# Overview of Federal Hate Crime Laws > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/crs%3AR47060 ## Record - **Collection:** Congressional research report - **Document type:** CRS Report - **Published:** April 1, 2022 - **Citation:** R47060 ## Text Overview of Federal Hate Crime Laws April 1, 2022 Congressional Research Service https://crsreports.congress.gov R47060 SUMMARY Overview of Federal Hate Crime Laws R47060 April 1, 2022 Incidents such as the fatal shootings at Emanuel African Methodist Episcopal Church in Charleston, South Carolina in 2015, the killing of a counter-protester at the 2017 “Unite the Right Peter G. Berris Rally” in Charlottesville, Virginia, the 2018 shooting deaths of worshipers at a Pittsburgh Legislative Attorney synagogue, the 2020 killing of Ahmaud Arbery, and the fatal 2021 Atlanta spa shootings, among others, continuously renew interest in the scope and applicability of federal laws governing hate crimes. The Federal Bureau of Investigation (FBI) characterizes a hate crime as a criminal offense motivated, at least in part, by bias against the victim’s “race, religion, disability, sexual orientation, ethnicity, gender, or gender identity.” In 2020 (the most recent year for which statistics are available) there were 8,263 incidents of bias-motivated crimes (involving 11,472 victims) reported to the FBI. The majority of bias-motivated crimes are prosecuted at the state and local level. Depending on the circumstances, federal prosecution of bias-motivated conduct also may be possible under a variety of statutes, including:    18 U.S.C. § 241: Prohibiting conspiracy to deprive another of federally-protected rights;  42 U.S.C. § 3631: Prohibiting, among other things, willful injury to, intimidation of, or interference with an individual because that person’s race, color, religion, sex, disability, familial status, or national origin and because of that person’s enjoyment of certain federally-protected housing rights;  18 U.S.C. § 247: Prohibiting, among other things, intentionally damaging a religious real property because of the religious character of that property (assuming it affects interstate commerce), or because of the race, color, or ethnic characteristics of any individual associated with that religious property; 18 U.S.C. § 242: Prohibiting willful deprivation of federally-protected rights under color of law; 18 U.S.C. § 245: Prohibiting, among other things, willful injury to, intimidation of, or interference with an individual because of that person’s race, color, religion, or national origin and because of that person’s participation in certain enumerated protected activities;  18 U.S.C. § 249: Prohibiting willfully causing bodily injury to another because of actual or perceived race, color, religion, or national origin, gender, sexual orientation, gender identity, or disability. If the federal government decides not to prosecute a bias-motivated crime under the federal hate crime statutes, a defendant’s bias may still be relevant at sentencing pursuant to the United States Sentencing Guidelines, which advise federal courts to impose an enhanced sentence where the fact finder (the judge or the jury) determines beyond a reasonable doubt that a defendant committed a crime because of the actual or perceived race, color, religion, national origin, ethnicity, gender, gender identity, or sexual orientation of the victim. As evidenced by the enactment of the Emmett Till Antilynching Act and the introduction of a variety of hate crimes legislation in the 117th Congress, Congress may consider ways to further legislate to punish acts of bias-motivated crimes, and its authority to do so depends in part on the constitutional provision on which it relies. Federal hate crime laws generally are premised on Congress’s authority to legislate under some combination of the Commerce Clause and the Thirteenth, Fourteenth, and Fifteenth Amendments. The Thirteenth Amendment abolished slavery and involuntary servitude and permits Congress, in the Supreme Court’s words, to abolish the “badges and incidents of slavery” through legislation. While it has been broadly interpreted by courts to afford protections for all races, courts have found that the Thirteenth Amendment does not prohibit discrimination based on factors such as gender or sexual orientation. Section 5 of the Fourteenth Amendment empowers Congress to enforce various constitutional rights through legislation, but only with respect to the conduct of government actors, as opposed to private individuals. The Fifteenth Amendment authorizes Congress to enforce through legislation the right to vote free from denial or abridgement “on account of race, color, or previous condition of servitude”; however, Congress’s reach under this Amendment does not extend to federal rights that are unrelated to voting. Finally, the Commerce Clause (Art. I, sec. 8, clause 3) gives Congress broad authority to regulate interstate and foreign commerce, but the Supreme Court has held that this authority does not extend to purely local conduct that does not have a sufficient nexus to either interstate or foreign commerce. Congressional Research Service Overview of Federal Hate Crime Laws Contents Federal Hate Crime Statutes ............................................................................................................ 4 Key Concepts in Federal Hate Crime Statutes .......................................................................... 4 Conduct Occurring “Because Of” ....................................................................................... 4 Conduct Occurring Because of Specific Characteristics .................................................... 8 Prohibited Conduct under Federal Hate Crime Statutes ......................................................... 14 Conspiracy Against Free Exercise or Enjoyment of Rights, 18 U.S.C. § 241 .................. 14 Deprivation of Rights under Color of Law, 18 U.S.C. § 242 ............................................ 17 Violent Interference with Federally Protected Rights, 18 U.S.C. § 245 ........................... 21 Criminal Interference with Right to Fair Housing, 42 U.S.C. § 3631 .............................. 27 Damage to Religious Property or Obstruction of Free Exercise, 18 U.S.C. § 247 ........... 30 Matthew Shepard and James Byrd Jr. Hate Crimes Prevention Act of 2009, 18 U.S.C. § 249................................................................................................................... 34 Penalties under Federal Hate Crime Statutes .......................................................................... 39 Hate Crimes Sentencing Enhancement ......................................................................................... 40 Constitutional Authority Considerations ....................................................................................... 42 Commerce Clause Power .................................................................................................. 43 The Thirteenth Amendment .............................................................................................. 46 The Fourteenth Amendment ............................................................................................. 48 The Fifteenth Amendment ................................................................................................ 49 Overview of Select Hate Crime Legislation in the 117th Congress ............................................... 50 George Floyd Justice in Policing Act of 2021 (H.R. 1280)..................................................... 51 Stop Hate Crimes Act of 2021 (H.R. 2416) ............................................................................ 51 Preventing Antisemitic Hate Crimes Act (S. 1939; H.R. 3515) .............................................. 52 Emmett Till and Will Brown Justice for Victims of Lynching Act of 2021 (H.R. 1727) .............................................................................................................................. 52 Tables Table 1. Select Federal Hate Crime Provisions Limited to Conduct Occurring Because Of Specific Characteristics ................................................................................................................ 9 Table 2. Overview of Maximum Prison Terms by Federal Hate Crime Statute ............................ 39 Contacts Author Information........................................................................................................................ 54 Congressional Research Service Overview of Federal Hate Crime Laws ate, in and of itself, cannot be criminalized.1 When hate motivates criminal conduct, however, such conduct may be classified as a hate crime—defined by the Federal Bureau of Investigation (FBI) as a “criminal offense against a person or property motivated in whole or in part by an offender’s bias against a race, religion, disability, sexual orientation, ethnicity, gender, or gender identity.”2 According to the FBI, hate crimes are “traditional offenses like murder, arson, or vandalism with an added element of bias.”3 H In 2020, the FBI received reports of 8,263 incidents of bias-motivated crimes involving 11,472 victims.4 Hate crime laws have garnered significant public attention, as evidenced by the widespread media coverage of the reported rise in hate crimes during the Coronavirus Disease 2019 (COVID-19) pandemic.5 Over the years, Congress has maintained a perennial interest in hate crime laws, and a number of relevant proposals have been introduced in recent Congresses to either enact new or amend existing federal hate crime laws.6 Federal prosecutors have a number of statutory options for charging hate crimes depending on the nature a defendant’s conduct.7 Examples include: 1 See United States v. Schwimmer, 279 U.S. 644, 654-55 (1929) (Holmes, J., dissenting) (“[I]f there is any principle of the Constitution that more imperatively calls for attachment than any other it is the principle of free thought—not free thought for those who agree with us but freedom for the thought that we hate.”), overruled in part by Girouard v. United States, 328 U.S. 61, 66 (1946); see also United States v. Apfelbaum, 445 U.S. 115, 131 (1980) (“In the criminal law, both a culpable mens rea and a criminal actus reus are generally required for an offense to occur.”); WAYNE R. LAFAVE, SUBSTANTIVE CRIMINAL LAW § 6:1 (3d ed. 2019) (“Bad thoughts alone cannot constitute a crime; there must be an act, or an omission to act where there is a legal duty to act.”). 2 Hate Crimes, FBI, https://www.fbi.gov/investigate/civil-rights/hate-crimes (last visited Mar. 15, 2022). The FBI has specified that this definition is for “the purposes of collecting statistics.” Id. 3 Id. 4 These figures combine the FBI totals for single-bias and multiple-bias incidents. Press Release, Federal Bureau of Investigation, FBI Releases Updated 2020 Hate Crime Statistics (Oct. 25, 2021), https://www.fbi.gov/news/pressrel/press-releases/fbi-releases-updated-2020-hate-crime-statistics. The FBI data is dependent on a number of factors such as individuals and agencies reporting hate crimes. See generally CRS Report R46318, Federal Data on Hate Crimes in the United States, by Nathan James and Emily J. Hanson. The FBI numbers are likely low, as “it is believed that violent hate crimes are significantly under-reported.” H.R. REP. NO. 111-86, at 5 (2009). 5 See generally CRS Legal Sidebar LSB10446, An Overview of Federal Criminal Laws Implicated by the COVID-19 Pandemic, by Peter G. Berris (discussing hate crimes committed against Asians and Asian Americans during COVID19 pandemic, and media coverage of those incidents). In a January 26, 2021 memorandum, the Biden Administration announced that the Attorney General “shall explore opportunities to support, consistent with applicable law, the efforts of State and local agencies, as well as [Asian American and Pacific Islander] communities and community-based organizations, to prevent . . . hate crimes against [Asian American and Pacific Islander] individuals, and to expand collection of data and public reporting regarding hate incidents against such individuals.” Memorandum from White House Condemning and Combating Racism, Xenophobia, and Intolerance Against Asian Americans and Pacific Islanders in the United States (Jan. 26, 2021), https://www.whitehouse.gov/briefing-room/presidentialactions/2021/01/26/memorandum-condemning-and-combating-racism-xenophobia-and-intolerance-against-asianamericans-and-pacific-islanders-in-the-united-states/. 6 See infra “Overview of Select Hate Crime Legislation in the 117th Congress.” 7 See Laws and Policies: Federal Laws and Statutes, U.S. Dep’t of Justice (listing federal hate crime statutes), https://www.justice.gov/hatecrimes/laws-and-policies (last visited Mar. 15, 2022). Given the large number of federal criminal provisions, it is not possible to provide a comprehensive overview of generally-applicable federal laws that may apply to every example of bias-motivated conduct. See, e.g., Van Buren v. United States, 141 S. Ct. 1648, 1669 (2021) (Thomas, J. dissenting) (“The number of federal laws and regulations that trigger criminal penalties may be as high as several hundred thousand.”). It should be noted that the “vast majority” of hate crimes are prosecuted by state Congressional Research Service 1 Overview of Federal Hate Crime Laws     18 U.S.C. § 241: Prohibiting conspiracy to deprive another of federally-protected rights 18 U.S.C. § 242: Prohibiting deprivation of federally-protected rights under color of law 18 U.S.C. § 245: Prohibiting willfully injuring, intimidating, or interfering with another—or attempting to do so—by force or threat of force:  Because of the victim’s race, color, religion, or national origin and because of the victim’s participation in certain enumerated protected activities; or  Because the victim has been participating, without discrimination based on race, color, religion, or national origin, in certain protected activities, or in order to intimidate the victim or others from doing so; or  Because the victim has been aiding or encouraging others to participate, without discrimination based on race, color, religion or national origin, in certain enumerated protected activities 42 U.S.C. § 3631: Prohibiting willfully injuring, intimidating, or interfering with—or attempting to do so—by force or threat of force:  A victim’s housing rights because of race, color, religion, sex, disability, familial status, or national origin; or  Any person because of that person’s participation in protected housing rights, or because that person has afforded another person opportunity to participate in federal housing rights without discrimination based on race, color, religion, sex, disability, familial status, or national origin; or  Any citizen because that citizen has been aiding other persons in