Looting Businesses in Part Because They Are Patronized By / Associated With Racial Group = Hate Crime

Might be obvious, but worth noting.

|The Volokh Conspiracy |

I wrote yesterday about a Black Lives Matter Chicago statement that publicly defended looters, in part by saying:

"Over the past few months, too many people—disproportionately Black and Brown—have lost their jobs, lost their income, lost their homes, and lost their lives as the city has done nothing and the Chicago elite have profited," the group's statement reads. "When protesters attack high-end retail stores that are owned by the wealthy and service the wealthy, that is not 'our' city and has never been meant for us."

Now attacking a store because it's associated with the wealthy isn't a hate crime under Illinois law. But if it can be proved that a looter attacked a store partly because it was associated with people who are not "Black and Brown" (whether those people were owners, indirect owners, managers, or patrons), that would be a hate crime—just as of course it would be a hate crime to attack a store partly because it was associated with people who were "Black and Brown."

Illinois hate crime law is quite broad; it provides,

A person commits hate crime when,

by reason of the actual or perceived race, color, creed, religion, ancestry, gender, sexual orientation, physical or mental disability, or national origin of another individual or group of individuals,

regardless of the existence of any other motivating factor or factors,

he or she commits assault, battery, aggravated assault, intimidation, stalking, cyberstalking, misdemeanor theft, criminal trespass to residence, misdemeanor criminal damage to property, criminal trespass to vehicle, criminal trespass to real property, mob action, disorderly conduct, transmission of obscene messages, harassment by telephone, or harassment through electronic communications ….

And the law doesn't require a showing that the act was motivated by the victim's attributes, see In re BC (Ill. 1997); being motivated by the attributes of the victim's associates or patrons suffices. (This makes the law broader than the one upheld against a First Amendment challenge in Wisconsin v. Mitchell (1993), but Illinois courts have upheld this one against a First Amendment challenge.)

Of course, it's up to prosecutors to decide whether they would charge a hate crime in such a situation. And of course in some situations the defendants wouldn't have sufficiently signaled their racial motivation, and it might not be possible to prove such motivation (as opposed to the facts of the underlying theft or vandalism, or the desire to steal property or attack the wealthy regardless of race). But if defendants indicate that they are attacking businesses in part because the businesses are seen as associated with whites (or with Asians or with blacks or with Hispanics, as might be the case in that particular riot), that is indeed a hate crime under Illinois law.

NEXT: Left, Right, and Center Respond to Joe Biden's Veep Pick, Kamala Harris

Editor's Note: We invite comments and request that they be civil and on-topic. We do not moderate or assume any responsibility for comments, which are owned by the readers who post them. Comments do not represent the views of Reason.com or Reason Foundation. We reserve the right to delete any comment for any reason at any time. Report abuses.

  1. “it’s up to prosecutors to decide whether they would charge a hate crime in such a situation”

    Current Cook County prosecutor is not going to do that.

    The looters are getting released immediately. Even the kooky mayor is fed up.

    1. Don’t forget that the way a prosecutor moves up in his career is to become attorney general, which is an elected office, meaning you have to be a politician to get it.

      This means all prosecutions leading up to it have to be done with an eye towards politics.

    2. Does Illinois Law permit the State AG to step in and prosecute instead? Some states permit this.

    3. Well, there are also FEDERAL hate crimes statues: https://www.justice.gov/crt/hate-crime-laws

      As most (all?) of these luxury goods were manufactured outside of Illinois, there definitely is “interstate commerce” involved, and burning & looting definitely interferes with it, could the US Attorney prosecute if the local schmucks don’t want to?

      And what’s not being said yet is that the thugs believe the stores all to be owned by Jews. I don’t know how many (if any) actually are, but the statute says “perceived” so that’s a moot point.

      1. If the Feds are prosecuting someone who tried to paint over “black lives matter” in a public roadway as a hate crime then looting isn’t too far off target.

        1. No way, are they really doing that?

        2. You gotta be kidding. There are FHA line standards being violated.

      2. The federal hate crime statute,18 U.S.C. §  249, does not cover property crimes.

  2. If you think you can come up with a weapon that only attacks the other side, just wait for the pendulum to swing.

    The United States didn’t have a monopoly on the nuclear bomb for long before the Soviets got it to.

    Before you give the government power, ask yourself, “would I be comfortable with Trump wielding this?”, Because eventually, someone like him will.

    This is why breaking the norm against court-packing and eliminating the filibuster is a bad idea, if the Democrats do it, then the Republicans will too when it’s their turn, then the supreme Court becomes a political football in play every election, not just once in a blue moon when a justice dies.

