JURIST Guest Columnist Jessica Henry of Montclair State University discusses the recent additions to Louisiana’s hate crime legislation…

Last month, Louisiana passed a “Blue Lives Matter” amendment to its hate crime statute. Under the newly-amended law, it is now a hate crime in Louisiana to target someone’s “person or property” for a crime “because of actual or perceived employment as a law enforcement officer or firefighter.” The definition of “law enforcement officer” under the amended law is expansive and includes active or retired law enforcement officers, peace officers, wildlife enforcement agents, correctional officers and parole and probation officers.

According to state Republican Senator Lance Harris, who sponsored the bill, additional measures were needed to protect state officers in Louisiana. Citing police shootings in New York and Texas, the Louisiana senator explained: “if you’re going to have an extensive hate crime statute then we need to protect those that are out there protecting us on a daily basis.”

In signing the bill, Louisiana Governor John Bel Edwards echoed these sentiments: “The men and women who put their lives on the line every day, often under very dangerous circumstances are true heroes and they deserve every protection that we can give them. They serve and protect our communities and our families. The overarching message is that hate crimes will not be tolerated in Louisiana.”

Police officers serve an incredibly important function: they protect our communities, resolve conflicts and prevent and solve crime. Policing is a challenging and difficult job. But Louisiana’s leap from the premise that law enforcement officers have an important job to the conclusion that law enforcement officers need hate crime protections is largely unsupported.

First, Louisiana—and another 36 states—already have laws that increase penalties for police assaults. In Louisiana, for instance, battery involving an officer has greater penalties than a typical battery. In states that retain the death penalty, killing a police officer can be an aggravating factor that elevates the crime to a capital case. As these laws demonstrate, attacks against officers are in many instances already punished more severely than other kinds of crimes.

Second, attacks against police officers, particularly lethal ones, against police officers are at their lowest rates in decades. Nationally, fatal shootings of officers have decreased from an average of 127 in the 1970s to around 57 per year between 2000 and 2009. In 2015, 42 officers were fatally shot compared with 49 in 2014. In Louisiana, in 2015, there were nine officer fatalities and no officer fatalities so far this year. While even one officer shot and killed in the line of duty is tragic, there is no empirical evidence that lethal attacks, specifically targeting law enforcement officers, are on the rise.

Third, Louisiana’s hate crime law already contained language that seemingly applied to crimes against police officers because of their occupation. Prior to the amendment, Louisiana law already provided enhanced punishments to people who “select the victim…because of actual or perceived membership or service in, or employment with, an organization.” In other words, Louisiana’s hate crime law included crimes committed because of actual or perceived employment with an organization, which would likely cover crimes targeted against law enforcement.

So why the hate crime amendment?
The first hate crime laws were enacted in the mid-1980s. Now nearly every state and the federal government has some form of hate crime law. These laws, in varying degrees, distinguish “ordinary” crime from those crimes motivated by specifically designated prejudices. Hate crime laws typically provide enhanced penalties for crimes motivated, in whole or in part, by bias or prejudice based on a victim’s actual or perceived group affiliation. Some jurisdictions—including the federal government—have designated a hate crime as a separate substantive offense. Most hate crime statutes protect against groups that have historically been targets of bigotry; hate crime statutes across all states most commonly prohibit crimes based on race, religion and ethnicity.

Hate crime laws are popular because they send a largely symbolic governmental message that crimes motivated by certain types of bigotry will not be tolerated. As one scholar explained, hate crime laws are largely perceived as expressing:

Strong social condemnation of bias crimes…[C]ondemnation of hate crimes implies a general affirmation of the societal value of the groups targeted by hate crimes and a recognition of their rightful place in society. Hate crimes legislation is seen as reinforcing the community’s commitment to equality among all citizens.

And therein lies the rub. If hate crime laws send a message of equality and inclusion, then hate crime laws also can send messages of intolerance and exclusion.

Take, for instance, the Hate Crimes Statistics Act of 1990 (HCSA), which requires law enforcement agencies to collect hate crimes data and report their finding to the FBI. The HCSA mandated the collection of data about hate crimes motivated by bias based on sexual orientation. But conservative senators balked at the inclusion of sexual orientation. And the only way that the HCSA was passed was with the inclusion of compromise language, insisted upon by conservative senators, including Senator Jesse Helms, which stated that “nothing in this Act shall be construed . . . to promote or encourage homosexuality.” In other words, the HSCA, designed to capture the scope of hate crime in the United States, was accompanied by a governmental message of bigotry toward members of the LGBT community.

This message of inclusion and exclusion continues today. Some states passed hate crime laws that include race, ethnicity and religion, but explicitly do not include sexual orientation or gender identity. And let’s be clear, members of the LGBTQ community are targets of hate crimes. If the recent Orlando massacre at a gay club did not already prove that terrible truism, then just take a look at the FBI hate crime data, which shows that LGBT people are twice as likely to be targeted as African-Americans, and are targeted more frequently than Jews. When a state passes a hate crime law but omits sexual orientation and gender identity from its hate crime protections, a governmental message is arguably being communicated and it is not one of equality and tolerance for all.

The Anti-Defamation League, which helped originate the first hate crime laws and has authored model legislation that was adopted by states throughout the country, took a position against the Blue Lives Matter amendment. The ADL argued that hate crime laws should not include professional groups because that is not an immutable characteristic. That, too, is up for some debate, as certain states have included the category of being homeless (not immutable) or political affiliation (also not immutable) within its hate crime law parameters. Proponents of hate crime laws have expressed concern that the inclusion of characteristics such as employment dilutes the force and purpose of hate crime laws which, at least at their inception, were envisioned as protecting people who are targeted simply for being who they are.

The decision to include a group within a hate crime law can send a message that is more divisive than protective. Louisiana’s decision to pass hate crime protections for a wide-range of law enforcement personnel seems unnecessary and superfluous given other existing state laws, and given the lack of evidence that officers are, indeed, frequent targets of hate crimes. Yet, in a state with a Republican congress and a Democratic governor who do not often agree, this bill sailed through the legislative process to passage.

Other states and the federal government are considering the passage of similar legislation. They would be wise to think carefully before doing so.

After serving as a public defender for nearly a decade, Professor Henry joined the Montclair State University faculty, where she is an Associate Professor in the Department of Justice Studies. Professor Henry was awarded the 2015 University Distinguished Teacher Award in recognition of her excellence in teaching. Professor Henry has appeared as a frequent commentator on national television, radio, and in print media, and is a frequent blogger with the Huffington Post and the Wrongful Convictions blog. Her areas of research include wrongful convictions, hate crimes, the death penalty and life without parole, and she teaches a wide range of classes, including a course on Hate Crimes.

Suggested citation: Jessica Henry, “Blue Lives Matter” Has No Place in Hate Crime Laws, JURIST – Forum, June 29, 2016, http://jurist.org/forum/2016/07/jessica-henry-hate-crimes.php.