participating in protected housing rights without discrimination based on race, color, religion, sex, disability, familial status, or national origin, or to discourage others from doing so governments. ZACHARY J. WOLFE, HATE CRIMES LAW, § 2:2 (2019). Although beyond the scope of this Report, many states have enacted their own hate crime laws. See, e.g., CONN. GEN. STAT. § 53a-181j (2019) (“A person is guilty of intimidation based on bigotry or bias in the first degree when such person maliciously, and with specific intent to intimidate or harass another person because of the actual or perceived race, religion, ethnicity, disability, sex, sexual orientation or gender identity or expression of such other person, causes physical injury to such other person or to a third person.”). For a survey of state laws governing hate crimes, see, e.g., Laws and Policies: State Laws, Codes, and Statutes, U.S. Dep’t of Justice, https://www.justice.gov/hatecrimes/laws-and-policies (last visited Mar. 15, 2022). State governments may also elect to prosecute bias-motivated conduct under generally-applicable state criminal laws, such as those prohibiting murder. See, e.g., MD. CODE ANN., CRIM. LAW § 2-201 (defining murder in the first degree and setting forth penalty for violations). Such statutes have been used by state or local prosecutors to charge, for example, the killing of a Black man by a White man where prosecutors argued that the defendant acted out of racial bias against the victim. Press Release, Prince George’s Cty. State’s Atty’s Office, Sean Urbanski Found Guilty of First Degree Murder for Killing Lt. Richard Collins, III (Dec. 18, 2019), https://www.princegeorgescountymd.gov/CivicAlerts.aspx?AID=1574; see also Brakkton Booker, White Man Gets Life in Prison for Killing Black Army 1st Lt. Richard Collins III, NPR (Jan. 15, 2021) (detailing how state prosecutors believed defendant committed a hate crime, but proceeded with murder prosecution after judge rejected hate crime charge), https://www.npr.org/2021/01/15/957233388/white-man-gets-life-in-prison-for-killing-of-black-army-1st-ltrichard-collins-i. Congressional Research Service 2 Overview of Federal Hate Crime Laws   18 U.S.C. § 247:  Prohibiting intentional damage to religious real property because of the religious character of that property (assuming it affects interstate commerce); or because of the race, color, or ethnic characteristics of any individual associated with that religious property;  Prohibiting intentional obstruction of free exercise of religious beliefs by force or threatened force, affecting interstate commerce; 18 U.S.C. § 249: Prohibiting willful bodily injury to another:  Because of actual or perceived race, color, religion, or national origin; or  Because of actual or perceived religion, national origin, gender, sexual orientation, gender identity, or disability, and where it is established that there is an interest implicating interstate commerce Although all of these statutes have been used to prosecute hate crimes, not all of them are confined to that context. Some of these laws require that a defendant commit the prohibited conduct because of a specific characteristic—such as the race of a person.8 In contrast, other statutes are more broadly applicable and impose criminal penalties for the deprivation of civil rights regardless of whether the defendant acts because of a specific characteristic of a person.9 Still other statutes listed above may be characterized as hybrids—that is, they contain some provisions that require proof of a particular bias on the part of the defendant and provisions that protect civil rights regardless of a defendant’s particular motivations.10 Given the relevance of all of the statutes listed above to prosecuting bias-motivated crimes, this Report uses the phrases “federal hate crime statutes” and “federal hate crime laws” to refer to all of the statutes listed above, regardless of how they may otherwise be classified. If a federal prosecutor elects not to charge a defendant under a federal hate crime statute, a defendant’s bias-motivated conduct may still be relevant at sentencing. In particular, the United States Sentencing Guidelines (the Guidelines) include an enhancement advising federal courts to impose a lengthier sentence where the fact finder has concluded that the defendant acted because of certain biases against the victim.11 This Report begins with an overview of concepts key to understanding the applicability and scope of federal hate crime laws, and what it means for conduct to occur “because of” a factor such as race, religion, gender, or other characteristics of a victim or person. It then examines the substantive provisions of the federal hate crime statutes listed above, and summarizes statutorily authorized penalties and the hate crime enhancement contained in the Guidelines. The Report concludes by evaluating various sources of congressional authority to legislate in the hate crime arena and discusses hate crime legislation introduced in the 117th Congress.12 8 E.g., 18 U.S.C. § 249. 9 E.g., id. § 241. 10 E.g., id. § 245. 11 See infra “Sentencing Enhancements for Biased Motives.” 12 This Report does not discuss matters of policy with respect to hate crimes, as these topics are the subject of other CRS products. See generally James, supra note 4; CRS In Focus IF11312, Department of Justice’s Role in Investigating and Prosecuting Hate Crimes, by Nathan James. Similarly, other CRS products discuss a number of Constitutional provisions that may restrict Congress’s ability to legislate in the hate crime area—but which are largely Congressional Research Service 3 Overview of Federal Hate Crime Laws Federal Hate Crime Statutes As described above, federal prosecutors may charge a defendant with bias-motivated conduct under a variety of federal hate crime statutes. This section summarizes two key concepts relevant to these statutes: (1) what it means for conduct to occur “because of” a specific characteristic— such as race, religion, gender, or national origin—of the victim or another person; and (2) the legal meanings of some characteristics protected by various hate crime statutes. The section also details the background, elements, and penalties of federal hate crime laws. Key Concepts in Federal Hate Crime Statutes Conduct Occurring “Because Of” A number of the federal hate crime statutes discussed in this section apply only when the defendant acted because of certain factors.13 For example, 18 U.S.C. § 249(a)(1) requires that a defendant willfully caused bodily injury to a victim (or attempted to do so) through the use of a dangerous weapon because of the “actual or perceived race, color, religion, or national origin” of any person.14 18 U.S.C. § 245(b)(2) applies only if the defendant injured, intimidated, or interfered with a victim (by actual, attempted, or threatened force) because of the victim’s race, color, religion, or national origin and because the victim was participating in an enumerated protected right.15 Other federal hate crime statutes are worded similarly.16 Given that these statutes require prosecutors to establish that the defendant engaged in prohibited conduct because of a specific characteristic, the meaning of “because of” is crucial. The exact definition of “because of” in the hate crime context is unresolved.17 A 2014 Supreme Court case—Burrage v. United States—does provide broad guidance on the meaning of the beyond the scope of this Report—such as the Equal Protection Clause, and the First Amendment and its protection of speech and prohibition against the establishment of religion. See generally CRS Legal Sidebar LSB10524, Racial Profiling: Constitutional and Statutory Considerations for Congress, by April J. Anderson; CRS Report R46534, The Civil Rights Act of 1964: An Overview, by Christine J. Back; CRS Report R45481, “Affirmative Action” and Equal Protection in Higher Education, by Christine J. Back; CRS Report R45650, Free Speech and the Regulation of Social Media Content, by Valerie C. Brannon; CRS In Focus IF11072, The First Amendment: Categories of Speech, by Victoria L. Killion; CRS Legal Sidebar LSB10315, No More Lemon Law? Supreme Court Rethinks Religious Establishment Analysis, by Valerie C. Brannon; CRS Legal Sidebar LSB10259, Supreme Court May Reconsider Establishment Clause Jurisprudence in Challenge to Cross Display: Part One, by Valerie C. Brannon. 13 See infra “Conduct Occurring Because of Specific Characteristics.” 14 18 U.S.C. § 249(a)(1) (criminalizing “willfully caus[ing] bodily injury to any person or, through the use of fire, a firearm, a dangerous weapon, or an explosive or incendiary device, attempt[ing] to cause bodily injury to any person, because of the actual or perceived race, color, religion, or national origin of any person”). 15 Id. § 245(b)(2) (criminalizing “willfully injur[ing], intimidat[ing] or interfer[ing] with, or attempt[ing] to injure, intimidate or interfere with” any person “because of his race, color, religion or national origin” and because of his participation in, or enjoyment of, certain federally protected rights). 16 E.g., id. §§ 247(a)(1), 249; 42 U.S.C. § 3631(a). 17 Compare e.g., United States v. Maybee, 687 F.3d 1026, 1032 (8th Cir. 2012) (requiring only that race or national origin was a substantial motivating factor in attack under § 249), with, e.g., United States v. Miller, 767 F.3d 585, 593 (6th Cir. 2014) (holding that “[t]he ‘because of’ element of a prosecution under the Hate Crimes Act [§ 249] requires the government to establish but-for causation”). Congressional Research Service 4 Overview of Federal Hate Crime Laws phrase in the criminal law context.18 In Burrage, the Court analyzed a provision of the Controlled Substances Act imposing a “20-year mandatory minimum sentence on a defendant who unlawfully distributes” a prohibited drug19 when “death or serious bodily injury results from the use of such substance.”20 The question facing the Court was whether the mandatory minimum sentence should apply to a defendant who sold heroin to an individual, and the heroin contributed (along with other drugs not supplied by the defendant) to that individual’s subsequent death.21 Thus, the issue in Burrage was one of causation, which is the extent to which something (in this case, the use of heroin supplied by the defendant) produces an effect or outcome (i.e., death).22 To determine whether the use of heroin was a sufficient cause of death to warrant application of the mandatory minimum sentence, the Court in Burrage looked to the language of the relevant statute and the degree of causality required by the inclusion of the phrase “results from.”23 In particular, the Court considered the ordinary meaning of “results from,” explaining that “[a] thing ‘results’ when it ‘[a]rise[s] as an effect, issue, or outcome from some action, process or design,’” and concluding that “results from” imposes a “requirement of actual causality.”24 The Court also drew on the Model Penal Code approach,25 which specifies that conduct causes a result if “it is an antecedent but for which the result in question would not have occurred.”26 Based on this analysis, the Court in Burrage concluded that the use of the phrase “results from” in a statute requires, at a minimum, but-for causation, unless there is “textual or contextual indication to the contrary.”27 In general, but-for causation means that B would not have occurred if not for A.28 As the Supreme Court explained through analogy in Burrage: if a baseball team wins a game 1 to 0 through a home run, the home run is a but-for cause of its victory.29 In other words, but for the home run, the team would not have won.30 Furthermore, a factor can be a butfor cause, even if other factors combined to produce the relevant result, so long as the relevant factor was necessary to that outcome.31 As the Court explained continuing its use of the baseball analogy, “[i]t is beside the point that the victory also resulted from a host of other necessary 18 571 U.S. 204 (2014). 19 Id. at 206. 20 21 U.S.C. § 841(a)(1), (b)(1)(A)-(C) (emphasis added). 21 Burrage, 571 U.S. at 206-8. 22 Causation, BLACK’S LAW DICTIONARY (11th ed. 2019). 23 Burrage, 571 U.S. at 210-11. 24 Id. (quoting THE NEW SHORTER OXFORD ENGLISH DICTIONARY 2570 (1993)). 25 Id. at 211. 26 MODEL PENAL CODE § 2.03. 27 571 U.S. 204, 212 (2014); see also Bostock v. Clayton Cty., 140 S. Ct. 1731, 1738-39 (2020) (interpreting prohibition against workplace discrimination “because of” sex as requiring but-for causation). Although Burrage focused primarily on the meaning of “results from,” the court noted that the denotation of “because of” resembles “results from,” and noted that “because” generally requires proof of but-for causation. 571 U.S. at 212. 28 See LAFAVE, supra note 1, at § 6:4 (explaining that but-for causality “means that but for the conduct the result would not have occurred”). 29 Burrage, 571 U.S. at 211-12. 30 Id. 31 Id. at 212 (“[I]t makes little sense to say that an even resulted from or was the outcome of some earlier action if the action merely played a nonessential contributing role in producing the event.”). Congressional Research Service 5 Overview of Federal Hate Crime Laws causes, such as skillful pitching, the coach’s decision to put the leadoff batter in the lineup, and the league’s decision to schedule the game.”32 Although the Court in Burrage focused on the causation standard required by the inclusion of the phrase “results from” in the statute, the case could still influence how courts interpret “because of” in federal criminal laws (including hate crime statutes). This is because the Court observed that “results from” is a similar phrase to “because of,” and it interpreted the phrases in relation to each other.33 In particular, the Court looked to prior cases in which it had interpreted “because of” in other types of statutes—such as federal employment discrimination laws—to require but-for causation.34 Based in part on its analogy to the meaning of “because of,” the Court held that “a phrase such as ‘results from’ imposes a requirement of but-for causation.”35 A possible inference drawn from Burrage is that, if “results from” imposes a but-for causation requirement when used in a federal criminal law, and if “because of” is interchangeable with “results from,” then “because of” would also require but-for causation in the criminal law context (particularly since the Court has interpreted “because of” in that manner in other non-criminal contexts). Thus, Burrage arguably clarifies that “because of” typically requires but-for causation in the context of a federal criminal statute, including a hate crime law.36 At least one federal appellate court has held that, in light of Burrage, “because of” as used in 18 U.S.C. § 249 requires but-for causation.37 In United States v. Miller, the United States Court of Appeals for the Sixth Circuit38 observed that Burrage “made several points directly applicable” to its analysis of “because of” in § 249, including the point that, under Supreme Court precedent, “‘results from’ and ‘because of’ customarily mean the same thing and . . . both phrases require but-for causation.”39 Other lower courts have reached similar conclusions.40 For example, the United States District Court for the Eastern District of Tennessee applied Burrage to 18 U.S.C. § 32 Id. 33 Id. (explaining that “courts regularly read phrases like ‘results from’ to require but-for causality” and using “because of” and “based on” as examples). 