The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
Federal Threats / False Statements Indictment for "Hate Crime Hoax"
From Tuesday's press release by the U.S. Attorney's office in Colorado:
The United States Attorney's Office for the District of Colorado announces that Derrick Bernard Jr., 35, Ashely Blackcloud, 40, and Deanna West, 38, were indicted by a federal grand jury for maliciously conveying false information about a threat made by means of fire: a burning cross in front of a campaign sign defaced with a racial slur.
According to the indictment, the three defendants were charged for their alleged roles in a conspiracy to spread disinformation about the threat. The 2023 Colorado Springs mayoral run-off election involved Candidate 1, who was Black, and Candidate 2, who was white. After the initial election but before the run-off, Bernard sent a message to the other defendants in which he explained he was "mobilizing my squad in defense. Black ops style big brother." He also sent messages referencing a desire to prevent "the klan" from gaining political control of the city. Bernard then worked with Blackcloud and West to stage, at an intersection in the City of Colorado Springs in the early hours of April 23, 2023, a cross burning in front of a campaign sign for Candidate 1 defaced with a racial slur. The three then allegedly spread false information about the event through an email from an anonymous source to various news and civic organizations.
From the indictment:
During the election, supporters of CANDIDATE 1 placed a campaign sign encouraging others to vote for CANDIDATE 1 in a grassy area on the northwest corner of the intersection of North Union Boulevard and East Fillmore Street, two of Colorado Springs's major traffic arteries. On or about April 23, 2023, between approximately 2:30 a.m. and 3:30 a.m. BERNARD, BLACKCLOUD, and WEST worked together to place a wooden cross in front of that campaign sign. Red spray paint, similar in kind to a can later found in the passenger compartment of BLACKCLOUD's car, was used to write the word "nigger" on the sign. The wooden cross was then set on fire….
[L]ater in the evening …, BLACKCLOUD and WEST worked together to send an email … to, among others, local broadcast news outlets. Attached to the email was the above photograph and the video[, which they themselves took]. Several news organizations published news stories on the cross burning.
The indictment also alleges other things the defendants did to further publicize the supposed "hate crime" that they themselves created.
All this, the prosecutors argue, constitutes a violation of 18 U.S.C. § 844(e) (as well as conspiracy to violate it):
Whoever, through the use of the mail, telephone, telegraph, or other instrument of interstate or foreign commerce, or in or affecting interstate or foreign commerce,
willfully makes any threat,
or maliciously conveys false information knowing the same to be false, concerning an attempt or alleged attempt being made, or to be made, to kill, injure, or intimidate any individual or unlawfully to damage or destroy any building, vehicle, or other real or personal property by means of fire or an explosive
shall be imprisoned for not more than 10 years or fined under this title, or both.
