Hate crimes

Federal Appeals Court Overturns Hate Crime Convictions of Amish Beard Cutters

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wahl.com

Today a federal appeals court overturned the hate-crime convictions of 16 people who were charged in connection with a series of hair-cutting and beard-shaving attacks on Amish men and women in Ohio. Counterintuitively, the perpetrators were also Amish. But federal prosecutors argued that Bishop Samuel Mullet Sr. and his followers were motivated by doctrinal disagreements with their targets and therefore inflicted bodily injury "because of" their victims' religion, a felony under the Matthew Shepard and James Byrd Jr. Hate Crimes Prevention Act of 2009. In today's ruling, the U.S. Court of Appeals for the 6th Circuit does not question that violence arising from an intrareligious dispute can qualify as a hate crime, but it concludes that the jury instructions in this case defined the motive element of the offense too loosely:

The district court instructed the jury that the motive element could be satisfied by showing that "a person's actual or perceived religion was a significant motivating factor for a [d]efendant's action" "even if he or she had other reasons for doing what he or she did as well." In taking issue with this instruction, the defendants argue that the phrase "because of" requires but-for causation—a showing that they would not have acted but for the victim's actual or perceived religious beliefs. The defendants have the better of the argument.

In reaching that conclusion, the 6th Circuit relies on common usage, its own decisions, and Supreme Court precedents, including a 2014 case involving a heroin dealer's culpability for a customer's death. It adds that a looser definition would be constitutionally problematic (citations omitted):

Any standard that requires less than but-for causality…treads uncomfortably close to the line separating constitutional regulation of conduct and unconstitutional regulation of beliefs. The government may punish "bias-inspired conduct" without offending the First Amendment because bigoted conduct "inflict[s] greater individual and societal harm." But punishment of a defendant's "abstract beliefs," no matter how "morally reprehensible" they may be, violates the First Amendment. Requiring a causal connection between a defendant's biased attitudes and his impermissible actions ensures that the criminal law targets conduct, not bigoted beliefs that have little connection to the crime.

To my mind, even the relatively narrow reading of the statute endorsed by the 6th Circuit "treads uncomfortably close to the line separating constitutional regulation of conduct and unconstitutional regulation of beliefs." The bottom line is that Mullet and his followers would not have been charged with these crimes but for their religious beliefs. They could have been (and in fact were) prosecuted in state court for assault, but the hate crime charges hinge on the doctrinal differences that supposedly motivated them. If  they are retried, they can win acquittal by arguing that they were mainly motivated by family disputes or interpersonal friction, as opposed to religious beliefs. But they cannot win acquittal by arguing that their religious beliefs should not matter.

The appeals court mentions another constitutional issue it does not address (since the defective jury instructions were enough to invalidate the convictions): "whether the federal hate-crime statute exceeds Congress's Commerce Clause powers as applied to the facts of this case." That is a reference to U.S. Attorney Steven M. Dettelbach's argument for making a federal case out of these seemingly local crimes. Among other things, that argument hinged on the provenance of the electric hair trimmers, horse shears, and disposable camera used by the defendants. Since these instruments of crime originated outside of Ohio, Dettelbach reasoned, the offenses implicated interstate commerce. In case that was not enough, he also mentioned the defendants' use of a highway and the U.S. Postal Service.

If arguments as frivolous as these can establish an "interstate nexus," the Justice Department has the power to transform any act of violence into a federal hate crime by arguing that the perpetrator is a bigot or even, as in this case, that he disagreed with his victim about religious matters. With that power comes the ability to punish people more severely than state law allows, to impose extra punishment on people already convicted and sentenced under state law, and even to retry people who are acquitted in state court. And that power is to be exercised by federal prosecutors with a strong interest in making statements and advancing their political careers, so you know it will be used with the utmost caution.

[Thanks to John K. Ross for the tip.]

NEXT: Acquitted: Texas Man Accused of Revenge-Killing His Sons' Killer

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  1. Certainly would be thieves, murderers and fraudsters disagree with my interpretation of the 8th, 6th, and 9th Commandments…

  2. “The bottom line is that Mullet and his followers would not have been charged with these crimes but for their religious beliefs.”