34 Id. at 212-13. 35 Id. at 214. 36 See id. at 216 (explaining that in criminal context, the Court “cannot give the text a meaning that is different from its ordinary, accepted meaning, and that disfavors the defendant”). 37 See United States v. Miller, 767 F.3d 585, 593 (6th Cir. 2014) (applying Burrage to 18 U.S.C. § 249 and holding that “[t]he ‘because of’ element of a prosecution under the Hate Crimes Act requires the government to establish but-for causation”). 38 This Report references decisions by federal appellate courts of various regional circuits. For purposes of brevity, references to a particular circuit in the body of this Report (e.g., the Sixth Circuit) refer to the U.S. Court of Appeals for that particular circuit (e.g., the U.S. Court of Appeals for the Sixth Circuit). 39 Miller, 767 F.3d at 593. 40 See United States v. Metcalf, No. 15-CR-1032-LRR, 2016 WL 1599485, at *3 (N.D. Iowa Apr. 20, 2016)) (citing Miller and Burrage and concluding that “[t]he ‘because of’ element of § 249(a)(1) requires proof that the victim’s actual or perceived race was the but-for cause of the defendant’s willful assault of the victim.”), aff'd, 881 F.3d 641 (8th Cir. 2018). Another federal appellate court interpreted “because of” in the context of 42 U.S.C. § 3631(a) to require but-for causation, although it did not cite to Burrage in its opinion. United States v. Whitt, 752 F. App’x 300, 307 (6th Cir. 2018). Congressional Research Service 6 Overview of Federal Hate Crime Laws 247 and determined that the use of “because of” in that statute “requires a showing of but-for causation as to [d]efendant’s motivation.”41 Despite the reasoning embodied in Miller and similar cases, it is at least possible that a federal court might interpret ‘because of” as used in hate crime statutes in a manner that does not implicate Burrage. In United States v. Rodriguez,42 the Ninth Circuit analyzed 18 U.S.C. § 1959, which prohibits violent crimes committed, among other things, “for the purpose of gaining entrance to or maintaining or increasing position in” a criminal racketeering enterprise.43 The defendant in Rodriguez argued that, pursuant to Burrage, the statute’s use of the phrase “for the purpose of” required proof that the defendant’s position in the criminal racketeering enterprise was a but-for cause of the violent crime.44 The Ninth Circuit disagreed,45 distinguishing the statute at issue in Rodriguez from the mandatory minimum sentence provision under consideration in Burrage.46 The language in the statute considered in Burrage, the Ninth Circuit observed, concerned causation.47 In contrast, the court determined that the statutory language at issue in Rodriguez concerned the defendant’s motive48—that is, the defendant’s reason for acting.49 Notably, before Burrage, at least two federal appellate courts had interpreted “because of” in federal hate crime statutes to relate to a defendant’s motive.50 For example, the Eighth Circuit concluded that in order for a defendant’s conduct to be “because of” the victim’s “race, color, religion, or national origin” for the purposes of § 245, the attributes and activity must have been a substantial motivating factor for the defendant’s conduct.51 In order to apply a standard other than but-for causation after Burrage, federal courts potentially would need to similarly interpret “because of” as referring to motive in the context of federal hate crime statutes, as opposed to causation.52 41 United States v. Doggart, No. 1:15-CR-39-CLC, 2016 WL 6537675, at *1 (E.D. Tenn. Nov. 3, 2016). 42 971 F.3d 1005 (9th Cir. 2020). 43 18 U.S.C. § 1959; see Rodriguez, 971 F.3d at 1009. 44 Rodriguez, 971 F.3d at 1010. 45 Id. at 1009. 46 Id. at 1010. 47 Id. 48 Id. 49 See Motive, BLACK’S LAW DICTIONARY (11th ed. 2019) (defining “motive” as “[s]omething, esp. willful desire, that leads one to act”). 50 See, e.g., United States v. Maybee, 687 F.3d 1026, 1032 (8th Cir. 2012) (requiring only that race or national origin was a substantial motivating factor in attack under § 249); United States v. McGee, 173 F.3d 952, 957 (6th Cir. 1999) (interpreting causation under § 245 to require that “racial animus is a substantial reason for a defendant's conduct”); United States v. Bledsoe, 728 F.2d 1094, 1098 (8th Cir. 1984) (affirming trial court jury instructions that clearly implied that under § 245, the victim’s race must be a substantial motivating factor for the defendant’s conduct). 51 See Maybee, 687 F.3d at 1032; accord McGee, 173 F.3d at 957. 52 Subsequent to Burrage, it does not appear that any federal courts have interpreted “because of” in a federal hate crime statute to mean anything other than but-for causation. For example, as of March 30, 2022, a search of the Westlaw database for reported federal cases citing to 18 U.S.C. § 245 yielded 15 results that included the phrase “because of” and that were issued subsequent to Burrage (that is, after April 23, 2014). Those cases either were false positives (for example, non-criminal cases), or did not expressly interpret “because of” at all, or interpreted it to mean “but-for causation.” Identical searches for the other federal hate crime statutes that use the phrase “because of” (18 U.S.C. §§ 247, 249; 42 U.S.C. § 3631) also yielded no cases interpreting “because of” to mean something other than but-for causation subsequent to Burrage. Congressional Research Service 7 Overview of Federal Hate Crime Laws Conduct Occurring Because of Specific Characteristics A number of federal hate crime provisions apply to conduct only when committed because of specific characteristics such as race, religion, gender, or national origin.53 Often, the relevant characteristic must be possessed by the victim.54 For example, 18 U.S.C. § 245(b)(2) applies only where the victim is targeted because of “his race, color, religion or national origin”55 In practice, many hate crime prosecutions involve instances where a defendant targeted the victim because of a characteristic—such as race—possessed by the victim.56 However, some federal hate crime provisions are worded more broadly in a manner that encompasses instances where an individual’s conduct occurs because of specific characteristics of any person, not just the victim.57 This could occur, for instance, where a defendant is motivated by the race or other protected characteristic of one person, but actually attacks another person who does not possess the relevant characteristic—such as a bystander58 or an acquaintance.59 Still other hate crime statutes apply where the relevant characteristics belong to property—as in the case of vandalism of religious real property.60 53 See infra Table 1. 54 Id. 55 18 U.S.C. § 245(b)(2) (emphasis added). 56 See, e.g., Press Release, U.S. Dep’t of Justice, Washington State Man Pleads Guilty to Federal Hate Crime in Attack on Sikh Man (June 27, 2013), https://www.justice.gov/opa/pr/washington-state-man-pleads-guilty-federal-hate-crimeattack-sikh-man; Press Release, U.S. Dep’t of Justice, Colorado Man Sentenced to 16 Years in Federal Prison for Unprovoked Stabbing of Black Man (Sep. 9, 2021), https://www.justice.gov/opa/pr/colorado-man-sentenced-16-yearsfederal-prison-unprovoked-stabbing-black-man; Press Release, U.S. Dep’t of Justice, Arkansas Jury Finds Man Guilty of Federal Hate Crime Related to the Assault of Five Hispanic Men (May 19, 2011), https://www.justice.gov/opa/pr/arkansas-jury-finds-man-guilty-federal-hate-crime-related-assault-five-hispanic-men; Press Release, U.S. Dep’t of Justice, Two Atlanta Men Plead Guilty to Federal Hate Crime Against Gay Man (Apr. 18, 2013), https://www.justice.gov/opa/pr/two-atlanta-men-plead-guilty-federal-hate-crime-against-gay-man. 57 See, e.g., 18 U.S.C. § 249(a)(1) (prohibiting conduct that occurs because of the actual or perceived “race, color, religion, or national origin of any person” (emphasis added)). As discussed below, some federal hate crime provisions are specifically aimed at protecting individuals who are helping others participate in federal activities without discrimination based on a specific characteristic. See infra “Elements of a § 245(b)(4) Violation”; see also Press Release, U.S. Dep’t of Justice, Alabama Man Pleads Guilty to Threatening African-American Man and a Restaurant Manager (Sep. 11, 2014), https://www.justice.gov/opa/pr/alabama-man-pleads-guilty-threatening-african-americanman-and-restaurant-manager (describing § 245(b)(4) prosecution of defendant for threats made to a restaurant employee who ordered defendant to leave restaurant after he made racially-motivated threats to a Black patron who was at the restaurant with a White woman); Indictment, United States v. Higgins, No. 2:14-cr-00143 (N.D. Ala. 2014). 58 For example, in one prosecution, DOJ pursued federal hate crime charges against defendants who “punched and kicked a Black man” and who also assaulted “two other men who intervened to protect the victim from their attack.” Press Release, U.S. Dep’t of Justice, Four Men Indicted for Hate Crimes and False Statements After Racially Motivated Assault in Lynnwood, Washington (Dec. 18, 2020), https://www.justice.gov/opa/pr/four-men-indicted-hatecrimes-and-false-statements-after-racially-motivated-assault-lynnwood. In the resulting indictment, the defendants were charged with three hate crime counts: one for each victim. Indictment, United States v. Desimas et al., No. CR20222-RAJ (W.D. Wash 2020). Notably, the indictment charged that the two intervening men who were assaulted were not attacked because of their race, but rather because of the initial victim’s race. Id. 59 See, e.g., Press Release, U.S. Dep’t of Justice, Third Defendant Pleads Guilty to Racially-Motivated Assault on White Man and African-American Woman in California (Mar. 11, 2014), https://www.justice.gov/opa/pr/thirddefendant-pleads-guilty-racially-motivated-assault-white-man-and-african-american-woman (describing federal hate crime prosecution involving attack on a Black woman and the White man with whom she was with). 60 See infra “Elements of a § 247(a)(1) Violation for Damage to Religious Property.” Congressional Research Service 8 Overview of Federal Hate Crime Laws Table 1 provides an overview of federal hate crime statutes conditioned on the underlying conduct occurring because of specific characteristics, and additional information about these characteristics is detailed below. Table 1. Select Federal Hate Crime Provisions Limited to Conduct Occurring Because Of Specific Characteristics Statutory Provision Prohibited Conduct* Specific Characteristic(s) 18 U.S.C. § 245(b)(2) Willful intimidation of, injury to, or interference with an individual because of specific characteristics and victim’s participation in enumerated protected activities “Race, color, religion or national origin” of the victim” 42 U.S.C. § 3631(a) Willful interference by actual or threatened force with victim because of specific characteristics and victim’s enjoyment of housing rights “Race, color, religion, sex, handicap, familial status, or national origin” of the victim” 18 U.S.C. § 247(a)(1) Intentional damage to religious real property in or affecting interstate commerce “Religious character of that property” 18 U.S.C. § 247(c) Intentional damage to religious real property motivated by specific characteristics against individual associated with that property “Race, color, or ethnic characteristics of any individual associated with that religious property” 18 U.S.C. § 249(a)(1) Willful bodily injury to another, or attempted injury to another through dangerous weapon, motivated by specific characteristics “Actual or perceived race, color, religion, or national origin of any person” 18 U.S.C. § 249(a)(2) Willful bodily injury to another, or attempted injury to another through dangerous weapon, motivated by specific characteristics “Actual or perceived religion, national origin, gender, sexual orientation, gender identity, or disability of any person” Source: 18 U.S.C. §§ 245(b)(2), 247(a)(1), 247(c), 249(a)(1), 249(a)(2); 42 U.S.C. § 3631(a). Notes: * Brief descriptions of prohibited conduct are included in this table for convenience, but more detailed descriptions are provided below. See generally “Prohibited Conduct under Federal Hate Crime Statutes.” Race, Color, National Origin As detailed in Table 1, a number of federal hate crime statutes prohibit conduct when it is motivated by race, color, or national origin. None of these statutes define race, color, or national origin,61 and none contain language limiting their protections to particular races, colors, or national origins.62 As one court explained in the context of § 245(b)(2), Congress did not intend to limit the “application [of the statute] exclusively to vindicate the rights of blacks,” but rather to 61 Id. §§ 245(b)(2), 247(c), 249(a)(1); 42 U.S.C. § 3631(a). 62 18 U.S.C. §§ 245(b)(2), 247(c), 249(a)(1); 42 U.S.C. § 3631(a). Congressional Research Service 9 Overview of Federal Hate Crime Laws protect any person targeted “because of his race, color, religion or national origin.”63 A hate crime statute that protects individuals of some races, colors, or national origins, but not others, would almost certainly violate Constitutional provisions mandating equal protection under the law.64 In practice, federal hate crime laws prohibiting conduct committed because of the race, color, and national origin of a victim have been used to prosecute defendants who have acted against individuals of various backgrounds including, among others,65 Hispanics and Latinos/Latinas,66 Blacks,67 Native Americans,68 Asian Americans,69 and individuals of National Origin outside the United States.70 63 United States v. Ebens, 800 F.2d 1422, 1429 (6th Cir. 1986) (quoting 18 U.S.C. § 245(b)(2)), abrogated on other grounds by Huddleston v. United States, 485 U.S. 681 (1988). 