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Can You Be Charged With A Felony Hate Crime For Resisting Arrest?

Posted by Alex K. Kriksciun | Feb 22, 2017 | 0 Comments

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Last year, the powers that be in Baton Rouge, in their infinite wisdom, passed what is now being referred to as the “Blue Lives Matter Law.”  The bill amended LSA-R.S. 14:107.2(A), the Louisiana hate crime statute to include “actual or perceived employment as a law enforcement officer or firefighter” to the classes of persons that are protected by the hate crimes law. Other classes of people include those selected because “actual or perceived race, age, gender, religion, color, creed, disability, sexual orientation, national origin, or ancestry of that person.” 

The bill was sponsored by Rep. Lance Harris, R-Alexandria.  Rep. Harris was apparently concerned that there is “a concerted effort to harm police officers” in the Bayou State.  As many are aware, last year Alton Sterling, a black Baton Rouge resident, was shot several times at close range while held down on the ground by, but apparently struggling with, two white Red Stick cops.  That shooting led to massive protests in Baton Rouge over several days.  Twelve days later, a deranged individual shot six police officers (both BRPD and East Baton Rouge SO), killing three.  It is unknown if the police shootings were related to the Sterling shooting.

In case anybody was wondering (or even cares), I think that the law is misguided and could easily be called racist in the sense that it is likely to have a disproportionate impact on people of color.  My goal in writing this, however, is to consider the practical impacts of the law.  The law provides that if a person commits a misdemeanor against a firefighter or law enforcement officer solely based on their status of the same, they can be sentenced up to an additional six months' imprisonment.  The penalty must be served consecutively to the sentence for the underlying offense.  Similarly, if a person commits a felony against a firefighter or law enforcement officer, that person can be sentenced to a maximum of five years' additional imprisonment, to be served consecutively.

As far as I can tell, the first attempted use of the new law occurred here in New Orleans, when a 34-year-old man was arrested for simple criminal damage to property, disturbing the peace and a felony-level hate crime. He allegedly got loaded, started banging on a window at the Royal Sonesta (a nice hotel on Bourbon St.), called a witness the N-word, then began to “verbally attack members of the New Orleans Police Department.”  Apparently he called a female officer the C-word and another (presumably black) NOPD officer the N-word.

A couple of things here.  First, this guy's poor choice of words was clearly not associated with the simple criminal damage.  In other words, damaging the window cannot be considered an “underlying offense.”  Theoretically, police might have alleged that the disturbing the peace charge was an underlying offense.  But disturbing the peace is a misdemeanor, and if police were making that allegation, they should have charged him with a misdemeanor hate crime.  Charging the felony makes no sense whatsoever.  Also, in order to convict this guy (who I note is a person of color) of a hate crime, the state would have to prove beyond a reasonable doubt that he selected a law enforcement officer to commit an offense against based solely on that person's status as a law enforcement officer.  That would be well-nigh impossible in this case.  This dude obviously had a few too many pops in the Quarter and was being belligerent.

Five days after the arrest, an NOPD spokesman admitted that the “responding officer incorrectly applied” the Blue Lives Matter law.  Unsurprisingly, the DA's office refused the charge.  The NOPD's second attempt at charging the law backfired completely.  The second arrestee allegedly told a 911 dispatcher that “he was going to shoot and kill any officer that responded to the [911] call” he was in the process of making.  Commissioner Blackburn found no probable cause for the felony charge, however, he did find probable cause for a misdemeanor.  I checked the Orleans docket master and it appears that the DA's office chose to proceed with the misdemeanor prosecution.

The law has been in the news again recently on the heels of St. Martinville Police Chief Calder Hebert stating that if a person is arrested for shoplifting in his town and resists arrest, that person will be charged with a felony hate crime.  Stick to your day job, Sheriff (whatever that is).  It seems pretty obvious that he can't charge a felony hate crime if the underlying offense is a misdemeanor, as shoplifting is.  I suppose it's possible that they could charge a felony hate crime if the underlying offense is a felony, but again, before the state could move forward with prosecution, it should reasonably believe that it can prove beyond a reasonable doubt that the arrestee targeted a law enforcement officer.  Can it do this merely by showing that a person resisted arrest? 

I don't think so.  Any resisting of arrest charge will necessarily be “committed” against law enforcement officers.  That's part of their job – to arrest persons who are breaking the law and to subdue those who resist arrest.  Put differently, how can you “target” a law enforcement officer by resisting arrest when you can only commit the offense of resisting arrest against law enforcement officers?  It defies common sense and all logic.  Chief Hebert also gives us this nugget: “Resisting an officer or battery of a police officer was just that charge, simply. But now, Gov. Edwards, in the legislation, made it a hate crime now.”  Uh, no.  Hate to beat a dead horse, but the new hate crime offense requires a showing that the arrestee targeted law enforcement.  The chief has no idea what he's talking about.

It seems to me that this law was passed for political pandering.  A conservative legislator proposed the law due to a perceived sense that law enforcement officers were being targeted for violence, particularly by people of color.  Some of this is justified (see above).  In the wrong hands, the Blue Lives Matter law could be used indiscriminately and wrongly.  Something like 35 states are considering similar laws, so this dumb new law may be coming to a police force near you sooner rather than later.

About the Author

Alex K. Kriksciun

Attorney at Law/Notary Public Alex K. Kriksciun has devoted most of his legal career to defending the rights of people accused of crimes and the rights of people harmed by the negligence of others.  Whether the case involves a municipal citation, a life imprisonment without parole case, a wrongf...


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