeatedly referred to the unit that had been
determined to be non- bias-motivated. I call these the "typical
non-hate crime." The typical non-hate crime involved five sce-
narios-cases involving drugs, fights, retaliation for earlier
fights, traffic accidents, and neighbor disputes. These cases
were among the ones in which detectives were able to identify
the perpetrators' motivation. Detectives were frequently not
able to determine what motivated an incident (and no hate
crime charges were sought). Typical non-hate crimes were the
types of cases in which the detectives decided that the incident
was not motivated by bias. One detective explained these
types of cases as incidents that were "less than 51% bias-moti-
vated."' l When asked for an example he replied, "[a] traffic
accident between someone Asian and someone White. Racial
epithets, slurs are exchanged."' 4 9
Typical non-hate crimes were not characterized by a specific
set of events. As long as incidents that were really about "traf-
fic" involved cars, and neighbor disputes involved individuals
who lived near each other, a non-hate crime could occur in
many ways. Any and every case involving a car could really be
over traffic. Any situation involving a drug transaction could
really be about drugs. One example of such cases involved a
young White man who had been shot in the buttocks. He
claimed that he had been shot by a group of Black men and
that the crime was racially motivated. ABTF detectives inves-
tigated and determined that the victim had placed a gun in his
back pocket for protection during a drug transaction. During
the meeting the gun discharged accidentally.150
For the detectives, deciding that something is bias-motivated
began with the process of ruling out alternate explanations.

149. Id.
Since every incident involving traffic, or drugs, or neighbors,

for example, could be non-bias-motivated, incidents were first
evaluated against typical non-hate crime. Real hate crimes
then became defined, in part, in opposition to the typical non-
hate crime. In this way, ABTF practices were distinct from
those other detectives investigating hate crime. Instead of cre-
ating archetypal hate crimes with particular characteristics-
cases with extreme violence, those involving members of or-
ganized hate groups, and other significant outward manifesta-
tions of bias-and calling these the "normal hate crimes,"
detectives identified classes of crimes frequently referred to
the unit that should not be considered hate crimes.
b. Weeding out False Reports
In trying to discern whether an incident was a typical non-

hate crime, the detective's initial task involved the ordinary
detective work of trying to "figure out what happened." Part
of figuring out what happened required sorting the conflicting
stories that emerged from interviewing suspects and victims
and often figuring out who was telling the truth and who was
lying. Though a sample of the case files revealed less than one
manufactured hate crime a year, the specter of false reports-
incidents individuals manufactured to extract some type of
benefit-loomed large. Nearly every detective mentioned that
sometimes individuals made things up to manipulate the sys-
tem. When asked for examples, detectives generally gave the
same ones: prominent cases in which individuals had deliber-
ately claimed to be a victim when he or she was not, either for
attention or in order to receive some tangible benefit.
Detectives were well aware that some individuals might be
lying in order to attract attention or sympathy. One such inci-
dent involved a Jewish college student who reported that swas-
tikas and anti-Semitic threats had been drawn on her door.
After several incidents, the college installed a hidden camera
that captured the woman calmly stepping over a page with a
swastika on it that had been slid under the door. The note was
not reported to the police until the next day when the woman's
roommate discovered it. The victim's cavalier attitude toward
the note when she believed herself unobserved signaled to the

police that she was the person who left the note. The detec-
tives surmised that the victim's reporting of the earlier notes
151
had been a plea for attention.
Another situation that detectives in the unit encountered on
several occasions involved individuals living in public housing
who faked hate crimes so that the housing office would move
them to another housing development or give them a Section 8
certificate allowing them to move into private housing. One
detective explained:
There is money to be made in false civil rights reports. If
someone wants a Section 8 certificate, right now they are
not taking applications unless one is a victim of a hate
crime. We had an incident when a guy who was gay knew
that he could get a Section 8 certificate if he said that his
civil rights were violated. He said that he was being
harassed, that he had no entrance to certain courtyards, and
[that] he could not park his car in certain areas. Sometimes
people will say they are being harassed and that they want a
transfer to a certain housing development. Then you find
out they have a mother or sister in that development. 152
One downside to the unusual degree of service that the unit
provided to victims was that it attracted the attention of those
who wanted the police to investigate crimes that had happened
to them. A variation on the false report was the victim who
deliberately misrepresented what happened to him or her in
order to get the system to pay attention to the crime. Officers
were forced to weed out cases in which the victim had added
slurs and epithets in order to get the police-any police-to
investigate the crime. One detective remarked:
People realized that they were getting more attention.
They were aware of our success rate, also aware of other
steps. Other things were done to protect you. People
started wising up, if you say it's racial you get personal at-
tention-round-the-clock protection, nail the guy to the
wall [when we catch him] high bail or no bail. That's what
we started asking for in civil rights cases. They started to
think, "I want to really slam this guy who hurt me so I'm

going to say it's racial and I'm going to get attention." Like
when people want someone to come 1 53 right away and they
report an OT, officer in trouble.
D. Policing crime, not speech