    1. As I keep pointing out, the Democrats know this, and there are two logical responses to this knowledge:

      1) Don’t pack the Court.

      or,

      2) Pack the Court, and then rig things so the Republicans never get their turn.

      If they pack the Court you have to assume they’re also going to rig future elections.

      1. What future elections?

        1. Fortunately, if you believe the liberal media Trump has headed the Dem plan to cancel all future elections off at the pass. He is just going to stay in office and become our dictator. So no need to worry about the Dems doing that.

      2. “rig things so the Republicans never get their turn”

        Where “rig” = the natural progress of modern America’s electorate (less bigoted, less white, less rural, less religious, less backward)

        1. Vocal Dems have never been more bigoted in my lifetime. Or perhaps more accurately they’ve never been so proud as you appear to be to advertise bigotry based on race, rural, or religious status.

          1. “Vocal Dems have never been more bigoted in my lifetime. Or perhaps more accurately they’ve never been so proud as you appear to be to advertise bigotry based on race, rural, or religious status.”

            A very good description of the Rev AK

            1. I think it’s nice that Prof. Volokh provides a forum at which like-minded conservatives and Republicans can gather, offer unvarnished conservative thinking (largely free of mainstream influence), and enjoy the type of camaraderie that enables disaffected conservatives to feel ‘normal’ despite a society that rejects them.

              Life at the fringe can be lonely, I gather. Everybody should have the opportunity to enjoy a safe space now and then.

              1. Trump won the popular vote by 46% as opposed to Hillary’s 48%

                I would hardly say conservatives are rejected by society when they make up approximately half of it.

                Rather, theyre rejected by the loudest liberal voices which intimidate business and media into giving them a platform and doing their bidding.

                Don’t think conservatives are being cancelled cuz they are such a small minority of evil people. They’re being canceled because liberals are so much more aggressive about it.

                And it brings up a good question, if you think it’s good that conservatives have their safe space, what are you doing here? Trying to give equal time and a troll’s version of the fairness doctrine because your butt hurt that conservatives don’t get flack from the professor, all the while giving a pass to progressive websites that don’t do the same for conservatives.

                Winning pointless points in a meaningless game where no one is keeping track of the score.

                1. “Trump won the popular vote by 46% as opposed to Hillary’s 48%

                  I would hardly say conservatives are rejected by society when they make up approximately half of it.”

                  The President won 46% of the vote, which is about 62M people (not half of the country). Moreover not all conservatives voted for the President, and not everyone who voted for the President is conservative. Only about 1/3rd of the country self-identifies as conservative. Even fewer identify as “liberal”. For party identification, it goes Independents > Democrats > Republicans (right now, these numbers fluctuate).

                  1. Pres. Trump also attracted voters who were anti-social, resentful, and disaffected (‘just watch it burn’) rather than conservative.

                  2. In the absence of statistics on the percentage of people who self-identify, (would self-identification even be valid? If not, what should you use?) Presidential voting would be a decent proxy, assuming voter turnout are the same for both sides.

                    In the minds of many partisans such as our dear Reverend, Democrat=liberal and Republican=conservatives so that’s what I’m going with.

                    1. The reason Republicans have been competitive in recent national elections and political debates is our system’s structural amplification of backwater votes at the Electoral College and Senate.

                      Republicans have lost the popular vote in six of the seven most recent national elections. Polling indicates the Democrats are likely to make it seven for eight. Demographic trends indicate it will become increasingly difficult for Republicans to win a national election — or statewide elections in modern, accomplished, educated states — throughout the foreseeable future.

        2. Said by the most bigoted, most backward and least tolerant commentor in these threads.

          1. Compared to the guy who literally calls for liberals to be executed?

            1. That’s just Artie in drag.

            2. Yeah, it’s a really low bar – and somehow RAK manages to fall under it with remarkable consistency.

        3. You could have said that years ago when Democrats where in power, and yet here we are with the Republicans running the show.

          Iran and Saudi Arabia used to be quite liberal by today’s standards, same with Poland.

          But carry on, confidence and complacency weakens your side.

      3. Brett, given the advantage the electoral college gives Republicans, and given that Wyoming gets to cancel California in the Senate, and given that changing either of those things would require amending the Constitution, can you please explain to me how the Democrats could possibly rig elections even if they wanted to?

        I very much doubt the Democrats are actually going to try to pack the court. I think it’s all just talk. There aren’t that many Democrats who are actually supportive. But it makes a great talking point for Fox News and a good fundraising tool for the GOP.

        1. Well, they can add two states — presumably DC and Puerto Rico — as soon as they gain power. That doesn’t take an amendment; it just takes an ordinary vote. That would likely give them four extra seats in the Senate and several extra in the House. (It’s hard to say for sure, since it would depend on whether the House were expanded or not.)

