Does hate crime law apply to MAX stabbing? Federal prosecutors still deciding - OregonLive.com

Gov. Kate Brown didn't hesitate when she stepped to the microphone last weekend and called the deadly violence on Portland's public transit a "crime of hate.''

U.S. Attorney Billy J. Williams quickly reassured people that hate crime prosecutions remain a priority under the new administration's Attorney General Jeff Sessions. "There's a day of reckoning coming,'' Williams said.

Bias offenses

People reported 5,818 bias offenses nationwide in 2015, according to the FBI.

The federal law is intended to criminalize bias-motivated conduct and not just hateful thoughts or speech. Until someone commits an actual crime or makes a specific threat, a person's speech, as reprehensible as it may be, is protected by the U.S. Constitution, legal experts say.

"As heinous as they may me, the statements alone are protected by the First Amendment,'' said former federal prosecutor Benjamin B. Wagner of California. "Where it crosses the line is when it becomes a specific threat to individuals.''

More than half of the reported offenses were motivated by race or ethnicity, the FBI said. Of those, nearly 53 percent involved anti-black bias.

About a fourth of the total involved religious-based bias. Of those, 51 percent were anti-Jewish offenses and 22 percent were anti-Muslim.

Yet whether the May 26 triple stabbing aboard a MAX train in Northeast Portland constitutes a hate crime, as defined by federal law, is a stickier question that prosecutors continue to mull. The law may not apply in this case.

The dilemma comes because Jeremy Joseph Christian, 35, directed his racial diatribe at two teen-age girls, one African American and one Arab American who was wearing a hijab, witnesses and police said. Not at the men who stood up to Christian, a known extremist who threatened to kill or stab people in Facebook postings online and apparently on a train the previous day.

The law says a hate crime occurs when someone willfully causes injury to another person using a dangerous weapon "because of the actual or perceived race, color, religion or national origin of any person.'' If a death results, a conviction could bring a life sentence.

"The language of the statute is very clear. It contains the words 'because of,' so the murder has to be because of the victim's protected characteristics,'' said Kent S. Robinson, a retired federal prosecutor who served for six years as chief of the criminal division in the Oregon's U.S. Attorney's Office.

On the Green Line train in Northeast Portland, the men stepped in to protect the girls. Two of the them died and one suffered grave injuries when Christian stabbed all of them in the neck with a folding knife he had concealed in his hand, police and prosecutors said.

"The fact that Christian was ranting at two girls because of their perceived religion may not make the stabbing of the good Samaritans hate crimes,'' Robinson said. "I am just not sure the feds have a tool to use that is any more effective than a state murder prosecution.''

Jack Levin, co-director of the Brudnick Center on Violence and Conflict at Northeastern University, also said he doubts the law would encompass the rescuers.

"I don't think anybody thought of that when they developed the law,'' Levin said.

The Matthew Shepard and James Byrd Jr. Hate Crimes Prevention Act in 2009 expanded the 1969 law to include crimes motivated by a victim's actual or perceived gender, sexual orientation, gender identity or disability. It also removed the prerequisite that a victim had to be engaged in a federally protected activity, such as voting or attending school.

Benjamin B. Wagner, the retired U.S. attorney for the Eastern District of California now in private practice, said appeals cases stemming from the 2009 law don't provide obvious guidance on who it covers.

"If you have racial animus towards person A, but you use force against person B, does that fit the criteria? This certainly would be a question raised and it would be litigated,'' Wagner said.

But he believes the law could apply to the Portland case. Its language refers to causing injury because of bias directed at "any person" – not necessarily the victim, he said.

"This would not be a deal breaker for federal prosecution. It seems to me the facts are reasonably good,'' Wagner said. "This whole brawl was initiated because of his hatred of these two women. His motive seems pretty clear. The reason he acted against these other people was connected to his hatred of these two other women. He's unapologetic. He's shouting out in court.''

The state has charged Christian with two counts of aggravated murder, one count of attempted murder, one count of first-degree assault, three counts of unlawful use of a weapon and two counts of second-degree intimidation. His case will be presented to a grand jury for review before his next court appearance this week in Multnomah County Circuit Court.

The intimidation charge, a misdemeanor, is the state's hate crime offense. It accuses Christian of frightening the girls by threatening to harm them based on his perception of their race or religion.

The aggravated murder conviction could bring a life sentence of life or the death penalty, though the governor has continued a moratorium on the death.

Pursuing a hate crime prosecution in federal court then wouldn't make much of a difference in the penalty Christian would face if convicted.

The federal law is more often used to provide a penalty beyond what state law would offer for certain crimes, such as an assault motivated by racism.