When asked about the importance of slurs and epithets, or
as they called it, "language," detectives denied that language
used by the perpetrator automatically signaled the necessary
bias to establish motive. Language alone, detectives insisted,
was not enough to prove the crime was motivated by bias."5 4
One had to look to the suspect's actions and the crime's con-
text to evaluate whether the suspect would still have commit-
ted the crime if the victim were of another background. If for
instance a detective were investigating an assault that was re-
ported as a racially motivated crime and the victim of the
crime was Asian American and the perpetrator was White, the
detective would evaluate whether the crime would have still
happened if the victim were White. If the detective came to
the conclusion that the crime would still have occurred if the
races of the perpetrator and the victim were the same, then the
crime would not be considered bias-motivated. One detective
explained:
It's not language alone. You investigate actions. Words are
the secondary buttress of actions. They prove the history of
the action; prove that they went after someone because of
race. You have to put the blinders on. Is this something the
perpetrator would have done if the victim were Black or 55
White? You have to consider both sides, walk the line.'
Critics worry that hate crimes statutes are overbroad and
will have a chilling effect on protected speech. It is unclear
whether individuals in Center City felt "chilled" and were less
reluctant to use hate speech, or other speech that may be con-
strued as evidence of motivation after hate crime statutes were
enacted.156 Some individuals were clearly not deterred by hate

155. Id.
156. Between 1990 and 1998, the number of possible hate crimes the unit
investigated increased. In light of this, some might contend that an increase
crime legislation. The unit had had several cases with repeat
offenders, individuals who had committed a number of similar
bias-motivated incidents, frequently against members of the
same victim group. For these individuals, their behavior in
similar cases sometimes served as an important contextual va-
riable. One detective explained:
We look to the totality of the circumstances, criminal action
and the words and also at the incident ... Language alerts
us to the possibility of bias, but it's just the possibility.
It's not clear-cut. It's easier for us when you have, as
we've . .. had, the same defendant for two crimes. It's hard
because of the totality of the circumstances. None of us are in
the minds of the perpetrators. They may have acted because
they're ticked off because someone is hitting on their girlfriend
or because the person is of a different race and is hitting on the
girlfriend." 7
The comments of the two detectives quoted above are rep-
resentative of the views of most ABTF detectives. In cases in
which slurs or epithets had been used detectives were very re-
ceptive to the possibility that bias had not motivated the inci-
dent. The typical non-hate crime and their use of context are
indicative of their desire to look beyond language for other
indications of bias motivation.
E. Relationship and Bias

Further evidence of the importance situational factors to
detectives' determination that a crime has been motivated by
in the number of cases indicates that the community was not "chilled" by
hate crime legislation. I think that this explanation is far too simplistic.
First, as other scholars have recognized an increased number of hate crimes
can be attributed to a variety of factors, such as increased reporting. See,
e.g., JACOBS & POTTER, supra note 39, at 58-59. Second, chilling effects on
speech address the effect on speech not formally covered by the restriction.
EUGENE VOLOKH, TH-E FIRST AMENDMENT: PROBLEMS, CASES, AND POL-
ICY ARGUMENTS 337-40 (2001). In the case of hate crime, critics worry
about the chilling effect on protected speech. Unless one were to actually
conduct a survey of the community, one could not evaluate whether the
community felt chilled and neglected to speak or otherwise express them-
selves because of hate crime legislation.
157. Bell, supra note 16 (manuscript at 147).
bias can be seen in the detectives' evaluation of the relation-