    Precisely.

    These men shouldn’t have been convicted or punished for their religious beliefs.

    They should only have been convicted or punished for what they did to their victims.

    1. It’s horrible. It quite literally codifies into law that some animals are more equal than others.

  3. people who were charged in connection with a series of hair-cutting and beard-shaving attacks on Amish men and women in Ohio.

    I think shaving the women’s beards was despicable.

    1. They were asking for it!

  4. Hatecrime law is about as pure an expression of the progressive world-view as there is. I find them so repugnant I can scarcely put it into words. It sickens me to know that America has engaged in thought-policing like this.

    1. Agreed. Apparently you can put anything into law as long as you give it the right name. Hatecrime shares a striking similarity to thoughtcrime except for one key thing. Nobody likes hate, everyone has thoughts. See? Huge difference.

    2. And a hatecrime is only a one way street as well.

      1. Indeed. Prosecutors never seem eager to bring such charges when the perps are black or Muslim and the victims are Jewish or white.

    3. That’s why I’m all for tort as the basis for all criminal law (which has a history in the Germanic tribes pre-common law). It’s also why I’m not fond of laws predicated upon intent.

      David Friedman had also argued for the same, to transform criminal law from Gov vs Defendant to Victim/Plaintiff vs Defendant. But this is a very unpopular view in legal circles.

    4. I had a long, thoughtful post but the squirrels stole it and stored it away for winter.

      So what you said.

  5. …nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb…

    The offense is not the criminal act itself, but whatever various courts want to call it. As long as one court gives a different name to the crime it is OK to put the accused on trial again, until there is a correct outcome.

    1. Progressives will move the goalposts until they win. Then the game is over.

      1. Sort of like how election recounts work: they keep finding “lost” Democratic votes until the Democrat wins.

  6. This comes back to the definition of tolerance that I keep harping about.

    Tolerance being defined as being tolerant of things that are not within a person’s control, such as race, sex, and sexual orientation, while not tolerating intolerance. Intolerance being defined as disagreement with a tolerant person.

    Hate crimes are crimes that are motivated by hatred of things that are out of the victim’s control.

    Whereas crimes that are motivated by things that are within the person’s control, such as political (specifically non-progressive) or religious (specifically Christian) beliefs, are actually expressions of tolerance.

    Hate crimes are a way to lump extra punishment on people who aren’t tolerant progressives.

    1. And Randian (aka Tone Police), if you read this, I’m not taking a shit. Just so you know.

    2. So, once science proves that there is a strong genetic predisposition to racism and/or bigotry, hating hate becomes unacceptably intolerant? Or are we just playing Calvinball again?

      1. It’s Calvinball all the way down.

    3. Why should the fact that religious and political beliefs are voluntary matter?

      What should matter is whether those people are actively harming you or not, not whether or not the other person could change their beliefs.

      For instance, I might think that people who believe in astrology are stupid, but they aren’t harming me by holding those beliefs. Even if I thought that belief in astrology in general was harmful to society, I would find that far to nebulous to justify coercing people to change their minds about it.

      Moreover, isn’t it kind of racist to say that crimes motivated by race are wrong because the minority can’t change they race? Think about it. Doesn’t that imply that the minority should, or would, change their race if they could, but they get an excuse because it’s impossible?

      You know, there’s two ways of looking at it:
      A) It’s okay that you’re gay, because you were born that way and there’s nothing you can do about it.
      B) It’s okay that you’re gay, because you being gay doesn’t hurt me in any way.

      Isn’t it sort of blatantly obvious that A is WAY more bigoted than B?

      And if so, then isn’t it clear that the fact that something is *involuntary* isn’t the critical issue?