          1. To be clear, I wouldn’t describe that as “rigging” elections, but I think people like Brett might; in any case, it would certainly give them a structural advantage.

            1. Don’t forget the overdue enlargement of the House of Representatives, which would diminish the unearned amplification of rural voices at the Electoral College.

              Democrats seem destined to benefit from expanding popularity among the modern American electorate as our nation continues to improve. Winning elections is going to solve a lot of problems. Maybe not in Wyoming, Idaho, or Mississippi — at least not for some time — but that seems a challenge that can be overcome by disregarding it.

              1. Actually, enlarging the House would do very little to effect its partisan composition, might even make the Democrats inefficient distribution of voters even harder to negate. You’d have to run the math, but I don’t think it’s favorable to the Democratic party. The granularity of small state representation is a mixed bag, largely nets out, so reducing that wouldn’t do much.

                You’d improve your chances in the Electoral College a bit, but lower your chances of capturing the House.

                1. A large state’s proportion will not change much, but a number of small states are disadvantaged in the house due to the current large granularity. Making more will give them a bigger proportional amount.

                  1. That’s true. The reason I said that it largely nets out is that the small states aren’t exclusively Republican. Both parties benefit about the same from the small state advantage.

            2. it would certainly give them a structural advantage.

              Perhaps it is more accurate to say that it would reduce their structural disadvantage.

              There is certainly ample precedent in American history for adding states to to gain partisan advantage.

          2. As David said, adding states guaranteed to be Democratic.

            The “time, place, and manner” authority would allow them to outlaw voter ID laws nationally, make ballot harvesting legal everywhere, and even mandate pro-Democrat gerrymandering.

            They could nationalize all illegal immigrants.

            With a compliant, packed Court, they could bring back campaign censorship laws.

            They could get aggressive with gun control; Even under current precedent, if they made the penalty for failing to turn in your guns less than a year, you could no longer demand a jury trial. Open and shut cases could lead to disenfranchising a large part of the conservative population.

            Really, there are an enormous number of ways to rig election outcomes if you have the White house and both chambers of Congress, and no shame. And even more if you’ve neutered the Supreme court. The continued viability of democracy has always depended on the party in power being willing to let democracy continue functioning.

            1. Brett,

              Your paranoia about the Great Democratic Conspiracy Against Democracy is just that – paranoia. You publishing it in a comment is no proof at all of its existence.

              Really, there are an enormous number of ways to rig election outcomes if you have the White house and both chambers of Congress, and no shame. And even more if you’ve neutered the Supreme court. The continued viability of democracy has always depended on the party in power being willing to let democracy continue functioning.

              Yeah. You could try to rig the census, gerrymander Congressional districts, make baseless attacks on things like mail-in voting, make bogus claims of vote fraud to suppress voting, let states continue to do all they want to disenfranchise minority voters, and so on.

              Do you have any self-awareness?

          3. The Republican platform actually call for the admission of Puerto Rico, so it’s hard to see how it could be part of a nefarious plot by the Democrats.

        2. Universal mail in voting.

          There would never be a real election from that point on.

          1. “Universal mail in voting.”

            Also known as ‘the damnable hellscape that is Oregon.’

          2. But I thought absentee voting was Jim-dandy, and mail-in was great in Florida.

            Do you really believe all that crap?

        3. Eleven of the Democratic presidential candidates stated, on the record, that they either would do so, or were open to it, including Kamala Harris and Elizabeth Warren.

    2. “If you think you can come up with a weapon that only attacks the other side, just wait for the pendulum to swing.”

      Well, I really don’t want *anyone* attacked on skin color. Anyone.

      1. It’s becoming increasingly clear, that the lines between anti-racism and anti-white, are blurred with some people.

        1. Non-existent in many cases.

  3. Given that the looters are not being arrested and prosecuted for looting, they are not going to be prosecuted for hate-crime looting.

    1. What are you talking about? At least a hundred were arrested?

      1. Prosecuted?
        Incarcerated?

        1. Usually it takes more than 24 hours to prosecute, doncha think?

      2. In one city. On one occasion. And only because the mayor was literally asleep.

  4. BLM demanding immunity from the law is the same sort of injustice they want to fight against. You can’t fight injustice with more injustice.

    1. No, but you can actively pursue injustice while claiming to be fighting injustice. That’s what BLM is doing.

  5. Well people always did say BLM is an inherently racist organization. So this does not surprise one bit.

    1. Subversive, Jimmy, not just racist but fundamentally subversive.

      1. What is this, the 1950s? You going to start yelling about sedition next?

        You know who worries about subversives? China. And back in the day the USSR. I’d wager Cuba and Venezuela as well.