ship between the victim and the suspects. ABTF detectives
identified the relationship between people as an important
part of the context of the crime. Language was discounted as a
factor indicating motivation in exchanges between people who
knew each other. As other research has found,1 58 a pre-ex-
isting relationship, good or bad, between the victim and the
suspect is a sign to the police that an incident is not bias-moti-
vated. 159 One former detective complained about a case, say-
ing, "it was ...a gay guy complaining about his boyfriend. It
was not a legitimate case."' 160 In another case, a gay man re-
peatedly tried to get civil rights (hate crime) charges against
someone with whom he had had consensual sex in the past.
Like prosecutors who refuse to bring charges in rape cases in
which the victim may have had previous consensual sex with
the perpetrator,16'ABTF detectives refused to consider the
gay victim's case for civil rights charges. 162 They insisted that
because the victim and the perpetrator had consensual sex on
a previous occasion, what had happened to the victim was not
163
a hate crime.
Cases involving people who had some other relationship,
such as friends or neighbors, were considered problematic by
those enforcing the law in Center City. ABTF detectives were
not alone in assuming that racial or anti-gay bias was less likely
158. See Martin, supra note 48, at 314. Martin's study of verified and un-
verified racial, religious, and ethnic incidents by police in Baltimore County,
Maryland found that unverified incidents more often than not had a history
of conflict between the parties.
159. Cf. FREDERICK M. LAWRENCE, PUNISHING HATE: BIAS
CRIMES UNDER AMERICAN LAW 15 (1999). "Particularly in cases of
acquaintance rape and domestic violence, the prior personal relationship be-
tween victim and assailant makes it difficult to prove that gender animus,
and not some other component of the relationship, is the motivation for the
crime." Id.
160. BELL, supra note 16 (manuscript at 148).
161. Lisa Frohmann, Convictability and Discordant Locales: Reproducing
Race, Class, and Gender Ideologies in Prosecutorial Decisionmaking, 31
LAW. & Soc'y REv. 531, 535-43 (1997) (discussing the impact of race and
class on prosecutor's decision to reject rape cases).
163. Id.
to be the reason for the crime if the individuals involved the

incident were acquainted. Lawyers responsible for seeking in-
junctive relief under the civil rights law also discounted bias as
an explanation in cases in which the victim and suspect knew
each other." A previous relationship and sustained contact
over time can afford myriad opportunities for one to develop
reasons, aside from issues of bias, to attack the victim. Cases
between those who knew each other could have multiple mo-
tives, any of which could be the reason for the attack. One
lawyer explained why cases between friends and neighbors did
not make good cases for injunctive relief and why she dis-
counted the use of slurs and epithets in such cases:
Often you have cases with dual motives. Maybe they used
slurs, but they knew each other. They were neighbors and
the incident could have been because the dog was barking.
Even though a racial slur was used, we may have cut them
[the perpetrator] some slack. We all have biases and we
have different ways of negotiating the fact that [different]
people are in our community.' 65
In a similar vein, a different Assistant Attorney General re-
plied, in response to a question about the additional evidence
she wants when she is not sure about a case:
I want to find more evidence of bias, more evidence in gen-
eral. They should ask, is there a history between these two
individuals? If they've never encountered each other
before that suggests two things, first that it is bias-moti-
1 66
vated and second, that it's likely to be repeated.
Most of the cases the unit investigated involved attacks com-
mitted by perpetrators unknown to the victims, something that
made finding the person who committed the crime more chal-
lenging. It makes intuitive sense that strangers, who are un-
likely to know the victim personally, are less likely to have
reason other than bias-anger or revenge, for instance-to
serve as the motivation for the attack. Perhaps the police and
those prosecuting bias crimes favored cases with strangers as
perpetrators rather than neighbors or friends because bias
164. Id.
crimes committed by stranger-perpetrators make for simpler

and more believable stories.
A related worry is that detectives will uncritically accept the
victim's view of what happened and identify cases as hate
crimes that are really only hate speech. This is of particular
concern when police are given open-ended criteria and not
told exactly what weight to ascribe to a victim's story.
ABTF detectives were especially careful to weigh the vic-
tim's perception of whether a hate crime had occurred. Distin-
guishing between hate speech and hate crimes, detectives
insisted that although words of hate may hurt or inflame, they
were not in and of themselves criminal. Detectives in the unit
regularly acknowledged that a line exists between hate speech
and hate crime. Their conversations suggest that hate speech
was wholly legal, while hate crime, which involves criminal ac-
tion, was what the law criminalized. This conversation took
place in the office, while one detective was looking at an inci-
dent report and talking with another.
Detective 1: A White teacher, the victim, has asked a
Black student to leave the room. Evidently,
the perpetrator, the student, said to the vic-
tim teacher, "What are you looking at you
fucking honkey?" [Reading directly from
the crime report] "The victim thinks his con-
stitutional rights are violated." [Looking up
from the sheet] Names is not a crime.
Detective 2: No. 67
Detective 1: I'll screen this one out.'
Another detective described how he weighed victims' stories
with hate speech.
Hate crimes are a challenge. Take an offensive term. The
victim hears the term and also the offensive history. You
have to remain objective. Take the swastika. That has
meaning to people. The "n-word," too. Sometimes168
words
alone don't rise to the level of a hate crime.
The detective continued, giving an example:

