Hate Crimes are OK in South Carolina

I feel that this is a time when silence is equivalent to complicity. People who care keep asking, “what can I do?” You do what you can in the circumstances you find yourself in.

What I can do is speak publicly to the few people who read this blog. I can speak to people I know. I can speak to judges, prosecutors, and fellow attorneys who shape our state and our nation’s laws.

The racists we are seeing on the news nationwide are not the extent of the problem. They are the tip of the iceberg. They are activists who represent the views of less out-spoken millions of Americans across the country, in every state and every community. We have come to a time when there is no longer confusion as to where people stand, if we pay attention. There is no longer any rational question about who our President and various members of his administration are and what they stand for. There is no longer a rational question about what you stand for if you support them, make excuses for them, or attempt to explain their actions. I will no longer accept or excuse the purposeful misdirection that now, more than ever, clearly says, “I am a racist.”

Perhaps we can start a movement where people call things for what they are and reject the ridiculous alternate language of American racism?

Seriously? Hate Crimes Aren’t Ok in South Carolina…

South Carolina is one of only five states in the country that has refused to criminalize hate crimes. As in the days of reconstruction, the federal government had to step in and prosecute Dylann Roof in Charleston, S.C. for hate crimes because hate crimes are not illegal under South Carolina law. We are also the proud home of at least 12 active hate groups.

Our state’s legislators refused to pass hate crime legislation. When the federal government passed hate crime legislation, our own Senator Jim Demint, representing his constituency of white republican South Carolinians, spoke out against it:

“Today only actions are crimes. If we pass this legislation, opinions will become crimes,” said Demint in October of 2009.

That was before the federal hate crimes law was passed, and Demint spoke out against it. He said he believed the legislation would hurt people’s freedom of opinion.

“This legislation essentially makes certain ideas criminal in that those ideas involved in a crime makes that crime more deserving of prosecution,” Demint continued in his speech to Congress in 2009. “The problem, of course, is that politicians are claiming which thoughts are criminal and which are not.”

Demint went on to say that individuals are already protected from hate crimes by the 14th Amendment, and he believed adding a new law, specific to certain characteristics of a victim, would hinder what is already in place.

“This amendment creates a special class of victims whose protections by the law will be, in Orwell’s phrase, ‘more equal than others,'” Demint continued. “If some are more equal, others will be less equal. This amendment will create the very problem it purports to solve.”

Sounds reasonable, right? This isn’t politics. If you think that this sounds reasonable, it is not because you are a Republican or a Democrat. Our state is infected with hatred and racism. Sometimes it is open and unapologetic. More often it is purposefully obscured by vague statements and feigned ignorance. Sometimes it is the result of legitimate and unfortunate ignorance. Those who see it need to start calling it what it is.

But, White Supremacists are Protected by the Constitution!

Yes they are. I will tirelessly fight to defend the Constitution and your rights under the First Amendment, including your right for the government not to interfere with your expression of political beliefs and to practice the religion of your choosing.

For clarification, the First Amendment protects you from government interference. If you post racist crap in the comments on my blog, I will unapologetically delete you. I am not the government and you do not have a First Amendment right to spew racist ideology on my website, my Facebook page, or on any forum that I own or control.

The First Amendment protects your right to express your views and to gather for protest or rallies. When your actions inspire violence and hurt others, you lose that protection.

What Crimes Can Hate Groups Be Charged With?

First, let’s acknowledge that South Carolina law enforcement, lawyers, prosecutors, judiciary, legislators, and even the defense bar is infected with racist individuals who, for the most part, keep quiet about their views. Our government is a reflection of our state’s population.

We don’t have hate crimes in South Carolina. For those in power who would like to do something, what tools do you have to combat hate groups who incite violence in our state? Depending on the circumstances, there are many including:

Breach of Peace: In South Carolina, we have misdemeanor offenses under state and municipal laws for breach of peace, disorderly conduct, and interference with law enforcement. In most cases, these are 30-day offenses in the lower courts that are typically punished by a fine. Regardless of the language in the municipal code, statute, or cases defining the elements of these crimes, they are unconstitutional as applied to political speech and criticism of authority. They are not unconstitutional as applied to “fighting words,” or any language that tends to incite violence…

Breach of Peace of a High and Aggravated Nature: increases the penalty to up to ten years. It is a common-law offense defined by caselaw, and the definition of high and aggravated is purposefully vague to allow prosecution in a wide range of situations:

Magistrates may cause to be arrested (a) all affrayers, rioters, disturbers and breakers of the peace, (b) all who go armed offensively, to the terror of the people, (c) such as utter menaces or threatening speeches and (d) otherwise dangerous and disorderly persons. Persons arrested for any of such offenses shall be examined by the magistrate before whom they are brought and may be tried before him. If found guilty they may be required to find sureties of the peace and be punished within the limits prescribed in § 22–3–560 or, when the offense is of a high and aggravated nature, they may be committed or bound over for trial before the court of general sessions.

Wearing Masks: S.C. Code Section 16-7-110 makes it a criminal offense that carries up to one year in prison for any person over the age of 16 to wear a mask or otherwise conceal their identity in public in South Carolina, with obvious exceptions for holidays and theatrical productions. This statute applies equally to alt-right provocateurs and the antifa that are answering their call.

Burning Crosses: S.C. Code Section 16-7-120 makes it a criminal offense that carries up to one year in prison for any person to burn a cross in a public place or on any other person’s property without their written permission.

Offenses During State of Emergency: During the recent events in Charlottesville, Virginia, Virginia’s governor declared a state of emergency. In South Carolina, we also have specific criminal provisions that apply once the governor has declared a state of emergency – an action that should be taken without hesitation by our governor if and when similar violence breaks out in our state. S.C. Code Section 16-7-10 makes it a crime to violate any provision of the proclamation issued by the governor including:

  • Curfews;
  • Congregating in groups of three or more and refusing to disperse upon order of a law enforcement officer; and
  • Refusing to comply with the lawful order of a law enforcement officer.

What Can I Do?

Stop accepting half-truths and purposeful misdirection from elected officials. Look at America’s ugly racist underbelly, drive it back underground, and continue working to change the hearts and minds of the people around you.

Speak out to fellow legislators and be an instrument of change for our state. Introduce and support legislation that will be a check on our state’s racist citizens, law enforcement officers, and government officials. Do not let fear of losing re-election destroy your ideals and moral compass.

Take unpopular cases and do not be afraid to call out racism and bigotry when you see it in the courtroom. Do not remain silent out of fear that you will lose business or that you will suffer blowback from racists.

Tell racist family members and friends that their ideas are no longer acceptable and you will no longer tolerate the hate. Teach your children to do the same.

Strive for acceptance of people who are not like you, but settle for tolerance if you have to. Speak truth to power. Do whatever you can, within the bounds of the law and ethics, to make this life better for every person you meet every day.

 

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