The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
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.