168. Id.
A gay man is walking down the street. He hears the words,

"Hey, faggot." Those are just words. Or hears, "Hey,
White honkey." We have to look to see if he feels intimi-
dated. It's not a crime to just use words. It's words alone in
that context in a manner that may make it a hate crime.
Did they threaten? Did they have intent? Someone can
yell, "Faggot!," but to have intent, you need action. 169
F. Questioning the Suspect about Motivation

As mentioned earlier, critics worry that enforcers will in-
quire into a defendant's beliefs and protected expression-the
defendant's thoughts and associations-as they investigate
hate crimes.17° The vast majority of the detectives' question-
ing of suspects occurred during police interrogations. The in-
terrogations of suspects in Center City reveal that detectives
were not concerned with the perpetrator's abstract beliefs, but
rather, like other criminal investigations, focused on marshal-
ling evidence of who committed the crime. Unlike other
crimes, however, even after the perpetrator had confessed, the
detectives often spent a large amount of time clarifying the
perpetrator's motivation. In this regard, the detectives used
the interrogation to gather facts regarding the context of the
crime. Suspects were frequently questioned about particular
situational aspects of the crime such as what the suspect and
the victim had been doing before the crime occurred and the
prior relationship between the victim and the suspect. A prior
altercation in which the victim had been the aggressor sug-
gested that the second incident may not have been a hate
crime, but rather connected to the earlier incident.
In the interrogation below, the detective is trying to find out
why a Puerto Rican man was maced on public transportation
by two young White men:
169. Id.
170. Lisa M. Stozek, Wisconsin v. Mitchell: The End of Hate Crimes or Just
the End of the First Amendment?, 14 N. ILL. U. L. REV. 861, 887 (1994)
(concluding that hate crimes statutes impinge on the First Amendment "by
punishing motive, thought and speech. Even though bigotry and racism are
deplorable to most people, it is a strongly ingrained principle that the gov-
ernment may not regulate expression because of its message, ideas, subject
matter or content").
Detective: I think ... he was sprayed because he was a

Puerto Rican, right?
Suspect: Because he bothered my friend.
Detective: You don't even know for sure whether he
was the one who bothered your friend. So
there were two reasons, he was Puerto Rican
and he bothered your friend?
Suspect: MMM.
Detective: Is that a yes?
Suspect: Yes.
Detective: And he was a Puerto Rican and he was in
[names the White neighborhood in which the
crime occurred], is that a yes?
Suspect: Yes.
Detective: And neither Puerto Ricans or Blacks should
be in [the White neighborhood] at night, is
that a golden rule? If he was Black and he
was walking down that street and that girl
yelled, "Hey nigger," he would have got the
same treatment as the Puerto Rican?
Suspect: So wouldn't have a White walking through [a
Black neighborhood]?
Detective: I'm not saying, but he would have got the
same treatment, right?
Suspect: I don't know.
Detective: And you went over and you sprayed him like
you said for two reasons. He was a Puerto
Rican in [the neighborhood in which the
attack occurred] and he beat up your friend?
Suspect: He was1 7a Puerto Rican and he beat up my
friend. 1
Before the interrogation, the detective had several reasons
to believe that the crime was bias-motivated. The crime oc-
curred in a White neighborhood in which a large percentage of
the city's hate crimes had occurred. Many of the White re-
sidents in that particular neighborhood showed open dislike
for minorities who were moving to the neighborhood. In other
hate crime cases, White perpetrators preceded attacks with
language indicating that they were attacking the victim be-
cause he or she did not belong in the neighborhood. In this
case, the victim said that prior to the attack, the suspect said,

"Hey, spic, you shouldn't be around here." The detective tried

to get the suspect to admit that the defendant was attacked
because of his race. Eventually, the defendants pled guilty to
71 2
hate crime charges.'
1. The First Amendment