64 The Equal Protection Clause of the Fourteenth Amendment bars states from depriving anyone within their jurisdiction of the equal protection of the law. U.S. CONST. amend. XIV, § 1. Although that provision expressly applies only to the states, id., the Supreme Court has held that the due process clause of the Fifth Amendment requires identical “[e]qual protection analysis . . . as that under the Fourteenth Amendment” with respect to the federal government. Buckley v. Valeo, 424 U.S. 1, 93 (1976); see also Bolling v. Sharpe, 347 U.S. 497, 498–99 (1954), supplemented sub nom. Brown v. Bd. of Educ., 349 U.S. 294 (1955) (discussing interaction between the principles of due process and equal protection). In discussing equal protection requirements, the Supreme Court has expressed extreme skepticism of laws that draw distinctions “according to race” or ancestry. E.g., Loving v. Virginia, 388 U.S. 1, 11 (1967) (explaining that at a minimum, “the Equal Protection Clause demands that racial classifications, especially suspect in criminal statutes, be subjected to the ‘most rigid scrutiny,’” and, “if they are ever to be upheld, they must be shown to be necessary to the accomplishment of some permissible state objective, independent of the racial discrimination which it was the object of the Fourteenth Amendment to eliminate.”) (quoting Korematsu v. United States, 323 U.S. 214, 216 (1944)); see also Bolling, 347 U.S. at 498-99 (“Classifications based solely upon race must be scrutinized with particular care, since they are contrary to our traditions and hence constitutionally suspect.”). For a discussion of racebased classifications and equal protection, see generally Cong. Rsch. Serv., Amdt14.S1.4.1.1 Race-Based Classifications: Overview, CONSTITUTION ANNOTATED, https://constitution.congress.gov/browse/essay/amdt14-S1-4-1-1/ALDE_00000816/ (last visited Mar. 29, 2022). 65 Press Release, U.S. Dep’t of Justice, Washington State Man Pleads Guilty to Federal Hate Crime in Attack on Sikh Man (June 27, 2013), https://www.justice.gov/opa/pr/washington-state-man-pleads-guilty-federal-hate-crime-attacksikh-man (summarizing federal hate crime prosecution of defendant who assaulted a Sikh man from India “based upon the victim’s actual and perceived race, color and national origin, which included Middle Eastern and Arab descent”). 66 See United States v. Piekarsky, 687 F.3d 134, 136 (3d Cir. 2012) (applying § 3631 where victims were Hispanic); United States v. Maybee, 687 F.3d 1026, 1029 (8th Cir. 2012) (affirming § 249(a)(1) conviction where defendant acted out of bias against victims he perceived as being of Mexican ancestry). 67 See United States v. Metcalf, 881 F.3d 641, 643 (8th Cir.), cert. denied, 139 S. Ct. 412 (2018) (describing § 249(a)(1) prosecution where victim was Black); United States v. Cannon, 750 F.3d 492, 497 (5th Cir. 2014) (affirming § 249 conviction of defendant who attacked Black man); United States v. Mungia, 114 F.3d 1181, 1181 (5th Cir. 1997) (per curiam) (affirming § 245(b)(2)(B) conviction of defendants convicted of “shooting three African-American men”); United States v. Rogers, 45 F.3d 1141, 1143 (7th Cir. 1995) (describing conviction of defendant under § 3631(a) stemming from his racially-motivated home invasion of his “neighbors, a black couple and their infant child”); United States v. Henery, 60 F. Supp. 3d 1126, 1127 (D. Idaho 2014) (denying motion to dismiss § 249(a)(1) indictment of defendant who physically attacked Black man); Press Release, U.S. Dep’t of Justice, New York Man Pleads Guilty to Federal Hate Crime Conspiracy (Jan. 26, 2009), https://www.justice.gov/opa/pr/new-york-man-pleads-guilty-federalhate-crime-conspiracy (describing guilty plea of defendant for conspiring to “assault African-American residents in Staten Island, N.Y.). 68 See United States v. Hatch, 722 F.3d 1193, 1200, 1209 (10th Cir. 2013) (affirming § 249(a)(1) conviction of defendant who “kidnapped a disabled Navajo man and branded a swastika into his arm”). 69 See United States Ebens v., 800 F.2d 1422, 1429 (6th Cir. 1986) (applying 18 U.S.C. § 245(b)(2) where victim was Chinese-American). 70 See supra note 65; Information, United States v. Whedbee, No. JBK-12-0326, 2012 WL 13088980 (D. Md. June 11, Congressional Research Service 10 Overview of Federal Hate Crime Laws Religion Several federal hate crime statutes criminalize conduct when it occurs because of the victim’s religion or the religious character of property, as Table 1 illustrates. As with race, color, and national origin, these statutes provide no textual guidance on what “religion” entails.71 The statutes do not single out any particular religions for protections,72 as a hate crime statute that protects some religions but not others may raise significant constitutional questions.73 In practice, federal hate crime laws have been used to prosecute defendants who engage in prohibited conduct against individuals of a variety religious backgrounds, including members of the Jewish,74 Islamic,75 and Amish76 faiths. Gender/Sex Two federal hate crime provisions contained in Table 1—42 U.S.C. § 3631(a) and 18 U.S.C. § 249(a)(2)—make it a crime to engage in prohibited conduct because of, among other characteristics, the gender or sex of the victim. Neither statute defines these terms,77 and there is little if any published federal case law examining the contours of these terms in the context of 2012) (applying § 3631 where the victims were a family from Africa). 71 18 U.S.C. §§ 245(b)(2), 247(a)(1), 249(a)(1), 249(a)(2); 42 U.S.C. § 3631(a). 72 Supra note 71. 73 See McCreary Cty., Ky. v. ACLU, 545 U.S. 844, 860 (2005) (explaining that when the government manifests “a purpose to favor one faith over another, or adherence to religion generally,” it contravenes the “value of official religious neutrality” under the Establishment Clause of the First Amendment); Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah, 508 U.S. 520, 540 (1993) (striking down local ordinance on the grounds that it discriminated against specific religion in violation of the First Amendment protection of free exercise of religion); see also generally Susan Gellman & Susan Looper-Friedman, Thou Shalt Use the Equal Protection Clause for Religion Cases (Not Just the Establishment Clause), 10 U. PA. J. CONST. L. 665 (2008) (evaluating the possible role of the Equal Protection Clause in the context of laws differentiating between religions). For discussion of First Amendment issues that might be relevant were a hate crime statute to give preference to a particular religion, see generally Cong. Rsch. Serv., First Amendment: Amdt1.1 The Religion Clauses, CONSTITUTION ANNOTATED, https://constitution.congress.gov/browse/amendment-1/ (last visited Mar. 29, 2022). 74 See, e.g., United States v. Sanders, 41 F.3d 480, 483 (9th Cir. 1994) (applying 42 U.S.C. § 3631 where victims were members of Jewish faith); United States v. Lane, 883 F.2d 1484, 1497 (10th Cir. 1989) (applying 18 U.S.C. § 245(b)(2) where victim was Jewish). 75 See United States v. Perez, No. 18-40707, 2020 WL 7786934, at *1 (5th Cir. Dec. 30, 2020) (affirming conviction of defendant under § 247(a)(1) for destruction of religious real property in connection with his arson of an Islamic Center); Press Release, U.S. Dep’t of Justice, Three Southwest Kansas Men Convicted of Plotting to Bomb Somali Immigrants in Garden City (Apr. 18, 2018), https://www.justice.gov/opa/pr/three-southwest-kansas-men-convictedplotting-bomb-somali-immigrants-garden-city (describing federal hate crime prosecution where victims Somali/Muslim immigrants); Press Release, U.S. Dep’t of Justice, Tampa Man Pleads Guilty to Hate Crime for Threatening to Burn Down a Home Being Purchased by Muslim Family (Feb. 27, 2018), https://www.justice.gov/opa/pr/tampa-man-pleadsguilty-hate-crime-threatening-burn-down-home-being-purchased-muslim-family (describing § 3631 prosecution where victims were Muslim); Press Release, U.S. Dep’t of Justice, Former TSA Employee Pleads Guilty to Federal Hate Crime for Assaulting Elderly Somali Man (Aug. 10, 2011), https://www.justice.gov/opa/pr/former-tsa-employeepleads-guilty-federal-hate-crime-assaulting-elderly-somali-man (describing § 249 prosecution where victim was Muslim and Somali). 76 United States v. Mullet, 868 F. Supp. 2d 618, 624 (N.D. Ohio 2012) (applying § 249(a)(2) to intra-religion violence where victims were Amish). 77 18 U.S.C. § 249; 42 U.S.C. § 3631. Congressional Research Service 11 Overview of Federal Hate Crime Laws either statute.78 One unresolved question in examining 42 U.S.C. § 3631(a) is whether bias based on sex or also includes bias based on sexual orientation.79 Case law concerning civil antidiscrimination laws may be of relevance in resolving that issue—particularly the 2020 Supreme Court opinion Bostock v. Clayton County.80 In Bostock, the Court concluded that a prohibition against employment discrimination because of sex (contained in Title VII of the Civil Rights Act of 1964) also bars employment discrimination based on an “individual’s homosexuality or transgender status.”81 In reaching that conclusion the Court reasoned that “it is impossible to discriminate against a person for being homosexual or transgender without discriminating against that individual based on sex.”82 The Supreme Court declined to address whether its reasoning would apply outside of the Title VII context,83 and no federal courts have addressed the applicability of Bostock to 42 U.S.C. § 3631(a).84 Disability As Table 1 illustrates, two federal hate crime provisions prohibit underlying conduct when committed because of—among other characteristics—disability or “handicap.” Section 245(b)(2) uses the term “handicap,” which it defines by reference to another statute as “a physical or mental impairment which substantially limits one or more of such person’s major life activities . . . a record of having such an impairment, or . . . being regarded as having such an impairment.”85 Section 249(a)(2) has been used to prosecute bias-motivated conduct targeting individuals with mental and physical disabilities.86 78 As of March 30, 2022 running a Westlaw search of cases citing § 249 yields 263 federal cases. A search within those results for cases using the word “gender” within the same paragraph drops that number to 34 federal court cases. Of those, 18 include “United States” in the name, as would be expected in cases arising from federal criminal prosecutions. None of those cases interpreted the statutory meaning of gender in the context of § 249. As of March 30, 2022, running a Westlaw search of cases citing § 3631 yields 779 federal cases. Nevertheless, a number of targeted searches designed to yield cases interpreting the statutory meaning of “sex” in the context of § 3631 yielded no relevant results. Specifically, these queries included separately searching within all federal cases citing § 3631 for the following search terms within the same paragraph as a citation to § 3631: (sex /p gender); (sex /p identity); (sex /p male); (sex /p female); (sex /p defin!); (sex /p orientation). 79 Unlike § 3631, § 249(a)(2) expressly includes sexual orientation and gender identity in its list of protected characteristics. 80 140 S. Ct. 1731 (2020). For a detailed examination of Bostock and its legal ramifications see generally CRS Legal Sidebar LSB10496, Supreme Court Rules Title VII Bars Discrimination Against Gay and Transgender Employees: Potential Implications, by Jared P. Cole. 81 Bostock, 140 S. Ct. at 1741. 82 Id. 83 Id. at 1753. 84 As of March 30, 2022 searching on Westlaw for the term “Bostock” within cases citing § 249 or § 3631 yields one result other than Bostock itself—but it is not a hate crime prosecution. But cf. People v. Rogers, 950 N.W.2d 48 (Mich. 2020) (remanding, in light of Bostock, a lower court opinion concluding that a state hate crime law prohibiting certain conduct committed because of gender bias excluded bias against transgender person). 85 42 U.S.C. §§ 3631, 3602(h). Courts have broadly interpreted this provision to protect, among others, “persons with AIDS, elderly residents of adult foster homes, developmentally disabled persons, the mentally ill, emotionally disturbed adolescents, . . . a tenant with multiple sclerosis,” and “an amputee.” WOLFE, supra note 7, § 5:5 (footnotes omitted). 86 United States v. Woodard, No. CR 13-25-5, 2017 WL 11463711, at *1 (E.D. Pa. Dec. 15, 2017); Press Release, U.S. Dep’t of Justice, Federal Charges Allege Captors Held Adults with Disabilities in Subhuman Conditions to Carry out Social Security Fraud (Jan. 23, 2013), https://www.justice.gov/opa/pr/federal-charges-allege-captors-held-adults- Congressional Research Service 12 Overview of Federal Hate Crime Laws Additional Protected Characteristics In addition to the protected characteristics discussed above—which recur in a number of statutes—the following characteristics are protected by a single statute:     Familial Status: included as a protected characteristic in 42 U.S.C. § 3631 (criminal interference with right to fair housing), which defines it as “one or more individuals (who have not attained the age of 18 years) being domiciled with . . . a parent or another person having legal custody of such individual or individuals.”87 Sexual Orientation: included as a protected characteristic in § 249(a)(2) (Hate Crimes Prevention Act), which does not define the term.88 Many of the § 249(a)(2) prosecutions undertaken to date for conduct that occurred because of a person’s sexual orientation have involved instances where the victims were gay men.89 Gender Identity: included in § 249(a)(2)’s list of protected characteristics, and defined by the statute as “actual or perceived gender-related characteristics.”90 Section 249(a)(2) prosecutions for conduct motivated by bias against gender identity have included that of a Mississippi man who assaulted and murdered a transgender woman.91 Ethnic Characteristics: listed as a protected characteristic in § 247(c) (raciallymotivated damage to religious property), but not defined by that statute.92 disabilities-subhuman-conditions-carry-out-social. 87 42 U.S.C. §§ 3602(k); 3631(a). 88 18 U.S.C. § 249(a)(2). 89 See Press Release, U.S. Dep’t of Justice, Third Texas Man Pleads Guilty to Hate Crime for Assault Based on Victim’s Sexual Orientation (Sep. 18, 2017), https://www.justice.gov/opa/pr/third-texas-man-pleads-guilty-hate-crimeassault-based-victim-s-sexual-orientation; Press Release, U.S. Dep’t of Justice, Idaho Man Sentenced For Federal Hate Crime Based on Victim’s Sexual Orientation (Apr. 27, 2017), https://www.justice.gov/opa/pr/idaho-man-sentencedfederal-hate-crime-based-victim-s-sexual-orientation; Press Release, U.S. Dep’t of Justice, Texas Man Charged with Hate Crime for Assault Based on Victim’s Sexual Orientation (Feb. 20, 2014), https://www.justice.gov/opa/pr/texasman-charged-hate-crime-assault-based-victim-s-sexual-orientation; Press Release, U.S. Dep’t of Just Portland, Ore. Couple Indicted on Charges Related to an Anti-gay Assault (June 27, 2013), https://www.justice.gov/opa/pr/portlandore-couple-indicted-charges-related-anti-gay-assault; Press Release, U.S. Dep’t of Justice, Two Atlanta Men Plead Guilty to Federal Hate Crime Against Gay Man (Apr. 18, 2013), https://www.justice.gov/opa/pr/two-atlanta-menplead-guilty-federal-hate-crime-against-gay-man; Press Release, U.S. Dep’t of Justice, Two Harlan County, Kentucky, Women Plead Guilty to Federal Hate Crime Against Individual Because of Sexual Orientation (Apr. 13, 2012), https://www.justice.gov/opa/pr/two-harlan-county-kentucky-women-plead-guilty-federal-hate-crime-againstindividual-because; but see Press Release, U.S. Dep’t of Justice, Charleston Man Indicted on Hate Crime Charge (Jun. 21, 2018), https://www.justice.gov/opa/pr/charleston-man-indicted-hate-crime-charge (describing indictment of defendant for attack on woman because of woman’s “actual and perceived sexual orientation”). 