      1. Ask them.

  7. The appeals court mentions another constitutional issue it does not address (since the defective jury instructions were enough to invalidate the convictions): “whether the federal hate-crime statute exceeds Congress’s Commerce Clause powers as applied to the facts of this case.” That is a reference to U.S. Attorney Steven M. Dettelbach’s argument for making a federal case out of these seemingly local crimes. Among other things, that argument hinged on the provenance of the electric hair trimmers, horse shears, and disposable camera used by the defendants. Since these instruments of crime originated outside of Ohio, Dettelbach reasoned, the offenses implicated interstate commerce. In case that was not enough, he also mentioned the defendants’ use of a highway and the U.S. Postal Service.

    If arguments as frivolous as these can establish an “interstate nexus,” …

    I am very sure that if that argument were examined, it would easily be upheld. What you refer to is the “Instrumentality” interpretation of the Commerce Clause. Despite appearances, Instrumentality is really a logical extension of simply stating–without any bounds–that the government has the power to regulate interstate commerce. It’s been established precedent and used to establish other cases as precedent for a very long time now.

    1. Marc Victor (criminal defense lawyer, ran for AZ Senate (L)) discusses that here in the beginning section:
      https://www.youtube.com/watch?v=jUow1DhAubA

      1. at around 5:00 mark

    2. That got rolled back somewhat in Lopez in the 1990s, didn’t it?

      1. Not really. Congress passed a new Gun Free School Zones Act that banned any gun that had traveled in interstate commerce (so all of them).

    3. Despite appearances, Instrumentality is really a logical extension of simply stating–without any bounds–that the government has the power to regulate interstate commerce.

      Care to justify that extraordinary claim? How is commerce regulated by the hate crime law?

      1. First, Instrumentality allows the Fed to gain jurisdiction. This precedent goes way back.

        The subjects and articles under consideration use roads. Those roads are then connected to other roads (instruments) that cross state lines.

        The instruments or articles used in targets of regulation themselves have also used instruments of commerce that cross state lines.

        Secondly, people think that “regulate” means like slapping a fine on someone. But the definition is in no way limited to that. What if instead of punishing someone with a fine, you punish them with prison instead?

        1. See the original article on how the Feds became involved in this Amish fued to begin with:
          https://reason.com/blog/2012/09…..nsformed-a

          But hey, look, Dettelbach says: The “Wahl battery-operated hair clippers” used in the assaults “were purchased at Walmart and had travelled in and affected interstate commerce in that they were manufactured in Dover, Delaware.” The defendants also used “a pair of 8” horse mane shears which were manufactured in the State of New York and sent via private, interstate postal carrier to [a retailer] in Ohio for resale.” They took pictures of their victims with “a Fuji disposable camera from Walmart” that “travelled in and affected interstate commerce in that it was manufactured in Greenwood, South Carolina.” They used “an instrumentality of interstate commerce” (i.e., a highway) to reach victims in Trumbull County, Ohio. (They never actually left the state, but they could have.) The indictment also mentions a letter (carried by the U.S. Postal Service!) that was used to lure one of the victims. An embarrassment of interstate nexuses, in more ways than one

          1. There is literally nothing that the Commerce Clause cannot do. Madison wept.

        2. I encourage you to check out Marc Victor’s video above about how instrumentality is used in drug laws and prostitution.

          Also, it’s not just roads. The internet is also an instrument of interstate commerce. See my long thread with quotes and links as to how the Hemingway Muesuem came under Federal government wildlife control over its house cats:
          https://reason.com/blog/2012/12…..nt_3431168

          The District Court found that the Hemingway cats are “distributed” when the museum uses their images online and in promotional materials, but the 11th Circuit found that “distribution” did not just refer to advertising.

          “The museum ‘distributes’ the cats in a manner affecting commerce every time it exhibits them to the public for compensation,” Dubina wrote.

          “The museum argues that its activities are of a purely local nature because the Hemingway cats spend their entire lives at the museum – the cats are never purchased, never sold, and never travel beyond 907 Whitehead Street,” he added. “But the local character of an activity does not necessarily exempt it from federal regulation. And it is well-settled that, when local businesses solicit out-of-state tourists, they engage in activity affecting interstate commerce.”

        3. Federal laws over obscenity, which again does not necessarily need to be distributed across state lines so long as there is some connection via instrumentality, is also predicted on the Commerce Cause.