ABTF detectives were neither lawyers nor legal scholars.
They received little or no training in what the First Amend-
ment demands. Few detectives in the unit had even gone to
college. What knowledge they had of the First Amendment
came mainly from high school civics or popular culture. De-
spite a lack of formal training in jurisprudence, many of the
detectives' responses to questions about the First Amendment
implications of their job were rather sophisticated. Like criti-
cal race theorists who argue for protections against hate
speech,173 detectives recognized the pain of racial words to
hate crime victims. At the same time, detectives seemed to
clearly understand that words-taunts, threats, and epithets-
were protected. 174 One detective insisted: "Racial words are
very violent. Racial words may be hate incidents, but words
aren't a crime. He called her a nigger? It's not a crime to say
that-the First Amendment right may be violated."' 7 5
Even when pressured, ABTF detectives resisted seeking
civil rights charges in cases that reached the outer limits of ac-
ceptability under the Supreme Court's standard in Mitchell-
cases in which there was only speech and no other evidence
that the crime was motivated by bias. In one such case, a
group of heterosexual men went to a gay bar and began mak-
ing anti-gay jokes and remarks. According to one witness, af-
ter the group of men was told that it had no right to be in a gay
bar, the men hurled a beer at the bar, and a fight ensued. Gay
and lesbian organizations were quite vocal in the case, and
pressured the unit to seek civil rights charges against two of
172. Id.
173. See Dana Moon Dorsett, Hate Speech Debate and Free Expression, 5
S. CAL. INTERDIS. L.J. 259, 262-73. (1997).
174. See Toni M. Massaro, Equality and Freedom of Expression: The Hate
Speech Dilemma, 32 WM. & MARY L. REV. 211, 222-30 (1991).
the straight men. The unit refused and sought criminal charges
instead. As the detective on the case noted in his report, the
case did not merit charges, in part for First Amendment
reasons:
[M]y evaluation of the evidence to this point reveals neither
of these defendants was in violation of the civil rights stat-
utes. While both admit that they were telling anti-gay jokes
and making inflammatory comments, they state those com-
ments and jokes were directed to each other. This behavior
is verified by [two other defendants], as well as other wit-
nesses. While this behavior may be inflammatory in nature,
it is within
176
the First Amendment right to speak in this
manner.
Detectives did not view their actions as depriving defend-
ants of their rights to free speech. Consistently, the response
to the question about the difference between their actions and
behavior that infringed on a defendant's free speech rights was
that a hate crime involved violence and action. When asked
whether perpetrators were really being punished just for say-
ing something, one detective responded: "That's not really the
case. We normally had them for something else, not just for
saying something. The perp said something, then beat some-
177
one up with their fists."'
Another detective evinced an appreciation of the difference
between hate crime and hate speech. When asked about the
free speech implications of hate crime enforcement, he re-
sponded, "People can call you a name, as long as there's no
overt act, you're on firm constitutional ground. It's a very fine
line."' 78 One detective, who manifested deep dislike for hate
speech was clear about the protection that the Constitution
gives it:
If you call someone a nigger ... I don't think that language
should be used. But if it's used in a context where the
words aren't directed at anybody .... [Hesitating]. It's not
OK to use it at all. You can never call anybody a nigger.
You can't use it when directed at someone or in a park in a
crowd. Both are a problem. You say that, you might be
176. Id.
177. Id.
looking for trouble. You might intimidate people, a little

kid. I don't think it's OK but the Constitution allows it. 179
Critics' fears have not been realized in Center City. Their
assumption that enforcers cannot accurately identify perpetra-
tors' motivations, the worry that enforcers will not carefully
search for what motivated the crime, and the worry that in-
quiries into motivation will be too intrusive, have not come to
pass in Center City. ABTF detectives were surprisingly con-
servative in their use of hate crime law. In Center City, detec-
tives adopted a complex series of routines that helped them
identify bias motivation. The process involved an initial
screening, followed by a series of filtering mechanisms that re-
quired detectives to remove whole categories of cases likely
motivated by a variety of other emotions-anger, resentment
and jealousy-before conducting a detailed examination of the
perpetrator's motivation.18 1 Rather than focusing on the de-
fendant's abstract beliefs and association, the detectives' in-
quiry was generally restricted to contextual clues regarding the
crimes.
Critics also worry that those with benign motives who use
slurs or epithets during some type of crime will be punished
under hate crime legislation. Both the screening processes and
the detectives' own reluctance to take cases which lacked evi-
dence of bias motivation aside from language helped to safe-
guard against the punishment of those with benign motives.
Not every case in which detectives found the perpetrator to
have been motivated by bias resulted in hate crime charges.
Detectives preferred cases with injured victims and disliked
cases with very young perpetrators. 8 ' While detectives' deci-
sions not to enforce the law against very young perpetrators
raises the specter of under-enforcement of hate crime law, the
failure to enforce the law in this context suggests that detec-
tives may have eliminated cases that were problematic from a
First Amendment perspective.