90 18 U.S.C. § 249(c). 91 Press Release, U.S. Dep’t of Justice, Mississippi Man Pleads Guilty to Hate Crime for Murdering Transgender Victim Because of Her Gender Identity (Dec. 21, 2016), https://www.justice.gov/opa/pr/mississippi-man-pleads-guiltyhate-crime-murdering-transgender-victim-because-her-gender. 92 18 U.S.C. § 247. Congressional Research Service 13 Overview of Federal Hate Crime Laws Prohibited Conduct under Federal Hate Crime Statutes Conspiracy Against Free Exercise or Enjoyment of Rights, 18 U.S.C. § 241 Section 241 of Title 18 of the United States Code contains a provision93 that makes it a crime for “two or more persons [to] conspire to injure, oppress, threaten, or intimidate any person in any State, Territory, Commonwealth, Possession, or District in the free exercise or enjoyment of any right or privilege secured to him by the Constitution or laws of the United States.”94 The statute, which dates to the Reconstruction Era,95 does not require that the defendant’s conduct be motivated by any particular bias towards the victim.96 Nevertheless, the law has been used to prosecute bias-motivated conduct97 since its enactment,98 particularly starting in the midtwentieth century.99 For example, the government has relied on § 241 to prosecute a variety of conspiratorial bias-motivated conduct including cross burnings,100 vandalism,101 acts of intimidation,102 assault,103 and murder.104 Prosecutors also used § 241 to charge “some of the most notorious civil rights crimes of the 1960s,”105 such as the murder of civil rights volunteer Viola 93 Section 241 also contains a provision that prohibits two or more persons “go[ing] in disguise on the highway, or on the premises of another” with the intent to “prevent or hinder” another’s free exercise of rights or privileges provided by the Constitution or the laws of the United States. 18 U.S.C. § 241. The provision, which is seldom-used, was “prompted by concern over the terrorism practiced by ‘nightriding’ Ku Klux Klansmen wearing the Klan regalia of white robe, hood, and mask during the post-Civil War period.” WOLFE, supra note 7, § 6:3. 94 18 U.S.C. § 241. 95 United States v. Price, 383 U.S. 787, 789 (1966). 96 18 U.S.C. § 241. 97 See Laws and Policies: Federal Laws and Statutes, U.S. Dep’t of Justice (listing § 241 among the federal hate crime laws enforced by the Department of Justice), https://www.justice.gov/hatecrimes/laws-and-policies (last visited Mar. 15, 2022). 98 For an extensive review of the legislative history of § 241, see, e.g., United States v. Williams, 341 U.S. 70, 83 (1951). 99 WOLFE, supra note 7, § 6:2. 100 United States v. Gresser, 935 F.2d 96, 98 (6th Cir. 1991); Press Release, U.S. Dep’t of Justice, South Carolina Man Pleads Guilty to Burning Crosses Intimidating Worshipers At An African-American Church (Jan. 4, 2000), https://www.justice.gov/archive/opa/pr/2001/January/004cr.htm. 101 Information, United States v. Calderhead, No. 1:12-00011, 2012 WL 12849111 (M.D. Tenn. Nov. 14, 2012); Press Release, U.S. Dep’t of Justice, Two Tennessee Men Plead Guilty to Conspiring to Violate Civil Rights of Africanamerican Residents (May 14, 2013), https://www.justice.gov/opa/pr/two-tennessee-men-plead-guilty-conspiringviolate-civil-rights-african-american-residents. 102 Information, United States v. Whedbee, No. JBK-12-0326, 2012 WL 13088980 (D. Md. June 11, 2012); Press Release, U.S. Dep’t of Justice, Two Women Plead Guilty in Maryland to Civil Rights Violations (June 26, 2012), https://www.justice.gov/opa/pr/two-women-plead-guilty-maryland-civil-rights-violations. 103 Indictment, United States v. Nicoletti, No. 09-CR-00002 (E.D.N.Y. 2009); Press Release, U.S. Dep’t of Justice, New York Man Pleads Guilty to Federal Hate Crime Conspiracy (Jan. 26, 2009), https://www.justice.gov/opa/pr/newyork-man-pleads-guilty-federal-hate-crime-conspiracy. 104 Plea Agreement, United States v. Cowart, No. 08-10119, 2010 WL 2768822 (W.D. Tenn. Mar. 29, 2010); Press Release, U.S. Dep’t of Justice, Tennessee Man Sentenced for Conspiring to Commit Murders of African-Americans (Oct. 22, 2010), https://www.justice.gov/opa/pr/tennessee-man-sentenced-conspiring-commit-murders-africanamericans. 105 WOLFE, supra note 7, § 6:2. Congressional Research Service 14 Overview of Federal Hate Crime Laws Liuzzo in March, 1965, following her participation106 in the Selma to Montgomery march led by Martin Luther King, Jr.107 Elements of a § 241 Violation To prove a § 241 violation, the government must establish four elements.108 First, the government must show an agreement between two or more people, which requires proof that at least two individuals came to a common understanding with a shared purpose.109 The agreement need not be formal110 and instead can be established by proof of a mere “tacit understanding.”111 Without an agreement, however, § 241 is inapplicable, and the statute does not reach the conduct of a person acting alone to interfere with rights.112 Second, the government must prove that the purpose of the agreement was to injure, threaten, oppress, or intimidate, which only requires proof that the defendant specifically intended to injure, threaten, oppress, or intimidate,113 not that the victim was actually injured, threatened, oppressed, or intimidated.114 A variety of conduct ranging from vandalism to murder may “injure, 106 Press Release, U.S. Dep’t of Justice, Civil Rights Are Everyone’s Responsibility (Apr. 24, 2015), https://www.justice.gov/usao-edmi/civil-rights-are-everyone-s-responsibility. 107 Martin Luther King, Jr. Research and Education Institute, Selma to Montgomery March, https://kinginstitute.stanford.edu/encyclopedia/selma-montgomery-march (last visited Mar. 15, 2022). In that case, the Fifth Circuit held that Liuzzo’s murder violated § 241, because her killers conspired to interfere with her participation in the march, which itself was related to securing the federal right “to register to vote in federal elections.” Wilkins v. United States, 376 F.2d 552, 561 (5th Cir. 1967). 108 United States v. Hayward, 764 F. Supp. 1305, 1307 (N.D. Ill. 1991) (explaining that a § 241 violation requires the government to establish that (1) “two or more parties entered into an agreement;” (2) “the purpose of their agreement was to injure, oppress, threaten or intimidate;” (3) “the agreement was intended to affect” any person in the United States; and (4) “the agreement was directed towards the free exercise or enjoyment of rights and privileges secured by the Constitution and federal law”). In addition, at least one court requires that the government establish a fifth element: an overt act. United States v. Guillette, 547 F.2d 743, 751 (2d Cir. 1976). An overt act is the performance of “[a]n outward, physical manifestation” of the conspiracy. Overt Act, BLACK’S LAW DICTIONARY (11th ed. 2019). However, other courts have rejected that requirement. See, e.g., United States v. Crochiere, 129 F.3d 233, 237 (1st Cir. 1997) (collecting cases opining on whether § 241 imposes an overt act requirement, and concluding that it does not); see also U.S. DEP’T OF JUSTICE, U.S. ATTORNEYS MANUAL 11 (1992), https://www.justice.gov/archive/usao/usam/1988/title8civilrightsdivision.pdf#page=55; WOLFE, supra note 7, § 6:3 (“The view imposing no overt act requirement is probably correct.”). 109 See United States v. Ellis, 595 F.2d 154, 160 (3d Cir. 1979) (discussing elements required to sufficiently prove § 241 violation). 110 See United States v. Redwine, 715 F.2d 315, 320 (7th Cir. 1983) (examining § 241 claim and concluding that to establish conspiracy, “[t]he government need not establish that there existed a formal agreement to conspire”); United States v. Lewis, 644 F. Supp. 1391, 1405 (W.D. Mich. 1986) (“To find the existence of the agreement requisite to a criminal conspiracy [under § 241], one need not find from the evidence that the alleged members entered into an express or formal agreement.”), aff'd sub nom. United States v. King, 840 F.2d 1276 (6th Cir. 1988). 111 Gresser, 935 F.2d at 101. 112 See 18 U.S.C. § 241 (requiring conspiracy between “two or more” individuals). 113 United States v. J.H.H., 22 F.3d 821, 828 (8th Cir. 1994). 114 See, e.g., United States v. Bradberry, 517 F.2d 498, 499 n.6 (7th Cir. 1975) (explaining that the conspiracy need not be successful for a defendant to have violated § 241). Congressional Research Service 15 Overview of Federal Hate Crime Laws threaten, oppress, or intimidate.”115 Subject to First Amendment limitations,116 threatening conduct such as cross-burning may also fit within this language and violate § 241.117 Third, the government must demonstrate that the agreement was intended to affect “any person in any State, Territory, Commonwealth, Possession, or District.”118 In establishing this element, the government need not prove that the defendant identified and intended harm to a specific victim or victims; rather, a § 241 violation can occur where the defendant interferes with the rights of “a broad class of potential victims.”119 As for the classes of victims encompassed by § 241, the statute includes not only citizens and residents of the United States, but also foreign visitors to the United States.120 115 See supra notes 100-104; see also Hayes v. United States, 464 F.2d 1252, 1254 (5th Cir. 1972) (affirming § 241 convictions of defendants who damaged unoccupied school buses with explosives in an attempt to derail busing and school integration); Catala Fonfrias v. United States, 951 F.2d 423, 424 (1st Cir. 1991) (affirming § 241 conviction of defendant for his involvement in conspiracy to interfere with civil rights that resulted in a murder). 116 “The First Amendment generally prevents government from proscribing speech” or “even expressive conduct,” because of “disapproval of the ideas expressed.” R.A.V. v. City of St. Paul, Minn., 505 U.S. 377, 382 (1992). However, the Supreme Court “has permitted restrictions upon the content of speech in a few limited areas, which are ‘of such slight social value as a step to truth that any benefit that may be derived from them is clearly outweighed by the social interest in order and morality.’” Id. at 382–83 (quoting Chaplinsky v. New Hampshire, 315 U.S. 568, 572 (1942)). For example, in Virginia v. Black the Supreme Court examined a state cross-burning statute and observed that the First Amendment permits prohibitions on “true threats,” which are “statements where the speaker means to communicate a serious expression of an intent to commit an act of unlawful violence to a particular individual or group of individuals.” 538 U.S. 343, 359 (2003). Subsequent to Black, at least one federal appellate court has interpreted the “threaten” language in § 241 to require proof of “threat of force,” and in doing so concluded that jury instructions to the contrary were flawed. United States v. Magleby, 420 F.3d 1136, 1143 (10th Cir. 2005). Although the court reached that conclusion based on pre-Black circuit precedent (due to the posture of the appeal), it summarized Black to provide “the underlying First Amendment law” with respect to § 241. Id. at 1139. For additional analysis of the types of First Amendment issues implicated by the prosecution of threats, see generally CRS In Focus IF11072, The First Amendment: Categories of Speech, by Victoria L. Killion; Cong. Rsch. Serv., Amdt1.2.3.2.1 Fighting Words, Hostile Audiences and True Threats: Overview, CONSTITUTION ANNOTATED, https://constitution.congress.gov/browse/essay/amdt1-2-3-2-1/ALDE_00000742/ (last visited Mar. 30, 2022). 117 See Magleby, 420 F.3d at 1138-39 (affirming denial of habeas petition challenging § 241 conviction related to a cross-burning conspiracy); United States v. Stewart, 65 F.3d 918, 921-22 (11th Cir. 1995) (affirming § 241 conviction of defendants who burned cross outside the home of Black family); but see United States v. Lee, 6 F.3d 1297, 1300, 1302 (8th Cir. 1993) (Gibson, J., concurring) (per curiam) (concluding that as applied in the context of a cross-burning prosecution, § 241 violated the First Amendment, because jury instructions defined “threat” to not require threat of physical force). 118 18 U.S.C. § 241. 119 See United States v. Stewart, 806 F.2d 64, 67 (3d Cir. 1986) (“As the government points out, the courts have recognized that a § 241 violation may be predicated on interference with the rights of a broad class of potential victims.”). 120 18 U.S.C. § 241. Previous iterations of § 241 were expressly limited to United States citizens, prompting courts to conclude that § 241 excluded non-citizens from protection. United States v. Gaggi, 811 F.2d 47, 58 (2d Cir. 1987). In 1988, Congress broadened § 241 to apply to any “inhabitant of any State, Territory, or District.” Anti-Drug Abuse Act of 1988, P.L. 100-690, § 7018, 102 Stat 4181, 4396 (1988) (“Section 241 of title 18, United States Code, is amended by striking ‘citizen’ and inserting ‘inhabitant of any State, Territory, or District.’”). Congress further amended the scope of § 241 in 1994 to protect “any person” in the United States as opposed to just “inhabitants,” Violent Crime Control and Law Enforcement Act of 1994, P.L. 103-322, § 320201, 108 Stat 1796, 2113 (1994) (“Section 241 of title 18, United States Code, is amended by striking ‘inhabitant of’ and inserting ‘person in’”), a term in a related statute that prompted judicial disagreement over the status of temporary foreign visitors to the United States. See generally United States v. Maravilla, 907 F.2d 216, 223-28 (1st Cir. 1990) (interpreting “inhabitant” in the context of 18 U.S.C. § 242, and summarizing diverging case law on the applicability of that phrase to a “temporary foreign daytime visitor”). Congressional Research Service 16 Overview of Federal Hate Crime Laws Fourth, there must be proof that the agreement was “directed towards the free exercise or enjoyment of rights and privileges secured by the Constitution and federal law,”121 that is, a right “made specific either by the express terms of the Federal Constitution or laws or by decisions interpreting them.”122 Typically, § 241 prosecutions have involved deprivation of constitutional rights,123 or rights created by statutes that are themselves aimed at enforcing constitutional rights.124 Further, the defendant must have had the “specific intent” or “particular purpose” of interfering with the victim’s enjoyment of the federal right.125 This requires establishing only a defendant’s intent to interfere with an activity or interest that is a right protected by federal statute or the Constitution,126 not an understanding by the defendant that the activity or interest is legally protected as a federal right.127 Deprivation of Rights under Color of Law, 18 U.S.C. § 242 Pursuant to 18 U.S.C. § 242, it is unlawful “under color of any law, statute, ordinance, regulation, or custom, [to] willfully subject[] any person in any State, Territory, Commonwealth, Possession, or District to the deprivation of any rights, privileges, or immunities secured or protected by the Constitution or laws of the United States.”128 121 18 U.S.C. § 241. 