        We flirted with it for a while, but in the end that authoritarian nonsense wasn’t us.

        1. You’re like some nagging grandma in here always gone policing.

          They publicly state their goals. One or more are clearly subversive.

          1. tone policing*

          2. I’m concept policing. Subversion is dumb-ass McCarthyism nonsense.

            1. “Subversion is dumb-ass McCarthyism nonsense.”

              There were in fact US citizens who actively worked to subvert the US during that period. Do you deny it?

              1. I deny it was worth going after them for it.

            2. Subversive: “seeking or intended to subvert an established system or institution.”

              Some excerpts of BLM’s goals:

              “When we gather, we do so with the intention of freeing ourselves from the tight grip of heteronormative thinking”

              “We are committed to being self-reflexive and doing the work required to dismantle cis-gender privilege ”

              “We are committed to dismantling the patriarchal practice that requires mothers to work “double shifts” ”

              “We are committed to disrupting the Western-prescribed nuclear family structure requirement ”

              These definitely meet the standard definition of “subversive”, maybe you’re using your own, unique, definition of the term in your whining.

              1. You scared?

                Again, this is just dumb-ass McCarthyist nonsense.

                1. Right, and you can still use “McCarthyist nonsense” as a slam, despite knowing for a fact that our government really WAS lousy with communists, despite knowing that they murdered over 100M people in the last century, and so on, and so forth.

                  People on the left just can’t bring themselves to think of communists as anything but harmless, well meaning eccentrics, despite their death toll. And there’s no greater crime than pointing that death toll out, and suggesting it has implications for how you should treat communists at home.

                  1. McCarthyism was way over-inclusive and very much American flirting with authoritarian thought policing.

                    I don’t like Communists, but I also think we shouldn’t persecute Americans for what they believe.

                    Attacking BLM for being subversive is exactly that kind of thoughtcrime nonsense.

                    If they’re breaking stuff and looting, go after them.
                    If they’re saying stuff you really don’t like, explain why they’re wrong.

                    Right now you have people throwing pipe bombs at protesters, so maybe stop with the overheated rhetoric.

  6. Are you now supporting “hate crime” legislation? Not very libertarian of you …

    1. 1. I don’t see Prof. Volokh expressing support (or opposition) to this statute: he’s simply analyzing its potential application to this conduct.

      2. I don’t see any particular reason why supporting (or opposing) this statute would (or wouldn’t) be libertarian.

      3. As the subtitle notes, the bloggers are are “often libertarian”, which should at least strongly imply that one some issues, some of them will not be libertarian.

      1. I generally don’t support hate crime statutes as a policy matter, though I also think they generally aren’t unconstitutional, and I think the policy case against them is complicated. At the same time, I think that, if the laws exist and are enforced, they should be enforced as evenhandedly as possible.

        1. I hope you’re keeping your eyes closed because we’ve seen months of uneven enforcement in the case of the BLM rioters and pillagers, and years in the case of people with Democrat privilege.

          1. Have we, though?

  7. I’m not sure some prosecutors consider looting a crime at all, much less a hate crime.

    1. And if looting was the reparations that BLM is demanding does that mean we can cancel that demand now?

  8. nice try but they’ve already redefined racism and hatecrime so that only whites can do either doncha know?

  9. Trump won the popular vote by 46% as opposed to Hillary’s 48%

    I would hardly say conservatives are rejected by society when they make up approximately half of it.

    Rather, theyre rejected by the loudest liberal voices which intimidate business and media into giving them a platform and doing their bidding.

    Don’t think conservatives are being cancelled cuz they are such a small minority of evil people. They’re being canceled because liberals are so much more aggressive about it.

    And it brings up a good question, if you think it’s good that conservatives have their safe space, what are you doing here? Winning pointless points in a meaningless game where no one is keeping track of the score.

  10. Is there any way of getting a private right to prosecute these crimes, or at least to evidence the police may have but don’t want to share, in a state like Illinois where police and prosecutors won’t act because they are corrupt and/or support the rioters’ ideology?

    Better yet, can hate crimes or RICO be made to stick to *them*?

    1. Are you asking whether the police or prosecutors in Chicago can be charged with RICO for not charging looters with hate crimes?

      If so, the answer to your question is no.

  11. The problem isn’t that some demonstrators have brown *skins,* the problem is that some demonstrators act like they should be wearing brown *shirts.*

  12. So far as private lawsuits and injunctions are concerned, when the organization sponsoring the protest endorses looting or other violence, that would seem to take the situation outside the facts of Claiborne Hardware.

    Once the sponsor endorses violence, violence is not merely incidental to the protest. Accordingly, the sponsor can be sued and activities enjoined.

Please to post comments

Comments are closed.