"It may not make sense for the feds to pile on and make a new case if the state prosecutor already is going to get a good result,'' Wagner said.

***

Federal prosecutors in Oregon must get approval from civil rights attorneys at the U.S. Department of Justice in Washington, D.C., before charging Christian with a hate crime.

The requirement ensures such prosecutions are handled consistently nationwide.

As a result, the federal decision may take some time. The U.S. Attorney's Office also could wait to see how the state case plays out before filing a charge.

Beyond the legal issues, a hate crime prosecution makes a statement.

"It sends a message to would-be perpetrators that we will not tolerate this type of violence, and it sends an important message to victims that we are on your side,'' Levin said.

A manual for U.S. attorneys, however, cautions them not to be swayed by public opinion or political pressures. No attorney may make prosecution decisions based solely on a person's "affiliation with any group advocating for or against rights of persons with the characteristic identified by statute,'' it says.

Seemab Hussaini, a local member of the Council of American-Islamic Relations, told Oregon's top federal prosecutor last weekend that some in the Muslim community were concerned that Christian would face only state murder charges. It's important to stand against intolerance with a federal hate crime charge, he said.

"I don't walk in the political lane,'' Williams responded. Any decision, he said, would be based on the facts of the case.

***

The last hate crime prosecuted in federal court in Oregon was the case against David "Joey" Pedersen and Holly Ann Grigsby on their three-state killing spree in 2011 that left four people dead in what the couple called their white supremacist "revolution."

Pedersen was sentenced in federal court in 2014 to two life terms without the possibility of release for the carjacking murders of Cody Faye Myers, 19, near Newport, and Reginald Alan Clark, 53, in Eureka, Calif.

Those were in addition to two life sentences he received in Washington state court for the murders of his father, David "Red" Pedersen, and stepmother, Leslie "DeeDee" Pedersen.

Pedersen and Grigsby killed, stole cars and used their victims' credit cards to finance their plan to target Jewish organizations. Grigsby was sentenced to life in prison on a single racketeering charge that encompassed the killing and other crimes.

Earlier in 2014, a federal jury deadlocked on whether a man willfully assaulted a gay man who was walking his pink poodle in Washington County because of the man's sexual orientation. The hate crime charge was dismissed after the defendant, George Allen Mason Jr., pleaded guilty in state court to second-degree assault. He was sentenced to three years in prison for the March 2013 assault on David Beltier in Hillsboro.

In 2003, a man who organized a gang of teenage skinheads to burn crosses at a Portland park and spray-paint racist graffiti at a Korean church and a Jewish cemetery in late 2002 and early 2001 pleaded guilty to a federal hate crime -- conspiracy to deny civil rights through intimidation.

In October 1990, a federal jury found the leaders of a major white supremacist group liable for intentionally inciting the 1988 beating death of an Ethiopian man, Mulugeta Seraw, 27, at the corner of Pine Street and Southeast 31^st Avenue. The jury assessed $12.5 million in damages against the leaders, their organization and two of the skinheads involved in the beating. Seraw, a graduate student returning home after a night out with friends, was bludgeoned to death with a baseball bat.

In state court, two of the skinheads were convicted of manslaughter and assault, while the bat-wielding skinhead got a life sentence for murder and died in prison in 2011.

***

Hate crimes are underreported and few are brought to court. That's because prosecutors must prove what motivated the defendant.

"You have to get into the head of a perpetrator. You have to know his intention,'' Levin said.

Racial or bigoted remarks, a membership in an organized group that condones such behavior or a defendant's admission can serve as evidence to bolster the allegation.

But here, Levin said, the case poses a different problem.

"You have a murder being committed against rescuers,'' he said. Rick Best, 53, and Taliesin Myrddin Namkai-Meche, 23, died when they were stabbed in the neck. Micah Fletcher, 21, also was stabbed in the neck, but survived when the knife missed vital organs by millimeters.

Portland police will present the case to a Multnomah County grand jury to return an indictment by Christian's next court appearance Wednesday. Additional state charges may be added at that time.

Local police, with help from the FBI, likely obtained warrants to search Christian's computer, cellphone and Facebook and other social media accounts. They'll review all the evidence in the case, including Christian's statements, eyewitness accounts, videos of the violence and his online comments.

Federal prosecutors will do the same to see if the evidence supports a motive of hate and a subsequent charge.

If no federal prosecution results, Christian's diatribe on the train before the stabbing could serve as aggravating factors for jurors or a judge to consider during the sentencing phase in state court if he's convicted of murder.

 -- Maxine Bernstein

mbernstein@oregonian.com
503-221-8212
@maxoregonian

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