122 United States v. Kozminski, 487 U.S. 931, 941 (1988); accord United States v. Price, 383 U.S. 787, 800 (1966) (“As we have discussed, its language embraces all of the rights and privileges secured to citizens by all of the Constitution and all of the laws of the United States.”). The Supreme Court read § 241 as imposing the requirement that the interference be with a federal right in order to prevent the statute from being unconstitutionally vague. Kozminski, 487 U.S. at 941. 123 See, e.g., United States v. Gonzalez, 906 F.3d 784, 790 (9th Cir. 2018), cert. denied, 139 S. Ct. 1568 (2019), and cert. denied sub nom. Luviano v. United States, 140 S. Ct. 159 (2019) (summarizing charges in § 241 prosecution, which included allegations of deprivation of constitutional rights to due process); Anderson v. United States, 417 U.S. 211, 226–27 (1974) (evaluating § 241 prosecution for interference with the voter’s “right under the Constitution to have his vote fairly counted, without its being distorted by fraudulently cast votes”). 124 See United States v. Salyer, 893 F.2d 113, 115–16 (6th Cir. 1989) (examining § 241 prosecution where federally protected right was “the right to hold and occupy a dwelling without injury . . . because of race and color” as “derived from the Fair Housing Act of 1968”). 125 United States v. Ehrlichman, 546 F.2d 910, 921 (D.C. Cir. 1976). This intent element is virtually identical to that contained in 18 U.S.C. § 242, discussed below. See Price, 383 U.S. at 806 n.20 (explaining that there is no “basis for distinction between” §§ 241 and 242 with respect to their respective requirements “that specific intent be proved”). As discussed below, in the context of § 242 the intent element has been interpreted inconsistently by courts. See infra “Elements of a § 242 Violation.” 126 See Ehrlichman, 546 F.2d at 922 (“[T]he specific intent required to violate section 241 is the purpose of the conspirators to commit acts which deprive a citizen of interests in fact protected by clearly defined constitutional rights.”). 127 See Ehrlichman, 546 F.2d at 922 (discussing specific intent under § 241 and concluding that “[t]here is no requirement under section 241 that a defendant recognize the unlawfulness of his acts”); accord United States v. Redwine, 715 F.2d 315, 319–20 (7th Cir. 1983) (“We note that while specific intent to interfere with a federally protected right must be shown, it is not necessary that the defendant be shown to have a legalistic appreciation of the federally protected nature of that right.”); United States v. Nathan, 238 F.2d 401, 407 (7th Cir. 1956) (analyzing specific intent under § 241 and concluding that “it is immaterial that the defendants were without knowledge of the constitutional rights of citizens”). 128 18 U.S.C. § 242. Section 242 also includes what could be described as a differential punishment provision, which prohibits, under color of law, willfully subjecting any person to “different punishments, pains, or penalties,” because of a bias against that person’s color, race, or citizenship status. Id. Although the differential punishment provision is a separate offense, United States v. Classic, 313 U.S. 299, 327 (1941), § 242 prosecutions have generally involved Congressional Research Service 17 Overview of Federal Hate Crime Laws Like its counterpart, 18 U.S.C. § 241, § 242 originated as a Reconstruction Era civil rights statute.129 Also like § 241, § 242 does not require that the defendant’s conduct be motivated by a specific bias against the victim, but has been used to prosecute bias-motivated crimes such as the “notorious murders of civil rights workers Michael Henry Schwerner, James Earl Chaney, and Andrew Goodman” by “Mississippi law enforcement officials” in 1964.130 Elements of a § 242 Violation The elements of a § 242 violation for deprivation of federally-protected rights under color of law overlap considerably with those of a § 241 offense (described above),131 and the statutes are often interpreted in relation to each other.132 Both §§ 241 and 242 protect the same rights,133 namely, all those “of the Constitution and laws of the United States.”134 In addition, § 242 protects the same individuals as § 241 does135—namely “any person in any State, Territory, Commonwealth, Possession, or District.”136 There are some significant differences between the two statutes. Most fundamentally, because § 242 is not a conspiracy statute like § 241, prosecuting a defendant under this provision does not require proof of an agreement between two or more individuals, and can apply to an individual acting alone.137 In addition, a prosecution under § 242 requires proof of two elements that § 241 does not require. First, pursuant to § 242, the government must prove that the defendant deprived an individual of a federally-protected right acting “under color of law.”138 An action is taken “under color of law” when it involves the misuse of power by an individual “clothed” with legal authority.139 Official authorization is not required to act under “color of law.”140 Instead, the Supreme Court has held deprivation of rights under color of law and this Report therefore focuses primarily on § 242 in the deprivation of rights context. The George Floyd Justice in Policing Act (H.R. 1280), passed by the House in 2021, would clarify the reach of the § 242 prohibition against willfully subjecting any person, under color of law, with “different punishments, pains, or penalties,” on account of race, color, or on account of “such person being an alien.” See infra “George Floyd Justice in Policing Act of 2021 (H.R. 1280).” 129 Price, 383 U.S. at 789. 130 WOLFE, supra note 7, § 6:14. 131 United States v. Cobb, 905 F.2d 784, 787 (4th Cir. 1990) (explaining that to prove a § 242 violation, the government must establish four elements: (1) the defendant acted “under color of law;” (2) the defendant acted willfully; (3) the victim “was deprived of a right secured by the Constitution or laws of the United States;” and (4) the victim was a person in a state, territory, or district). 132 See United States v. Lanier, 520 U.S. 259, 265 (1997) (discussing similarity of statutes); Saul A. Green & Gary M. Felder, Uniting Against Hate: Michigan’s Aggressive Effort to End Hate Crime Violations Through Community Partnerships, 80 MICH. B.J. 58, 62 (2001) (“Aside from the element of conspiracy, or agreement . . . § 241 involves essentially the same analysis as its substantive counterpart, § 242.”). 133 See Lanier, 520 U.S. at 265 (describing rights protected by §§ 241 and 242). 134 United States v. Price, 383 U.S. 787, 797 (1966). 135 See supra notes 118-120 and accompanying text. 136 18 U.S.C. § 242. 137 Id. 138 Id. 139 United States v. Classic, 313 U.S. 299, 326 (1941). 140 See, e.g. Screws v. United States, 325 U.S. 91, 111 (1945) (plurality opinion) (“If, as suggested, the statute was designed to embrace only action which the State in fact authorized, the words ‘under color of any law’ were hardly apt Congressional Research Service 18 Overview of Federal Hate Crime Laws that “under color of law” means “under ‘pretense’ of law.”141 Therefore, the phrase includes the acts of individuals “who undertake to perform their official duties” even if they overstep their authority.142 The phrase excludes “personal pursuits,”143 meaning that those who are “pursuing private aims and not acting by virtue of state authority” are not acting under color of law.144 United States v. Tarpley offers an illustration.145 In Tarpley, the Fifth Circuit concluded that a police officer acted “under color of law” when he assaulted his wife’s romantic partner.146 Although the officer argued that he did not act under color of law because the assault was motivated by jealousy and therefore a private aim, the court disagreed.147 The court reasoned that the officer acted under color of law during the assault because, among other factors, he identified himself as an officer and claimed that his position gave him authority for the assault, telling the victim he could kill him because he was a police officer.148 Although cases interpreting “under color of law” generally focus on law enforcement and corrections personnel,149 a broad range of individuals may act under color of law, including both federal and state officials.150 For instance, courts have concluded that an aide at a state-run hospital,151 state commissioners of elections,152 and a county public defender,153 among others,154 have acted under color of law in the context of § 242 prosecutions. Private citizens may act under color of law as well, particularly when engaged in a typical governmental function—as in the case of private security guards employed in jurisdictions where they are “vested with policemen’s words to express the idea.”). 141 Id. 142 Id. 143 Id. 144 United States v. Tarpley, 945 F.2d 806, 809 (5th Cir. 1991). 145 Id. 146 Id. 147 Id. 148 Id. In contrast, in Butler v. Sheriff of Palm Beach Cty., the Eleventh Circuit distinguished Tarpley in the context of a federal civil lawsuit against an off-duty corrections officer who allegedly handcuffed, assaulted, and drew a gun on her daughter’s romantic partner while he was in the corrections officer’s house. 685 F.3d 1261, 1262, 1266-68 (11th Cir. 2012). The Eleventh Circuit concluded that the corrections officer did not act under color of law, because her conduct “was not accomplished because of her status as a corrections officer” but rather as an “irate mother.” Id. In reaching that conclusion, the Eleventh Circuit looked at a variety of factors, including that the corrections officer “did not use her law enforcement position to strike up a relationship with the victim” or to “gain access to the house where the assault took place,” and that she did not “purport to exercise her official authority” to subdue or arrest a criminal. Id. The Eleventh Circuit also discounted the fact that the corrections officer used her official handcuffs and firearm, noting that certain firearms and handcuffs are generally something that private citizens may also lawfully possess. Id. 149 See, e.g., United States v. Davis, 971 F.3d 524, 528 (5th Cir. 2020); see also Statutes Enforced by the Criminal Section, U.S. Dep’t of Justice (“Those prosecuted under [§ 242] typically include police officers, sheriff’s deputies, and prison guards.”), https://www.justice.gov/crt/statutes-enforced-criminal-section (last visited Mar. 15, 2022). 150 See Screws v . United States, 325 U.S. 91, 108 (1945) (plurality opinion) (“He who acts under ‘color’ of law may be a federal officer or a state officer.”). 151 E.g., United States v. Dise, 763 F.2d 586, 588 (3d Cir. 1985). 152 E.g., United States v. Classic, 313 U.S. 299, 325-26 (1941). 153 E.g., United States v. Senak, 527 F.2d 129, 132 (7th Cir. 1975). 154 See, e.g., United States v. Dillon, 532 F.3d 379, 382 (5th Cir. 2008) (affirming conviction under 18 U.S.C. § 242 of assistant city attorney for depriving victims of right to bodily integrity under color of law). Congressional Research Service 19 Overview of Federal Hate Crime Laws powers.”155 In addition, private persons with no government functions or duties may act under color of law when they act in conjunction with government personnel.156 For instance, in United States v. Price, the Supreme Court held that private citizens acted “under color of law” when they joined state officers in the assault and killing of three men.157 Second, to prove a § 242 violation, the government must show that the defendant’s conduct was willful,158 a requirement subject to some ambiguity.159 The seminal authority on the statutory meaning of “willfulness” in § 242 is the four-justice Supreme Court plurality160 opinion in Screws v. United States.161 The Screws plurality interpreted “willfully” to require proof that the defendant acted with “a specific intent to deprive a person of a federal right,” “open defiance,” or “reckless disregard of a constitutional requirement.”162 Evidence that the defendant had a generally bad purpose may be insufficient to establish willfulness in § 242, absent proof of specific intent to deprive another of a federal right.163 It is not entirely clear from Screws, however, what suffices as specific intent to deprive another of a federal right or to recklessly disregard constitutional requirements.164 The plurality opinion in Screws notes that a defendant has the requisite intent if he has the “purpose to deprive the [victim] of a constitutional [or federal statutory] right,” but it is immaterial whether he was “thinking in constitutional terms.”165 Taken in conjunction, it is possible to interpret these statements in several ways as application of the Screws willfulness analysis by lower courts varies.166 For example, some courts have broadly interpreted the Screws intent language to mean that “[t]here is no requirement . . . that a defendant recognize the 155 Williams v. United States, 341 U.S. 97, 99 (1951). 156 See United States v. Price, 383 U.S. 787, 794-95 (1966). 157 Id. at 795 (“[T]hey were participants in official lawlessness, acting in willful concert with state officers and hence under color of law.”). 158 18 U.S.C. § 242. 159 See Screws, 325 U.S. at 101 (“We recently pointed out that ‘willful’ is a word ‘of many meanings, its construction often being influenced by its context.’” (quoting Spies v. United States, 317 U.S. 492, 497, (1943)). 160 Generally, plurality opinions lack the same precedential force as majority opinions. See generally CRS Legal Sidebar LSB10113, What Happens When Five Supreme Court Justices Can’t Agree?, by Kevin M. Lewis. Although the Court has adopted some aspects of the Screws plurality opinion in later binding precedent, see, e.g., United States v. Lanier, 520 U.S. 259, 267 (1997) (adopting Screws plurality analysis of the scope of rights protected by § 242), it has yet to do so for the “willfulness” analysis. As of March 30, 2022 a Westlaw search of citing references to Screws yields 90 Supreme Court cases. Of those, 25 contain variations of the word “willful” in the same paragraph as a citation to § 242. None of those cases have expressly adopted the Screws plurality’s “willfulness” language in binding analysis, although the Court has on occasion quoted some of the relevant “willfulness” language in dicta. E.g., Monroe v. Pape, 365 U.S. 167, 187 (1961), overruled on other grounds by Monell v. Dep’t of Soc. Servs. of City of New York, 436 U.S. 658 (1978). 