180. See generally BELL, supra note 16.
181. See id. (for more on the cases in which detectives chose not to invoke
the law).
PART IV. CONCLUSION: THE HATE CRIME HATE

SPEECH DISCONNECT
This Article maintains that critics are incorrect when they
insist that enforcers are unable to separate instances of pure
hate speech from hate crime and that they take language alone
as evidence of motivation. In contrast to what critics of hate
crime legislation assume, the detectives in Center City did not
use language as the sole indication of whether perpetrators
committed a hate crime. Because many cases that were clearly
not hate crimes were referred to the unit in which the perpe-
trators used slurs or epithets, ABTF detectives developed pro-
cedures focused on the context in which language was used to
discern motivation. Their use of the law was judicious and as a
result, the detectives did not consider every case with bias-mo-
tivation appropriate for charges.
It is not my intention to argue that that the police officers
enforcing bias crime legislation in every city behave as they do
82
in Center City. Indeed there is evidence to the contrary.
However, the Article suggests that with the proper proce-
dures, enforcers of hate crime laws can provide the protection
for hate speech that the First Amendment demands. Protect-
ing perpetrators' First Amendment rights involves a searching
examination into the context of the crime, detailed investiga-
tion, and as a consequence, an extraordinary commitment of
resources by the police department to the investigation of
these incidents. It may be possible to explain the difference in
outcomes, and as a result, First Amendment protection, by
looking to the resources that a department commits to the in-
vestigation of a hate crime. 83 Whether such a commitment of
resources is appropriate for what is arguably a tiny percentage
of crime is a policy question that is beyond the scope of this
Article. Nevertheless, the experience of Center City suggests
182. See, e.g., Boyd, supra note 51.

183. For instance, the police department studied by Boyd, discussed in
Part II was not a hate crime unit, but rather consisted of individual detec-
tives placed in each police precinct around the city. This arrangement, while
more economical, does not allow detectives sufficient frequency in dealing
with hate crimes to develop procedures protective of First Amendment
rights.
that hate crime legislation can be enforced without violating

the First Amendment, and supporters' arguments regarding
the value of this legislation should not be ignored on First
Amendment grounds.
This research from Center City raises broader issues that
may apply in other jurisdictions in which police enforce hate
crime law. In preparing cases for hate crime prosecution,
detectives may be given an enormous amount of discretion to
decide the circumstances in which the law will be invoked.
Giving detectives broad discretion to decide when to enforce
hate crime law means that judges and lawyers are not the only
actors in the criminal justice system with powers of definitive
interpretation of the First Amendment." 8 Police officers' in-
terpretations in this area matter, not only in the critical role
they play in screening the disputes that come to court, but also
in their ability to decide when hate is a crime.1 8 5
Detectives' conservative use of the law and the elaborate
system they created for identifying bias indicates that critics'
predictions that protected speech will be punished, or that
people whose actual motive is not biased will face hate crime
charges, have not come to fruition in Center City. Evidence
from Center City and research in other jurisdictions suggests
that this may be true in part because the types of cases the
critics imagine-cases involving pure hate speech, conversa-
tions, remarks, racist jokes-are rarely reported to the police;
and when they do get reported, are quickly discarded.' 8 6 The
actual hard cases from a First Amendment perspective are
cases in which slurs or epithets are used during the commission
of a crime. The rigorous system of inquiry into motivation that
184. Cf R. Alex Morgan, Jury Nullification Should Be Made a Routine

Part of the Criminal Justice System, But It Won't Be, 29 ARIZ. ST. L.J. 1127,
1140 (1997) (stating that "the other participants in the criminal judicial sys-
tem are granted a significant amount of discretion. Police use discretion in
deciding whether to make an arrest; prosecutors exercise discretion in decid-
ing whether to charge a defendant and with what crime") (footnotes
omitted)).
185. See id.
186. See, e.g., Donald Green, et al., Defended Neighborhoods,Integration,
and Racially Motivated Crime, 104 AM. J. OF Soc. 372, 383 (1998).
detectives practice makes it highly unlikely that cases of pro-

