Policing Hate: The Problematic Expansion of Louisiana's Hate Crime Statute to Include Police Officers

• Author: Savannah Walker
• Position: J.D./D.C.L., 2018. Paul M. Hebert Law Center, Louisiana State University.
• Pages: 1413-1445

Policing Hate: The Problematic Expansion of Louisiana’s Hate Crime Statute to Include Police Officers TABLE OF CONTENTS Introduction ................................................................................ 1413 I. Hate Crime Laws: A Broad Overview ....................................... 1417 A. Defining “Hate Crime” ........................................................ 1417 B. Why We Legislate Hate ....................................................... 1418 C. Structure of State Hate Crime Statutes ................................ 1419 II. Dissecting the Flaws of the Blue Lives Matter Law .................. 1421 A. The Unnecessary Expressive Purpose ................................. 1422 B. The Practical Shortcomings ................................................. 1424 1. Police Officer Status Does Not Fit into a Hate Crime Statute ........................................................ 1425 2. The Blue Lives Matter Law Will Not Be Used Effectively ............................................................ 1428 a. Potential Underuse .................................................. 1428 b. Potential Misuse ..................................................... 1432 III. Recommended Solutions ............................................................ 1435 A. Revising the Law: An Imperfect Solution ........................... 1435 B. Repealing the Law: Nothing Lost, Plenty Gained ............... 1442 Conclusion .................................................................................. 1444 INTRODUCTION On December 20, 2014, Officers Rafael Ramos and Wenjian Liu of the New York City Police Department were sitting in a parked patrol car in Brooklyn, New York when a man armed with a handgun approached from the passenger side and fired multiple rounds into the vehicle, instantly killing both officers. 1 At a press conference that evening, the New Copyright 2018, by SAVANNAH WALKER. 1. Melanie Eversley, Katharine Lackey & Trevor Hughes, Two NYPD Officers Killed in Ambush Style Shooting, USA TODAY (Dec. 21, 2014, 9:21 AM), http://www.usatoday.com/story/news/nation/2014/12/20/new-york-city-police-officers-shot/20698679/ [https://perma.cc/NN3C-QGF7]. 1414 LOUISIANA LAW REVIEW [Vol. 78 York City Police Commissioner announced that the shooter deliberately targeted the police officers “for their uniform and the responsibility they embraced.” 2 The Commissioner pointed to posts on the shooter’s social media accounts foreshadowing a plan to “put wings on pigs” in retaliation for the highly protested police killings of Eric Garner and Michael Brown 3 as evidence of the killer’s bias against police officers. 4 The outrage surrounding the assassination of Officers Ramos and Liu was widespread. 5 Politicians and protesters alike condemned the violence. 6 Many people, however, believed the shooting was not a senseless, isolated act but evidence of something bigger: law enforcement was under systematic attack, a phenomenon politicians hastily dubbed a “war on cops.” 7 In the spring of 2016, Louisiana State Representative Lance Harris drafted House Bill 953, 8 a solution to what he perceived as an intentional crusade to terrorize police officers evidenced by the murders of Ramos 2. Id. 3. Ismaiiyl Brinsley (@dontrunup), INSTAGRAM (Dec. 20, 2014), archived at http://gawker.com/cop-killers-instagram-im-putting-wings-on-pigs-today-1673793 374 (last visited Sept. 6, 2016) [https://perma.cc/ZP2C-M8HE]; Ferguson Unrest: from Shooting to Nationwide Protests, BBC NEWS (Aug. 10, 2015), http://www.bbc .com/news/world-us-canada-30193354 [https://perma.cc/4FE5-YA3G]; Al Baker, Beyond the Chokehold: The Path to Eric Garner’s Death , N.Y. TIMES (June 13, 2015), http://www.nytimes.com/2015/06/14/nyregion/eric-garner-police-chokehold-staten-island.html [https://perma.cc/2DXZ-9YR8]. 4. Eversley et al., supra note 1. 5. Id. 6. Id. 7. See, e.g., Steve Benen, Ted Cruz Shows How Not to Respond to Police Killings, MSNBC (Sept. 2, 2015, 8:00 AM), http://www.msnbc.com/rachel-maddow-show/ted-cruz-shows-how-not-respond-police-killings (quoting Senator Ted Cruz, who remarked that cops are “feeling the assault” nationwide) [https://perma.cc/PW2T-JKW7]; Radley Balko, Scott Walk er Couldn’t Be More Wrong About the Threat to Police Officers, WASH. POST (Sept. 3, 2015), https://www.washingtonpost.com/news/the-watch/wp/2015/09/03/scott-walker-couldnt-be-more-wrong-about-the-threat-to-police-officers/?tid=a_inl&utm_term=.5 84f49b74c56 (criticizing Wisconsin governor Scott Walker’s comments on what he perceives as “a disturbing trend of police officers being murdered on the job”) [https://perma.cc/77HD-YFQN]. 8. H.B. 953, Reg. Sess. (La. 2016). 2018] COMMENT 1415 and Liu 9 and a similar murder of a deputy in Cypress, Texas. 