161 325 U.S. at 93. The Court in Screws interpreted a predecessor statute to current § 242. Id. For a thorough discussion of Screws, see, e.g., CRS Legal Sidebar LSB10495, Federal Police Oversight: Criminal Civil Rights Violations Under 18 U.S.C. § 242, by Joanna R. Lampe, from which this section draws heavily. 162 Screws, 325 U.S. at 103, 105. 163 Id. at 103. 164 See Lampe, supra note 161 (discussing disagreement among federal courts concerning how to define specific intent for § 242 purposes in light of Screws). 165 Screws, 325 U.S. at 106, 107 (“The fact that the defendants may not have been thinking in constitutional terms is not material where their aim was not to enforce local law but to deprive a citizen of a right and that right was protected by the Constitution.”). 166 Lampe, supra note 161. Congressional Research Service 20 Overview of Federal Hate Crime Laws unlawfulness of his acts.”167 In contrast, at least one federal court has narrowly interpreted Screws to mean that willfulness “implies conscious purpose to do wrong and intent to deprive another of a right guaranteed by the Constitution, federal statutes, or decisional law.”168 Legislation in the 117th Congress—the George Floyd Justice in Policing Act passed by the House in 2021—would resolve the judicial disagreement over Screws with respect to § 242.169 In particular, the legislation would amend § 242 to require only a knowing or reckless mental state, in effect codifying the view of courts interpreting Screws more broadly.170 According to several sponsors of the proposal, lowering the mental state requirement was intended to increase the accountability of law enforcement officers, as it is “extremely difficult to prosecute” officers under § 242 current willfulness requirement.171 Violent Interference with Federally Protected Rights, 18 U.S.C. § 245 Enacted in 1968, 18 U.S.C. § 245 is sometimes described as “[t]he first modern federal hate crimes statute.”172 Among other things, § 245 sought to combat “[a]cts of racial terrorism” and “brutal crimes” committed against Blacks and civil rights workers.173 A Senate Report discussing the purpose of enacting § 245 noted concerns that state and local officials had either “been unable or unwilling to solve and prosecute” such crimes.174 In addition, § 245 was designed to address limitations in §§ 241 and 242 that left those statutes “inadequate to deal with” the racially motivated crimes of the 1960s.175 According to the report, §§ 241 and 242 lacked sufficient deterrent effect because they failed to “spell out clearly what kinds of conduct are prohibited.”176 In addition § 241 “applies only to conspiracies,” and does not permit prosecution of “a single individual unless in some way another person ha[d] been involved.”177 To address these concerns, Congress drafted § 245 to allow prosecutions of an individual defendant for interference with specific activities, regardless of whether or not the defendant was acting under color of law.178 167 See, e.g., United States v. Johnstone, 107 F.3d 200, 210 (3d Cir. 1997) (affirming use of jury instruction allowing a finding of willfulness even if the defendant “had no real familiarity with the Constitution or with the particular constitutional right involved”); accord United States v. McClean, 528 F.2d 1250, 1255 (2d Cir. 1976) (concluding that § 242 requires only proof of the defendant’s specific intent to “engage in conduct having the effect of” depriving someone of a federal right, not specific intent to “deprive persons of federal rights”). 168 United States v. Garza, 754 F.2d 1202, 1210 (5th Cir. 1985). 169 George Floyd Justice in Policing Act of 2021, H.R. 1280, 117th Cong. (2021). 170 Id. 171 See Karen Bass et al., Justice in Policing Act, HOUSE JUDICIARY COMM., https://judiciary.house.gov/uploadedfiles/justice_in_policing_act_of_2020_section_by_section.pdf?utm_campaign=292 6-519 (last visited Mar. 15, 2022). 172 Nicholas C. Erickson, Hate Crimes, 6 GEO. J. GENDER & L. 289, 291-92 (2005). 173 S. REP. NO. 90-721, at 1839 (1967). 174 Id., at 1840. 175 Id. at 1840-41. 176 Id. at 1841. 177 Id. 178 See id. (explaining that § 245 “would prohibit forcible interference with any of the specified activities by individuals acting alone as well as by public officers or other persons acting under color of law”). Congressional Research Service 21 Overview of Federal Hate Crime Laws Section 245 includes several categories of offenses, but three subsections are particularly relevant to the hate crime context: § 245(b)(2), (b)(4), and (b)(5).179 The three categories overlap considerably, but each subsection protects slightly different combinations of individuals from willful injury, intimidation, or interference with respect to certain federally-protected activities like voting, jury service, and public education.180 Prosecutors have invoked all three of these § 245 categories in charging bias-motivated conduct, such as a racially-motivated assault aimed at interfering with the victim’s enjoyment of federal recreational facilities,181 an attack by a police officer on a Black janitor at a public tavern,182 the fatal shooting of a Jewish man,183 and the beating of a Black man to prevent the busing of Black students to public schools.184 Prosecutors have also used § 245 to prosecute high-profile cases such as the 2020 killing of Ahmaud Arbery.185 Elements of a § 245(b)(2) Violation Section 245(b)(2) prohibits interference with, intimidation of, or injury to, an individual because of his race, color, religion, or national origin and his participation in enumerated protected activities.186 To establish a § 245(b)(2) violation, the government must prove several elements.187 First, the government must show that the defendant used force or threat of force to injure, interfere with, or intimidate any person.188 The Supreme Court has interpreted “force or threat of force” to include only violent actions or the threat of violence.189 Courts have ruled that a range of 179 In addition, § 245 creates a separate offense that does not rely on bias or discriminatory motive. Specifically, under § 245(b)(1) it is a crime to use force, or threaten to use force, to willfully interfere with an individual because that individual has been engaged in certain enumerated federally protected activities. 18 U.S.C. § 245(b)(1). Those activities include (1) voting, campaigning or qualifying for elective office; (2) participating or enjoying any federal “benefit, service, privilege, program, facility or activity”; (3) applying for or enjoying federal employment; (4) participating in jury duty; or (5) participating in or enjoying “any program or activity receiving Federal financial assistance.” Id. Based on both the plain language of the statute and legislative history, courts have concluded that § 245(b)(1) does not require that interference with federal rights occur due to a discriminatory motive. United States v. Pimental, 979 F.2d 282, 283 (2d Cir. 1992). Further discussion of §245(b)(1) is beyond the scope of this Report, as is discussion of § 245(b)(3), which “prohibits injuring or threatening someone engaged in interstate commerce during a riot.” Id. at 284. 180 18 U.S.C. § 245. 181 United States v. Price, 464 F.2d 1217, 1218 (8th Cir. 1972). 182 United States v. Hearod, 499 F.2d 1003, 1004 (5th Cir. 1974). 183 United States v. Lane, 883 F.2d 1484, 1487 (10th Cir. 1989). 184 United States v. Griffin, 525 F.2d 710, 712 (1st Cir. 1975). 185 Verdict Form, United States v. McMichael, No. 2:21-cr-22 (S.D. Ga. 2022); Press Release, U.S. Dep’t of Justice, Federal Jury Finds Three Men Guilty of Hate Crimes in Connection with the Pursuit and Killing of Ahmaud Arbery (Feb. 22, 2022), https://www.justice.gov/opa/pr/federal-jury-finds-three-men-guilty-hate-crimes-connection-pursuitand-killing-ahmaud-arbery. 186 18 U.S.C. § 245(b)(2). 187 See United States v. Sandstrom, 594 F.3d 634, 654 (8th Cir. 2010) (explaining that establishing a violation of § 245(b)(2) requires proof that the defendant (1) used force or threat of force to injure, intimidate or interfere with, a person; (2) acted because of that person’s race, color, religion, or national origin; (3) acted because that person was enjoying or participating in an enumerated protected right; and (4) acted willfully). 188 Id. 189 See Johnson v. Mississippi, 421 U.S. 213, 224 (1975) (“The provision on its face focuses on the use of force, and its legislative history confirms that its central purpose was to prevent and punish violent interferences with the exercise of specified rights and that it was not aimed at interrupting or frustrating the otherwise orderly processes of state law.”). Congressional Research Service 22 Overview of Federal Hate Crime Laws conduct qualifies as violent, such as murders190 and assaults.191 Threats alone can also suffice, but First Amendment free speech concerns may complicate such prosecutions.192 Specifically, threatening speech may be constitutionally protected unless it qualifies as a “true threat” under Supreme Court precedent193— which are statements conveying “an intent to commit an act of unlawful violence to a particular individual or group of individuals.”194 Accordingly, at least one court has construed threat of force in the context of § 245(b)(2) to mean that the defendant either intended to “threaten the use of force,” or intended to cause the victims to “reasonably fear the imminent use of force or violence.”195 Second, the government must establish dual intents on the part of the defendant. On the one hand, § 245(b)(2) requires proof that the defendant acted because of196 the race, color, religion, or national origin of the victim.197 On the other, the government must also show that the defendant acted because the victim was enjoying or participating in an enumerated protected right.198 The rights protected by § 245(b)(2) are the enjoyment of or participation in:       Public education; State or local “benefit[s], service[s], privilege[s], program[s], facilit[ies] or activit[ies]”; State or local employment or labor organizations; State or local jury service; Interstate commerce or common carriers; and Public accommodations such as movie theaters and entertainment venues, hotels and other hospitality and travel providers, and restaurants and other businesses selling food and beverages.199 190 E.g., United States v. Lane, 883 F.2d 1484, 1487 (10th Cir. 1989). 191 E.g., United States v. Sowa, 34 F.3d 447, 449 (7th Cir. 1994). For more information on the scope of “force or threat of force” see WOLFE, supra note 7, § 6:27 (collecting cases). 192 WOLFE, supra note 7, § 6:27. 193 See, e.g., United States v. Syring, 522 F. Supp. 2d 125, 129 (D.D.C. 2007). 194 Virginia v. Black, 538 U.S. 343, 359 (2003). For an examination of “true threats,” see generally CRS Report R45713, Terrorism, Violent Extremism, and the Internet: Free Speech Considerations, by Victoria L. Killion. 195 United States v. McDermott, 29 F.3d 404, 406 (8th Cir. 1994). 196 See supra “Conduct Occurring “Because Of.” 197 18 U.S.C. § 245(b)(2). Other motivations, such as biases against familial status, sexual orientation, sex, or disability fall outside the scope of § 245(b)(2). Id.; accord Kami Chavis Simmons, Subverting Symbolism: The Matthew Shepard and James Byrd, Jr. Hate Crimes Prevention Act and Cooperative Federalism, 49 AM. CRIM. L. REV. 1863, 1879 (2012). 198 18 U.S.C. § 245(b)(2); accord United States v. Nelson, 277 F.3d 164, 189 (2d Cir. 2002) (“Section 245(b)(2)(B), properly understood,. . . restricts its attention to acts of force or threat of force that involve two distinct kinds of discriminatory relationships with the victim—first, an animus against the victim on account of her race, religion, etc., that is, her membership in the categories the statute protects; and, second, an intent to act against the victim on account of her using public facilities, etc., that is, because she was engaging in an activity the statute protects.”). 199 18 U.S.C. § 245(b)(2). The proprietors of lodging establishments that have five or fewer rooms for rent and that the proprietor resides in are excluded from this provision. Id. Notably, although the rights protected under § 245 are broad, they do not include housing-related activities, because those fall within the scope of 42 U.S.C. § 3631. WOLFE, supra note 7, § 6:29. Congressional Research Service 23 Overview of Federal Hate Crime Laws Third, the government must show that the defendant acted “willfully.”200 A number of courts have construed willfulness in the context of § 245(b)(2) to require “specific intent to interfere with a federally protected activity on the basis of” the victim’s race, color, religion, or national origin.201 In this sense, it is difficult to separate the willfulness requirement from other elements of § 245(b)(2) and courts sometimes combine the elements into a single discussion.202 Elements of a § 245(b)(4) Violation As noted above, there appears to be considerable overlap between the various provisions of § 245, and §§ 245(b)(2) and 245(b)(4) are no exception.203 Both provisions prohibit violent biasmotivated interference with any person because of that person’s participation in a protected activity.204 However, § 245(b)(4)—specifically 245(b)(4)(A)—also contains language prohibiting violent interference with individuals to discourage others from participating in or enjoying, without discrimination based on race, color, religion, or national origin, enumerated protected rights.205Although federal courts have had few opportunities to interpret § 245(b)(4), its core concern has been described as prohibiting conduct that could have a discriminatory “chilling effect” on participation in protected activities.206 In United States v. Griffin, for example, the First Circuit upheld the § 245(b)(4)(A) conviction of a defendant who assaulted a Black man who had been driving by an anti-busing protest in Boston, and who had been forcibly removed from his car by some of the protestors.207 The defendant, who pursued the victim as he sought to escape the crowd, beat the victim “with a club . . . [,] incapacitating [the victim] for several weeks.”208 Although the victim was “not a student, nor a parent, nor otherwise connected with any Boston public school,” the court concluded that the defendant nonetheless violated § 245(b)(4)(A) because there was evidence to conclude that the “defendant intended the indiscriminate beating of an innocent [B]lack [person] on a public street near a school at school release time, with the police unable to prevent it, to have a chilling effect” on Black children attending that school and 200 18 U.S.C. § 245(b)(2). 