          And though not enforced, we still have what seems like a relic from the Alien and Sedition Act where technically, seditious speech is still criminalized via the Commerce Clause.

        4. Yes, I know the courts have set up epicycles upon epicycles and go through all sorts of mental gymnastics to evade the plain meaning of the text, but that’s not what you said. You said it is a logical extension of the commerce clause, which to my mind is indefensible.

          I know what “regulate” means, it means “make rules for/about”. No argument there. What I question is how it’s “commerce among the several states” that’s being regulated here. Do the feds think that punishing these guys will affect interstate commerce in razors and disposable cameras? Or even more pointedly, did Congress intend this law to regulate razor and camera commerce? If not, how can it be plausibly claimed that this law is, or is intended as, regulation of interstate commerce?

          1. In the end, it doesn’t really matter what the intention is, just that they can derive a justification from those words in Article 1, Sec 8.

            If they can regulate interestate commerce, then they can regulate the instruments of interstate commerce.

            If they can regulate the instruments of interstate commerce, then they can regulate any usage of those instruments.

            If they regulate usage of those instruments, then they can criminalize certain usages.

            1. Constitutionally it does matter. The rules have to be about interstate commerce when they’re made… they can’t just make a bunch of rules about other stuff and then leave it for the prosecutor to figure out how they’re related to interstate commerce after the fact. I oppose the majority in Raich v Gonzales, but at least the CSA had a clear regulatory purpose — it was intended to regulate commerce in drugs (if one accepts a complete ban as a type of regulation).

              But what you’re talking about is not logically defensible, it’s just stringing together a chain of relations and claiming you can regulate all of them.

              If the Commerce Clause were replaced by the Squirrel Clause, that argument would morph into “these people traveled on the same road that a squirrel ran across, and we can regulate squirrels, so we can regulate everything those people did after traveling on the road.” Divorced from the case law and precedent it’s clearly an absurd argument.

            2. Yes, the absurdity is absurd.

              But in the end, really, who cares if it’s “constitutional” or not? Obviously, the advocates of expanded federal power are going to interpret the text in any way that will let them do what they want. And obviously, also, they will adopt a legal philosophy that tells them it’s ok to do so.

              Nothing will change about any of this unless you can convince people that the federal power in question is not a good idea. You are not going to box Elizabeth Warren or Sonia Sotomayor into a legal box where they say “Oh, I SEE, our side can’t get what it wants because it’s unconstitutional, so I guess we’ll just give up then!”

              As Circe would say, “POWER is power.”

              1. Yes of course. I understand that the justification is ultimately FYTW but can’t stand people who try to claim there is logical justification for this judicial caprice.

                1. And it’s important to keep pounding on it.

                  I’m not in the optimist camp, personally, and I believe that preserving the ideas of liberty, limited government, negative rights, and all that jazz is going to be key for when the bingo balls eventually tumble back into a position that lets these ideas be implemented again as something more than political cover for FYTW.

                  Who knows, maybe they’ll write a How Libertarians Saved Civilization book one day.

                2. When I say logical, I mean it as pure logical implications (If you’ve taken certain math courses then you’ll know what I mean) from a particular premise.

                  Now I don’t think it is logical for the government to even regulate commerce, interstate or not at all given more fundamental premises, but that is a different matter.

                  Think of it as a program where you’re given the option to click on X.
                  So you click on X. And that gives you the further option to do Y. And click on Y you’re given the option to do Z and so on.

                  And the “..so on” logical derivation is because the program does not have bounds, or the bounds are trumped by giving the option for the user to make these choices.

                  And that unbounded program of power is actually how the Constitution is written, despite all of the intent behind it.

                  In fact refer to an account from Kurt Godel for his citizenship hearing, about contradictions within the constitution that could lead to tyranny:
                  http://robert.accettura.com/wp…..enship.pdf

                  1. But this inconsideration of the unintended consequences of words that give the government power can also be blamed on Madison himself.