10 The bill was termed the “Blue Lives Matter” bill, its name being a response to Black Lives Matter, a civil rights group 11 that has been accused of inciting anti-police violence through its protests of police activity. 12 The bill sought to modify Louisiana’s hate crime statute, which provides increased penalties for offenders who select their victims based on the individual victim’s race, age, gender, religion, color, creed, disability, sexual orientation, national origin, ancestry, or organizational affiliation. 13 The modification added “actual or perceived employment as a law enforcement officer, firefighter, or emergency medical services personnel” to the list of protected characteristics. 14 The bill passed the House unanimously and passed the Senate by a margin of 33-3. 15 Governor John Bel Edwards signed it into law on May 26, 2016, officially making Louisiana the first state to offer additional protection to law enforcement officers through hate crime legislation. 16 9. Elizabeth Crisp, ‘Blue Lives Matter’ : Louisiana Legislature Considers Hate Crime Protections for Police, Firefighters, ADVOCATE (Apr. 26, 2016, 3:26 PM), http://www.theadvocate.com/baton_rouge/news/politics/Legislature/article _f82c5a03-f31a-5574-bc5b-f1311aa1348f.html (explaining that Representative Harris cited the murders of Ramos and Liu in his proposal) [https://perma.cc /MK86-DPLR]. 10. See Elizabeth Chuck & James Novogrod, Texas Deputy Darren Goforth, Slain at Cypress Gas Station, Remembered at Funeral, NBC NEWS (Sept. 4, 2015, 3:19 PM), http://www.nbcnews.com/news/crime-courts/thousands-attend-funeral-texas-deputy-darren-goforth-n421831 [https://perma.cc/4JKG-TC9B]. 11. “Black Lives Matter” began as a protest cry after the 2012 fatal shooting of unarmed African-American teenager Trayvon Martin but now refers to a national political group that includes 30 official chapters. See Alex Altman, Person of the Year, the Short List: No. 4, Black Lives Matter, TIME (Dec. 2015), http://time.com/time-person-of-the-year-2015-runner-up-black-lives-matter/ [https://perma.cc/WBX9-USV6]. The group protests various forms of perceived racial oppression and injustice, but its largest and most visible protests have been those aimed at police brutality following the high-profile deaths of several African-American men at the hands of law enforcement. See id. 12. Richard Perez-Pena, Louisiana Enacts Hate Crime Laws to Protect a New Group: Police, N.Y. TIMES (May 26, 2016), http://www.nytimes.com/2016/05/27 /us/louisiana-enacts-hate-crimes-law-to-protect-a-new-group-police.html?_r=0 [https://perma.cc/3T44-MYL6]. 13. LA. REV. STAT. § 14:107.2 (2018). 14. Act No. 953, 2016 La. Acts 2038. 15. Perez-Pena, supra note 12. 16. Id. 1416 LOUISIANA LAW REVIEW [Vol. 78 Legislators across the country subsequently have proposed similar bills at both state 17 and federal 18 levels. Upon signing the bill, Governor Edwards declared that law enforcement officers deserve every available protection, 19 but he chose the wrong avenue for effectuating this protection. The hate crime statute is an improper safeguard against anti-police crimes for two main reasons. First, status as a police officer is not the kind of identity characteristic that belongs in a hate crime statute. 20 Second, the Blue Lives Matter amendment will not effectively protect police officers from the kinds of violent attacks that inspired its existence because the law’s structure makes it an impractical tool to prosecute such offenses. 21 Instead, the modification will weaken Louisiana’s hate crime statute by opening it up to massive over-expansion and may ultimately exacerbate the ongoing social conflict between citizens and police officers. 22 To avoid these consequences and serve the legitimate purpose of police protection, the Blue Lives Matter law should be repealed or, at the very least, rewritten. Part I of this Comment discusses the purpose of hate crime laws through historical context, explaining the various forms the laws take at the state level. Part II introduces Louisiana’s hate crime statute, analyzes the inconsistencies in the Blue Lives Matter amendment, and predicts the consequences the amendment will have on hate crime law, citizens, and social unity. Part III proposes the repeal of the amendment and considers heavy modification of the statute as an alternative solution. Finally, this Comment implores the Louisiana Legislature (“Legislature”) to use either of these solutions, both of which will protect police officers while avoiding the array of problems created by the Blue Lives Matter amendment. 17. See, e.g., Jonathan Silver, Abbott: Targeted Killing of Police Should Be a Hate Crime, TEX. TRIBUNE (July 18, 2016), https://www.texastribune.org/2016 /07/18/abbott-wants-killing-police-officer-become-hate-cr/ (explaining Texas’s Police Protection Act, which would extend hate crime protections to law enforcement officers) [https://perma.cc/DL9H-LRVZ]. 18. Attacks on Police Are Hateful, but Are They Hate Crimes?, L.A. TIMES (Aug. 16, 2016, 5:00 AM), http://www.latimes.com/opinion/editorials/la-ed-police-hate-20160816-snap-story.html (explaining Representative Ken Buck’s “Blue Lives Matter Act...