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Hate-crimes law is ruled constitutional

Utah's much disputed hate-crimes statute is constitutional, a federal judge has ruled.

As the first definitive decision on the legality of the 1992 law, U.S. District Judge Dale A. Kimball's order will likely quell arguments on that front. It will not, however, quiet criticism that the statute does not do what it was intended to do — prevent hate crimes.

"The problem with the statute is that it doesn't deal with hate crimes," said Assistant Attorney General Jerrold Jensen, who successfully defended the 11-year-old law. "It's misnamed."

Kimball's ruling comes out of a civil-rights case brought by an animal-rights activist charged under the law nearly three years ago. Eric Ward challenged the constitutionality of the statute, claiming it violated his First Amendment rights to free expression.

Kimball tossed out Ward's argument that the law was too broad to sustain a conviction because it failed to enumerate specific classifications of protected people. Proponents of a more specific law, including the late state Sen. Pete Suazo and Rep. David Litvack, D-Salt Lake, have tried unsuccessfully for six years to pass one through the Utah Legislature.

Unlike other statutes around the country, Utah's law focuses on the intent of the perpetrator rather than the status of the victim. It targets any action that intends to "intimidate or terrorize" another person to keep him from exercising his constitutional rights.

The most recent proposal, brought by Litvack in the 2003 legislative session, would have amended the statute to include race, color, disability, religion, sexual orientation, national origin, ancestry, age or gender. The measure never made it out of the House.

In a previous challenge, the Utah Court of Appeals noted that the law should actually be titled the "Exercise of Rights" statute because with its lack of classifications it was not a true hate-crimes law.

In that state case, the court ruled that the law could not be used to prosecute a racially motivated crime that did not infringe upon the victim's constitutionally protected rights.

"(Kimball's ruling) confirms the Utah appellate court that this is not a hate-crimes statute and it's an exercise-of-rights statute," Jensen said. "(All it says is) that it is constitutional to enhance the crime when someone denies another person the exercise of their constitutional rights."

Although the law may now bear the labels of "hate crimes" and "constitutional," Litvack said that won't change the fact that it fails to give proper direction as to who may be charged under the statute, and when.

"If prosecutors are unwilling to test the statute even further, then it remains the fact that we do not have an effective statute," he said.

Ward was arrested in November 1999 after burning a mink stole outside the Magna home of the owners of a Salt Lake fur salon. Prosecutors relied upon the hate-crime law to increase Ward's disorderly conduct charge from a misdemeanor to a felony.

Because Utah's law is a penalty enhancement statute and can only be used if a person first commits another crime that is not constitutionally protected, such as an assault, trespass or theft, Kimball ruled that the law was not unconstitutionally overbroad.

"There is no substantial overbreadth given the penalty enhancement nature of the statute," Kimball wrote. "Under the statute, not only must the person commit an underlying offense during the protest or demonstration, but he must commit that offense and commit an act which causes the victim to fear for his physical safety or which damages the property of that person or another."

The statute could not be used to punish constitutionally protected speech, the judge said, because that would never cause a person to fear for his physical safety. If it did, Kimball noted, the speech would have crossed the line and be considered hate speech, which is not protected under the First Amendment.

Kimball initially dismissed Ward's case, but the decision was overturned by the 10th U.S. Circuit Court of Appeals earlier this year. The appeals court sent the case back to Utah's federal court for a determination on the merits of the case.


E-mail: awelling@desnews.com