                    The enabler of all government actions is the Necessary and Proper Clause, and the jurisprudence of “government interest” is this clause + others.

                    http://en.wikipedia.org/wiki/N…..per_Clause

                    At this time James Madison concurred with Hamilton, arguing in Federalist No. 44 that without this clause, the constitution would be a “dead letter”. At the Virginia Ratifying Convention, Patrick Henry took the opposing view, saying that the clause would lead to limitless federal power that would inevitably menace individual liberty.[3]

                    …. Hamilton countered that the bank was a reasonable means of carrying out powers related to taxation and the borrowing of funds, claiming the clause applied to activities reasonably related to constitutional powers, not just those that were absolutely necessary to carry out said powers. To embarrass Madison, his contrary claims from the Federalist Papers were read aloud in Congress:[4]

                    “No axiom is more clearly established in law or in reason than wherever the end is required, the means are authorized; wherever a general power to do a thing is given, every particular power for doing it is included.”

                    It was pretty astonishing for Madison to write that. It was very naive and shortsighted.

                    I’ll take the “dead letter” of a toothless Congress, thank-you-very-much.

                    1. Regarding

                      If the Commerce Clause were replaced by the Squirrel Clause, that argument would morph into “these people traveled on the same road that a squirrel ran across, and we can regulate squirrels, so we can regulate everything those people did after traveling on the road.” Divorced from the case law and precedent it’s clearly an absurd argument.

                      That’s exactly it. However, there IS case law and clearly established precedent. In fact, the BAD thing about common law, is that it’s built upon precedent–good or bad. Mostly bad, which leads to even more bad.

        5. The definition of regulate at the time the constitution was written was: To make regular. IOW congress has the power to stop states from taxing or denying goods from out of state, not the power to set any rule it wants regarding goods and services that cross state lines. Yes, I know the nazgul disagree. I know there is long standing precedent that says otherwise, but being wrong for a long time doesn’t make it right.

  8. The government may punish “bias-inspired conduct” without offending the First Amendment because bigoted conduct “inflict[s] greater individual and societal harm.”

    Am I stupid or does that claim not make any sense?

    1. It is, but it’s precedent. Lower courts will take it as a given.

      1. And probably higher courts, too.

    2. I think they’re saying that it doesn’t just directly harm the immediate victim, but also terrorizes other people in the same group. That is, it’s theoretically a judgment about the impact on second-order victims, not the political views of the perpetrator.

      1. Using that logic, everything is criminal as there is no action that does not have some negative second order effect.

        1. It isn’t a question of whether it is or should be criminal, it’s a question of whether criminalizing it is a violation of the First Amendment.

          1. It is. Such an argument is hogwash.

            Second order effects are already presumed by the fact that these offenses are crimes against the state. These cases are the US Gov v Random Criminal, not Random Victim V Random Criminal.

            What Hate Crime law does is to criminalize what would otherwise be protected under the first; one’s right to hold what views they choose and express them. They are added on to legitimate offenses to further the State’s societal goals, the which of is counter to the concept of the negative rights the Constitution enshrines, by criminalizing those thoughts or beliefs when they are held by someone who commits another criminal act.

      2. OK, but still not getting how that causes more harm than, say, the terror produced by mugging people on the same street every day (not a hate crime, presumably).

        1. It doesn’t. It gives priority to the indirect result over the direct result of the action.

    3. I know it’s confusing, but it’s easy to explain.

      The official legal theory is “Because fuck you, that’s why”.

      The people with guns, and the people who love them, simply don’t care about the constitution, rule of law, etc. They’ve got the guns, they use them. They make talking noises in imitation of speech and argument to keep people like you wasting time trying to decipher their gibberish instead of fighting back.

      Stop bringing the constitution to a gun fight.

  9. Coincidentally, “Amish Beard Cutters” is the name of my new, ska-metal, bluegrass, jazz, orchestra group project experience.

  10. Been a while since I’ve laughed this hard:

    Don’t vote for this bitch

    1. Don’t worry about Hillary. The next US president will be Elizabeth Warren, your first-grade school teacher. “Hyperion, do not put that pencil in your ear.”

      1. “You thought having a left-wing law professor for President was great, but that he didn’t go far enough? Vote for Elizabeth Warren.”