tected speech will survive until the charging process.
Casting hate crime as an issue connected to hate speech is a
mischaracterization that ignores the empirical basis of many of
the incidents investigated by the police. The cases that the
ABTF investigated suggest that hate crimes arise as White re-
sidents try to protect "their" neighborhoods from outsiders. 18 7
This is clear from the language used in these crimes. "Go back
to where you belong," "Go back to China," "No niggers in
'Hillsdale"' are common taunts that accompany the assaults
and other harassment in many of the ABTF's cases. The vast
majority of the unit's cases did not involve mere name-calling,
or even garden-variety bigots airing their views. Hate crimes
were not ordinary muggings with slurs attached. The hundreds
of cases investigated by the ABTF were the stories of perpe-
trators whose intention was not to express views but, rather, to
drive people out of their neighborhood or off the streets be-
cause the perpetrator did not like their victim's race, religion,
or sexual orientation. In Center City, the detectives and de-
fendants knew that hate crimes are not about hate speech. En-
forcers of the hate crime law rarely saw their jobs as
implicating the First Amendment, and defendants almost
never asserted their First Amendment right to use slurs or epi-
thets. Thus, enforcers and perpetrators realized that although
defendants' criminal actions were not protected, defendants
retained their right to hate.
A. New Justificationsfor Hate Crime Legislation

At both the national level and in states without bias-moti-
vated violence and intimidation statutes, activists recently
have demanded hate crime legislation as the appropriate re-
sponse to well-publicized hate murders, such as that of James
Byrd and Matthew Shepard.18 8 In calling for hate crime legis-
lation, supporters see three primary goals served by this legis-

188. See, e.g., Roxanne Roberts, Voices of Reason: At the HRC Dinner,
Coming Out Against Hate, WASH. POST, Oct. 11, 1999, at C1 (describing
activism by the parents of James Byrd and Matthew Shepard).
lation. The first is that such legislation will deter perpetrators

of hate crimes.' 89 They also believe that hate crime legislation
will serve as a tool for law enforcement in fighting this type of
violence. 19 0 Finally, they insist that it will provide punishment
appropriate to the crime.' 9'
As many critics of the legislation are quick to note, such ar-
guments are weak, particularly when supporters hold out hate
murders as evidence that hate crime legislation is needed. 192
As a class of crime, homicides are usually quite aggressively
investigated by specialized detective units. Though there are
no figures for how aggressively hate murders are prosecuted,
vis d vis other murders, if the intense public scrutiny focused
on the Shepard, Byrd, and Ileto killings occurs in other cases,
prosecutors will be unable to push hate murders under the rug.
Finally, with respect to adequately punishing hate crimes, per-
petrators of graphic bias-motivated murders are likely to be
eligible for the death penalty, provided this remedy is availa-
ble under state law. If a hate crime is punishable by death, a
more serious penalty is scarcely needed.
Though hate murders have served as a clarion call for activ-
ists, a far better justification for passing hate crime legislation
is that it is needed in order to deal with the vast majority of
hate crime-low-level criminal assaults, intimidation, and
property damage. 193 Most hate crimes are not homicides. Ac-
cording to the FBI's Hate Crime Report, law enforcement
agencies identified only sixteen hate murders out of 8,063 of-
fenses in 2000.19 Most of the crimes identified as hate crimes
189. Dan M. Kahan, The Secret Ambition of Deterrence, 113 HARV. L.

REv. 413, 465 (1999).
190. Id.
191. Id. at 467-68.
192. Id. at 472 ("I don't think an enhancement statute provides a deter-
rent effect ... [but] ... it sends a message about how the people of the state
feel.") (quoting Nevada's hate crime statute sponsor).
193. See FBI, U.S. DEP'T OF JUSTICE, HATE CRIME STATISTICS 2000 8
(2000), available at http//www.fbi.gov/ucr/cius 00/hate.pdf (discussing that in
2000, the latest year for which figures are available, the FBI Hate Crime
Statistics reported 8,063 incidents nationwide, only 16 of which were
murders).
194. Id. at 59
were low-level crimes-simple assault, harassment, threats, 195

and vandalism-crimes normally given the lowest priority.
In stark contrast to hate murders, low-level hate crimes are
largely invisible. Moreover, if the state makes no particular
effort to designate low-level bias crimes as eligible for special
treatment, the police may not take them seriously. 96 That po-
lice do not take low-level crime seriously is not new; studies of
the police suggest that low-level crimes get little or no investi-
gation. 97 The decreased priority given to low-level bias-moti-
vated assaults might be acceptable were it not for the fact that
studies suggest that victims of bias-motivated crimes suffer
more severe psychological effects than victims of similar non-
bias-motivated crimes. 198 In addition, unlike non-bias-moti-
vated violence, as a general matter, bias crime tends to be re-
petitive, cumulative, and frequently interfere with other hate
crime victims' rights, particularly their rights under Fair Hous-
ing laws to live in the neighborhood of their choice.' 99 The im-
portance of such rights and the damage caused by bias-
motivated violence provides a compelling justification for hate
crime legislation.
195. Id. at 60.

