Analysis | Will recent U.S. shootings be labeled as hate crimes?

Following two recent shootings that rattled the Asian American community, The Panther sat down with Peter Levi, the regional director of the Anti-Defamation League’s Orange County/Long Beach division to discuss the legal basis of what constitutes a hate crime. Graphic by HARRY LADA, Art Director

Eight people were murdered after a March 13 shooting in Atlanta, Georgia, six of whom were women of Asian descent. Charged with eight counts of murder and one count of aggravated assault, the 21-year-old suspect evaded classification as perpetrator of a hate crime — at least, for the time being — and the nation sprung into action to show solidarity for the Stop Asian American and Pacific Islander (AAPI) Hate Movement.

“A motive is still not clear,” said Atlanta Mayor Keisha Lance Bottoms. “But a crime against any community is a crime against us all.”

Exactly a month later, eight more people were murdered in an April 13 shooting at a FedEx warehouse in Indianapolis, Indiana, four of whom identified as Sikh. Falling under the Asian diaspora, the attack renewed questions from the surrounding, abundant Sikh population of whether the crime was based on ethnic discrimination —a further demonstration of violence and hate against the AAPI community.

“I’ve been scared to go back,” said Ajeet Singh, an employee at the FedEx facility. “I don’t know why this happened still. Was it random, or was it because of who I am?”

Janine Kim, a criminal law professor in Chapman’s Dale E. Fowler School of Law, explained that in order for either offense to meet the criteria of a hate crime, the prosecutor must be able to prove in court that the suspect was motivated in whole or in part by some actual or perceived characteristic of the victims.

“I don't know that a hate crime designation has been taken off the table yet in those cases,” Kim wrote to The Panther in an email. “It will depend on the amount of evidence available and whether the prosecutor believes that the evidence they have is sufficient to meet the beyond-a-reasonable-doubt burden of proof.”

Peter Levi, the regional director of the Anti-Defamation League’s (ADL) Orange County/Long Beach division, further explained that a hate crime charge is generally not the first to come out, given the length of time required for thorough investigation. ADL assists in this process by bringing experts on site to identify xenophobic iconography and look for a precedent of extremist affiliation in suspects’ pasts.

In the most recent 2019 Hate Crime Statistics, the U.S. Department of Justice (DOJ) accumulated reports from 15,588 law enforcement agencies that revealed 7,314 hate crime incidents out of 8,559 offenses. Of the 6,406 known offenders for this reporting year, 52.5% were white.

The two separate attacks parallel a trend of raging anti-Asian sentiment on a national level. In 2020, anti-Asian hate crimes surged by nearly 150% in 16 of America’s largest cities. Levi revealed that Orange County is one of many regions serving as a hub for radical individuals and alt-right groups targeting the AAPI community.

“We actually have so many anti-Asian crimes going on right now, even if it’s just graffiti,” Levi told The Panther. “This can still be harmful because it’s messaging to an entire group of people, which can still be considered a hate crime ... The punishment should fit the crime. If the crime isn’t just against one person but a whole community, then it deserves an enhanced punishment.”

Orange County is a hotspot for white supremacist activity, with various organizations leaving propaganda on Chapman campus several times in the last two years. ADL’s Hate, Extremism, Anti-Semitism and Terrorism Map indicates that 12 distribution incidents of white supremacist propaganda have occurred in the City of Orange within the last year, along with three instances of anti-Semitic activity.

Founded in 1913, the ADL initially arose in response to mounting national anti-Semitism, with the additional goal of securing “justice and fair treatment to all.” Levi joined the group in 2016 following a decade of working as a congressional rabbi. Though in part driven to the position by his own Jewish identity, Levi emphasized the importance of centering one’s activism on the defamation of all marginalized groups rather than just the one they are affiliated with.

“It’s always been foundational from the very beginning that when you fight against hatred, you have to fight against all hatred — that we all sink or swim together on this,” Levi said. 

ADL is responsible for constructing the first U.S. model hate crime legislation in 1981, which was then partially adopted by the District of Columbia and 47 states — most recently in Georgia June 26, 2020. The legislation was largely derived from precedent set in the 1993 court case Wisconsin v. Mitchell, where it was established that penalty enhancement is valid for crimes motivated by discriminatory beliefs, but that the statute cannot be applied to free speech under the First Amendment.

Only three states currently lack hate crime laws: Arkansas, South Carolina and Wyoming. However, South Carolina is reviewing a hate crime bill on the state’s Senate floor, and Arkansas is in the process of constructing similar legislation, though avoiding use of the term “hate crime” in the legal document.

Of the 47 states that offer hate crime protections, 17 do not require data collection on each claim, which impedes the DOJ from obtaining accurate census data to compile hate crime statistics. Levi expects the 2020 federal report to be released this coming November, but announced that ADL would be providing their annual report later this week.

“A lot of hate incidents, as well as crimes, never even get reported in the first place,” Levi said. “I don’t want to imply any malice on why law enforcement does or doesn’t report, but we just know it’s not happening everywhere. So let’s give them the training, let’s give resources, let’s rig the mechanisms so it can happen.”

Whether it’s negligence or an inability to distinguish the crime as motivated by personal bias, 81 cities across the nation in 2019 either did not report any information on hate crimes or opted to put zero. Levi argued that hate crimes may still be happening in these locations, but are not being labeled as such. He used the example of an assault on a trans person of color, where the suspect is charged with physical assault, but not investigated for bias based on race or gender.

“Reporting creates data, and data drives policy,” Levi said. “It’s not that it’s not happening; it’s just that (law enforcement agencies) are not recognizing them as hate crimes or reporting it.”