        Somehow, I don’t think that’s going to sell.

  11. Bishop Samuel Mullet Sr.

    Really.

    1. You are concerned about ‘Mullet’ or ‘Sr.’?

      The ‘Sr.’ is curious to me. At what point in his life do a man decide to put ‘Sr.’ after his name. He’s already named the boy “Jr.” at this point, so putting “Sr.” after his own name would be superfluous.

      My dear dad stuck me with Joseph Jr., but never did the Sr. thing, thank goodness. I hate the name Joseph. You got pregnant how? That and St. Joseph was crucified upside down. Roll models.

      1. But did he do it, or is it simply for court and newspaper purposes, to distinguish him from his son?

  12. “The government may punish “bias-inspired conduct” without offending the First Amendment because bigoted conduct “inflict[s] greater individual and societal harm.” ”

    Because you’re much more dead if someone kills you because they’re “inspired by bias”.

  13. It may be time to codify the notion of “love crime”.

    It’s like “hate crime”, but the punishment would be diminished because the perp was motivated by love. For instance, it could be applied to parents who kill their children to protect them from evil spirits.

    And, of course, there is also the similar “honor crime”.

    1. # It may be time to codify the notion of “love crime”.

      Already done.

      That’s the “good intentions” loophole for the Progressive Theocrats.

      What their victims fail to note is that the intention of ruling your neighbor by force is not a good one.

      1. Well, I see your point.

        But it strikes me as more “sovereign immunity” than “love crime”.

  14. OT Interesting look at guns from across the pond

    http://www.bbc.com/news/magazine-28958364

    1. 18: The number of people age 24 and younger killed by firearms in the US each day — Source: Law Center to Prevent Gun Violence, ABC News

      How many of the 18 were Chicago gang-bangers?

      1. We really ought to do something about those firearms hovering around and autonomously killing 24 year old children.

    2. This week, a nine-year-old girl firing an Uzi submachine gun accidentally shot to death her weapons instructor.

      And 99% of gun owners in the US will consider her weapons instructor an irresponsible idiot and prime Darwin Award candidate for handing a 9 year old girl such a powerful gun. Luckily, no one in Britain ever does something stupid and gets themselves killed because guns are banned.

  15. This should have some bearing on the cases of the anti gay bakers and wedding photographers.

    Isn’t it clear that THOSE people wouldn’t have been prosecuted were it not for THEIR religious beliefs? And aren’t they, effectively, now being persecuted (by being excluded from opening a business) for those beliefs?

    1. Different prong on the same progressive pitchfork. That’s the other ugly side to the mentality at work here. This one is active, rather than reactive, like hate crime laws. In this case holding any view, religious or otherwise that compels one to refuse to associate with a class that has been given government protection as part of the government’s social engineering goals is criminalized.

      1. For example, you could be an atheist who holds a belief that homosexuality is a maladaptive trait that should be somehow purged from humans and thus wish to do nothing to assist in their survival and you would be on the same legal footing as someone who won’t help them because Jesus. The person’s protected status trumps all of your first amendment rights because fuck you that’s why.

    2. Bear in mind that Progressiveness is not a religion. It is the full fruition of humankind’s application of reason to the problem of life. Religion is but a primitive attempt at this. Either the future will governed progressives or snake handlers from Appalachian trailer parks.

      1. Lol!
        I always thought that the Hegalian philosophy of History progressing towards some definite end was just a secularized version of the Christian idea of the Kingdom of Heaven coming down to Earth.

        Progressives are just the mental descendents of the utopian Christians of the 17th century.

        1. Progressives are simply puritans. They’re constantly upset that people are doing things without their permission, outside of their orthodoxy. The irony is that their orthodoxy is almost diametrically opposed to the puritans of yore.

          And yeah, insert here mandatory Mencken quote about someone, somewhere, having fun.

          1. Indeed. Progressives hate it when people do things like eat tasty food on disposable plates. One must conform to an ascetic lifestyle of raw veganism and carefully recycle every piece of wrapping to atone for one’s sins against the planet.

      2. I’ll take my chances with the snake handlers.

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