196. See Boyd, supra note 51, at 821
Issues of 'linguistic ambiguity' are anything but theoretical for po-
lice personnel; on the contrary, these issues are of immediate, prac-
tical concern. Decisions, interpretations, and categorization must
be-and are-made as a matter of course in the routine work of
police officers. Theoretical problems aside then, the question re-
mains: How do police personnel recognize, identify, and categorize
certain crimes as hate motivated?) (footnotes omitted).
Id.
197. NAT'L INST. OF LAW ENFORCEMENT AND CRIM. JUSTICE LAW EN-
FORCEMENT ASSISTANCE ADMIN., U. S. DEP'T OF JUSTICE, PART IV THE
GRIM. INVESTIGATION PROCESS: A SUMMARY REPORT THE RAND PAPER
SERIES in THE GRIM. INVESTIGATION PROCESS: A DIALOGUE ON RESEARCH
FINDINGS,5-20 (1977); RICHARD V. ERICSON, MAKING CRIME: A STUDY OF
DETECTIVE WORK 81 (1981) (reporting that detectives devote very little in-
vestigative time to cases).
198. See JACK McDEVITT ET AL., Consequencesfor Victims: A Compari-
son of Bias- and Non-Bias Motivated Assaults, 45 Am. Behav. Scientist 697,
708-10 (2001).
199. See Green, supra note 186, at 397.

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Articles by Maurer Faculty Faculty Scholarship

Deciding When Hate Is a Crime: The First Amendment, Police

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* Associate Professor of Law, Indiana University (Bloomington).

7. See id. at 271.

whom are unschooled in the vagaries of First Amendment

16. See Jeannine Bell, POLICING HATRED: LAW ENFORCEMENT, CIVIL

PART I: THE POLICE ROLE IN HATE CRIMES LAW

A. Hate Crimes Law

The best way to distinguish hate crimes is to highlight how

Amendment protects hate speech in these contexts and thus,

Though state hate crime statutes take slightly different ap-

orientation-depending on the categories listed under the ju-

B. The Centrality of the Police Role

40. FBI, U.S. DEP'T OF JUSTICE, supra note 19, at 59.

to receive further investigation. If police decide that the case

46. See id. at 171.

forms.5 1 Frequently, bias-motivated incidents reported to po-

C. Murky Constitutional Waters

convicted under the St. Paul Bias Motivated Crime Ordinance,

56. Id. at 380. The ordinance provided:

tion of the message in bias-motivated speech was insufficient

ally selects a victim on the basis of race violates an individual's

D. The First Amendment Standardfor Hate Speech

74. Id. at 481.

the Court explicitly declined to overrule two of its earlier cases

83. Id. at 585-87.

discriminatory conduct and not just speech that is being

PART II. PRACTICAL CONCERNS

truly influencing their behavior."9 4 In critics' eyes, the slippery

punishment under hate crime law in instances when there is

102. Gellman, supra note 95, at 364-65.

As the frequent use of the example of the police officer in

another hate group, it might be difficult to determine his mo-

B. Empirical Evidence and Further Concerns

fuck."'" 7 Even those who thought that hate crimes were a

have little evidence from which to draw conclusions regarding

Amendment critics of hate crime legislation and others con-

PART III. ARE THE CRITICS RIGHT? -THE

A. The Anti-Bias Task Force

131. See supra p. 46.

B. Determining Bias: Detectives' systematic search for

request, the Reports Bureau forwarded all reports that had

C. Basic Requirements for Hate Crimes

142. Id. (manuscript at 141).

143. Id. (manuscript at 142).

crimes because he hated gays.' 45 In 1991, a similar case oc-

2. Looking to the Crime's Context

a. "The Typical Non-Hate Crime"

148. Id. (manuscript at 144).

Since every incident involving traffic, or drugs, or neighbors,

b. Weeding out False Reports

In trying to discern whether an incident was a typical non-

the note when she believed herself unobserved signaled to the

151. Id. (manuscript at 145).

D. Policing crime, not speech

153. Id. (manuscript at 146).

E. Relationship and Bias

bias can be seen in the detectives' evaluation of the relation-

to be the reason for the crime if the individuals involved the