201 United States v. Makowski, 120 F.3d 1078, 1081 (9th Cir. 1997); accord United States v. Franklin, 704 F.2d 1183, 1188 (10th Cir. 1983) (“The statute proscribes willfully injuring ‘any person because of his race’ . . . . Thus the Government was required to prove not only that [the defendant] killed [the victims] but that he did so because of their race.” (citation omitted) (quoting 18 U.S.C. § 245(b)); see also United States v. Griffin, 585 F. Supp. 1439, 1444 (M.D.N.C. 1983) (“Section 245 requires that the accused act wil[l]fully and with a specific intent to do what the law forbids. To constitute a violation of the statute . . . the government must show that the offender wil[l]fully sought to interfere with the enumerated activity.”). 202 Makowski, 120 F.3d at 1081; Franklin, 704 F.2d at 1188. 203 See supra note 180 and accompanying text. 204 18 U.S.C. § 245(b)(4)(A) (protecting those who are, or have been, participating in various enumerated activities from certain types of interference); see also supra “Elements of a § 245(b)(2) Violation.” 205 See 18 U.S.C. § 245(b)(4)(A) (prohibiting certain interference “in order to intimidate such person or any other person or any class of persons from” participating in protected activities); United States v. Pimental, 979 F.2d 282, 284 (2d Cir. 1992) (explaining that § 245(b)(4) protects direct participants and also certain third parties). 206 WOLFE, supra note 7, § 6:33; see also S. REP. NO. 90-721, at 1839 (1967) (“Also punishable would be violence directed against persons not involved in civil rights activity where such persons are selected as victims in order to intimidate others.”). 207 525 F.2d 710, 712 (1st Cir. 1975). 208 Id. Congressional Research Service 24 Overview of Federal Hate Crime Laws their parents.209 In other words, the court found that the defendant violently interfered with the victim likely to intimidate a group of people from participating, without discrimination on account of their race, in their protected right to public education. Another provision, § 245(b)(4)(B), prohibits violent interference with an individual “affording another person or class of persons opportunity or protection” to participate in a protected activity, or to intimidate others from affording such opportunities.210 This language suggests that § 245(b)(4)(B) is not focused on protecting individuals directly participating in protected activities, but rather third parties who provide opportunities for others to participate in protected activities. Nevertheless, due to a lack of interpretive case law, the exact contours of § 245(b)(4)(B) are uncertain.211 However, a broad goal of enacting § 245 was to protect “persons who urge or aid participation in” protected activities, as well as those “who have duties to perform with respect to the protected activities” like public school or voter registration officials.212 It is possible § 245(b)(4)(B) was intended to cover some or all of these groups. That interpretation appears consistent with one DOJ prosecution under § 245(b)(4)(B) connected to the 2009 shooting at the United States Holocaust Memorial Museum in Washington, D.C., which resulted in the death of a security guard.213 In an indictment, the DOJ alleged that the defendant violated § 245(b)(4)(B) by shooting the security guard because the guard had been “affording opportunity and protection” to Jewish people and those associated with them in participating—without discrimination on account of race or religion—in the goods, services, and accommodations offered by the museum.214 The indictment further alleged that the defendant sought to intimidate other employees, directors, and affiliates of the museum from affording such opportunity and protection.215 Another important distinction of § 245(b)(4) is the scope of the list of enumerated activities it encompasses.216 Section 245(b)(4) protects all the activities that fall under § 245(b)(2), as well as:     Voting, campaigning or qualifying for elective office; Participating or enjoying any federal “benefit, service, privilege, program, facility or activity”; Applying for or enjoying federal employment; Participating in federal jury duty; and 209 Id. 210 18 U.S.C. § 245(b)(4). 211 As of March 30, 2022 a search of Westlaw yields 797 federal cases citing to § 245. A search within those results for opinions including “245(b)(4)” drops that number to 13 cases. A search within the 743 federal cases citing to § 245 for opinions that include “245(b)(4)” in the same paragraph as the phrase “without discrimination” (245(b)(4) /p “without discrimination”) reduces the number of responses to four. At least one observer has also observed the scarcity of case law under § 245(b)(4)(B). Wolfe, supra note 7, § 6:33 (explaining that there “are no reported cases interpreting” § 245(b)(4)(B)). 212 S. REP. NO. 90-721, at 1839 (1967). 213 Indictment, United States v. Wenneker, No. 09CR00184, 2009 WL 2342906 (D.D.C. Jul. 30, 2009). 214 Id. 215 Id. The court abated the prosecution of the case against the defendant upon notification of his death. See Liz Robbins, J. W. von Brunn, Accused Museum Gunman, Dies at 89, N.Y. TIMES (Jan. 6, 2010), https://www.nytimes.com/2010/01/07/us/07vonbrunn.html. 216 18 U.S.C. § 245. Congressional Research Service 25 Overview of Federal Hate Crime Laws  Participating in or enjoying “any program or activity receiving Federal financial assistance.”217 Elements of a § 245(b)(5) Violation Section 245(b)(5) prohibits violent interference with citizens who are targeted because they are helping others participate in a protected activity without discrimination on account of race, color, religion, or national origin.218 The provision is in some ways similar to other provisions in § 245. In particular, § 245(b)(5) protects individuals who are assisting others in some way to participate in protected activities without discrimination219 and it covers the same list of protected activities as § 245(b)(4).220 Nevertheless, § 245(b)(5) embodies three notable distinctions. First, § 245(b)(5) expressly limits its protections to citizens, and therefore appears to exclude non-citizens such as temporary visitors or aliens. 221 It therefore protects a narrower class of individuals than §§ 245(b)(2) and (b)(4), which extend their protections to “any person.”222 Second, § 245(b)(5) protects participation “in speech or peaceful assembly opposing any denial of the opportunity to” participate in protected activities.223 According to one federal court, this language “specifically addresses and protects parades in support of boycotts organized to fight racial discrimination, . . . or parades in support of school desegregation, or parades organized to promote voter registration drives,” among other things.224 The court concluded that it did not, however, extend to a general civil rights parade, where the purpose of that parade was to condemn a “clandestine racist organization,” because any intention to use the parade to promote protected activities in § 245 was incidental.225 Third, § 245(b)(5) protects only those who are lawfully engaged in protected activities or speech or assembly in support of those activities,226 and seemingly would not protect, for example, “citizens engaged in or encouraging riot or civil disturbance.”227 217 Id. § 245(2)(b)(1)(A)–(E). 218 Id. § 245(b)(5) (criminalizing by actual or threatened force, willfully injuring, intimidating, or interfering with—or attempting to injure, intimidate, or interfere with—“any citizen because he is or has been, or in order to intimidate such citizen or any other citizen from lawfully aiding or encouraging other persons to participate, without discrimination on account of race, color, religion or national origin” in certain enumerated activities). 219 United States v. Pimental, 979 F.2d 282, 284 (2d Cir. 1992) (“Thus, [§§ 245(b)(4) and (b)(5)] protect not only the direct participants in and beneficiaries of [protected activities], but also protect third persons whose involvement takes the form of aiding the activities or assisting others to participate when, in such indirect participation, they act according to federal law and policy, i.e., ‘without discrimination on account of race, color, religion or national origin.’”) (quoting 18 U.S.C. § 245). 220 18 U.S.C. § 245(b)(5). 221 See generally WOLFE, supra note 7, § 6:34. 222 Id. 223 18 U.S.C. § 245(b)(5). 224 United States v. Griffin, 585 F. Supp. 1439, 1441 (M.D.N.C. 1983) (internal citation omitted). 225 Id. 226 18 U.S.C. § 245(b)(5). 227 Wolfe, supra note 7, § 6:34 (internal quotation marks omitted). Congressional Research Service 26 Overview of Federal Hate Crime Laws Although there is minimal case law interpreting § 245(b)(5),228 one useful illustration is United States v. Johns.229 In Johns, the Fifth Circuit upheld the convictions of several defendants under § 245(b)(5) for shooting into the home of a NAACP chapter president.230 The court concluded that “in attacking the NAACP leaders the defendants intended forcibly to discourage the NAACP’s efforts to secure better employment and housing opportunities for [Black people] and its efforts to ensure appropriate distribution of government revenues to the beneficiaries of various programs.”231 Certification Requirement and Availability of State Prosecutions State governments prosecute most hate crimes,232 and § 245 contains a provision clarifying that the statute is not intended to “prevent any State . . . from exercising jurisdiction over any offense over which it would have jurisdiction in the absence of this section.”233 In addition, federal prosecution pursuant to § 245 requires written certification from the Attorney General or certain designees234 stating that “prosecution by the United States is in the public interest and necessary to secure substantial justice.”235 Criminal Interference with Right to Fair Housing, 42 U.S.C. § 3631 Section 3631 of Title 42 of the United States Code includes three criminal provisions—42 U.S.C. § 3631(a), (b), (c)—that prohibit willfully interfering, by actual, attempted, or threatened force with housing rights because of “race, color, religion, sex, handicap,” familial status, or national origin.236 The three provisions often overlap, but each protects a somewhat different group of individuals, ranging from individuals who are themselves participating in housing rights, to individuals assisting others in enjoying those housing rights, to individuals who are targeted in order to discourage others from enjoying housing rights.237 The statute closely resembles 18 U.S.C. § 245, and both were enacted as part of the Civil Rights Act of 1968.238 Section 3631 has been applied to a wide array of conduct targeting the enjoyment of housing.239 For instance, federal prosecutors have successfully used § 3631 to prosecute two women who conspired to hang a noose outside the home of a family from Africa,240 several individuals who 228 As of March 30, 2022, a search on Westlaw within citing references to § 245, yielded eight cases that included the phrase “245(b)(5).” 229 See United States v. Johns, 615 F.2d 672, 676 (5th Cir. 1980) (per curiam). 230 Id. 231 Id. 232 WOLFE, supra note 7, § 2:2. 233 18 U.S.C. § 245(a)(1). 234 The Attorney General delegated his § 245 certification authority to the Assistant Attorney General for the Civil Rights Division. 28 C.F.R. § 0.50. 235 18 U.S.C. § 245 (footnote added). 236 42 U.S.C. § 3631. 237 Id. 238 Fair Housing Act, Pub. L. No. 90-284, Tit. VIII, 82 Stat. 81 (1968) (codified at 42 U.S.C. § 3631). For additional information on the history of this legislation, see generally WOLFE, supra note 7, § 5:3. 239 See, e.g., WOLFE, supra note 7, § 5:3 (collecting cases). 240 See supra note 102 and accompanying text. Congressional Research Service 27 Overview of Federal Hate Crime Laws attempted to burn a cross outside the dwelling of a biracial family,241 and the perpetrators of a racially-motivated armed home invasion.242 Elements of a § 3631(a) Violation Section 3631(a) prohibits the willful use of force or threat of force to injure, interfere with, or intimidate any person when it occurs because of two factors.243 First, the conduct must be because of the victim’s “race, color, religion, sex, handicap,” familial status, or national origin.244 Second, the underlying conduct must also have occurred because the victim was enjoying or engaged in protected housing rights, which under § 3631(a) include “selling, purchasing, renting, financing, occupying, or contracting or negotiating for the sale, purchase, rental, financing or occupation of any dwelling, or applying for or participating in any service, organization, or facility relating to the business of selling or renting dwellings.”245 Most § 3631(a) cases involve the right to occupy a dwelling, and courts have interpreted “occupy” and “dwelling” broadly.246 For example, courts have concluded that “occupy” includes temporary occupation, such as visiting the dwelling of another.247 “Dwellings,” meanwhile, include any “building, structure, or portion thereof which is occupied as, or designed or intended for occupancy as, a residence by one or more families, and any vacant land which is offered for sale or lease for the construction or location thereon of any such building, structure, or portion thereof.”248 Elements of a § 3631(b) violation Section 3631(b) criminalizes the use of actual or threatened force to willfully injure, intimidate, or interfere with any person (or attempts to willfully injure, intimidate, or interfere with any person) because he or she has (1) been participating in a protected housing right, or (2) afforded “another person or class of persons opportunity or protection so to participate” in federal housing rights, “without discrimination” based on “race, color, religion, sex, handicap,” familial status, or national origin.249 Alternatively, such conduct is criminal when intended to intimidate others from 241 Indictment, United States v. Wingo, No. 6:09CR60006-001, 2009 WL 6506510 (W.D. Ark. Apr. 22, 2009); Press Release, U.S. Dep’t of Justice, Four Arkansas Men Sentenced on Civil Rights Charges in Cross Burning Conspiracy (Dec. 8, 2009), https://www.justice.gov/opa/pr/four-arkansas-men-sentenced-civil-rights-charges-cross-burningconspiracy. 242 United States v. Rogers, 45 F.3d 1141, 1143 (7th Cir. 1995). Some prohibited conduct under § 3631—such as cross burnings—may also amount to conspiracies against rights prohibited under § 241, and prosecutors have used both statutes in some instances. See Indictment, Wingo, 2009 WL 6506510 (charging defendants in indictment with violations of §§ 241 and 3631 for an attempted cross burning). It is also possible to imagine overlap between §§ 3631 and 242, assuming an action implicating enjoyment of housing rights taken under color of la [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/crs%3AR47060. Public record. Not legal advice.