Kansas Attorney General Opinion 1992-135

ROBERT T. STEPHAN
ATTORNEY GENERAL October 20, 1992
ATTORNEY GENERAL OPINION NO. 92- 135
Vern Jarboe
Topeka City Attorney
215 E. 7th Street, Room 353
Topeka, Kansas 66603-3979
Re: United States Constitution--First Amendment--
Constitutionality of an Ethnic Intimidation
Ordinance
Synopsis: An ordinance increasing the penalty for certain
crimes when the crimes are motivated by bigotry
does not violate the first amendment to the United
States constitution. Cited herein: U.S. Const.,
Amend I.
Dear Mr. Jarboe:
As attorney for the city of Topeka you request our opinion
whether a proposed "hate crimes" ordinance would violate the
first amendment to the United States constitution.
There are two general categories of legislation aimed at
ethnic intimidation. One type of legislation bumps up the
penalty when the commission of one of a given list of criminal
defenses is motivated by bigotry. These types of ordinances
are generally based on model legislation developed by the
Anti-Defamation League of B'nai Birth (ADL). Civil Rights
Division, ADL Legal Affairs Department, ADL Law Report:
Hate Crimes Statuts: A response to Anti-Senitisu,
Vandalism, and Violent Bigotry. (The text of the model
legislation along with the ethnic intimidation statutes from

other states which are discussed herein, are set forth in the
appendix, infra.) A second type of legislation directly
criminalizes specific acts such as placing a burning cross
in a location where it can be seen publicly and is likely to
cause offense.
The proposed Topeka ordinance is a "bump up" ordinance and was
taken from Wichita's ethnic intimidation ordinance. It
provides, in relevant part:
"5.01.010 Ethnic intimidation or bias
crimes. (a) Any person who violates or
attempts to violate any of the following
ordinances of the Code of the City of
Wichita, Kansas, by reason of any motive
or intent relating to, or any antipathy,
animosity or hostility based upon, the
race, color, gender, religion, national
origin, age, sexual orientation, ancestry,
disability, or handicap of another
individual or group of individuals shall
be guilty of a misdemeanor:
"1. Chapter 5.10, Assault and Battery;
"2. Chapter 5.24, Disorderly Conduct:
"3. Section 5.66.010, Criminal Damage to
Property;
"4. Section 5.66.050, Criminal Trespass;
"5. Chapter 5.82, Interfering with
Telephone Service;
"6. Section 5.88.060, Draw Deadly Weapon;
"7. Section 5.88.010, Carry Concealed
Weapon;
"8. Section 5.88.020, Carry or Possession
of Unconcealed. Weapon;
"9. Section 5.88.030, Discharging;
"10. Section 5.88.060, Draw Deadly Weapon.
"(b) Any person who, by reason of any
motive or intent relating to, or any
antipathy, animosity or hostility based
upon, the race, color or gender, religion,
national origin, age, sexual orientation,
ancestry, disability, or handicap of
another individual or group of individuals
knowingly assemble with two or more
persons and agree with such persons to
violate any of the criminal laws of the

State of Kansas or of the United States
with force or violence shall be guilty of
a misdemeanor. (Ord. No. 41-204, § 1.)
"5.01.020 Penalty. (a) Upon a first
conviction of a violation of the
provisions of this chapter a person shall
be deemed guilty of a misdemeanor and
shall be punished by a fine of not less
than two hundred fifty dollars nor more
than two thousand five hundred dollars or
by imprisonment for not more than one
year, or by both such fine and
imprisonment.
"(b) On a second or subsequent conviction
of a violation of the provisions of this
chapter a person shall be deemed guilty of
a misdemeanor and shall be sentenced to
imprisonment of not less than five days
nor more than one year and a fine of not
less than five hundred dollars nor more
than two thousand five hundred dollars.
(Ord. No. 41-204, § 2.)"
The United States Supreme Court has not directly considered a
bump-up ordinance. In R.A.V. v. City of St. Paul, 505 U.S.
, 112 S.Ct. 2538, 120 L.Ed.2d 305 (1992), the Court
addressed the constitutionality of a city ordinance which
banned display of symbols -- including burning crosses -- that
arouse anger in others on basis of race, color, creed,
religion, or gender. The Court held the ordinance facially
violative of the first amendment. The majority opinion said
that even if limited to "fighting words," the ordinance was
invalid because only fighting words which contained a specific
content -- racial hatred -- were prohibited.
The Court stated the following rule: "The government may not
regulate use [of fighting words] based on hostility -- or
favoritism -- towards the underlying message expressed." 120
L.Ed.2d at 320. The court applied this rule to the facts:
"St. Paul has not singled out an
especially offensive mode of expression --
it has not, for example, selected for
prohibition only those fighting words that
communicate ideas in a threatening (as
opposed to a merely obnoxious) manner.

Rather, it has proscribed fighting words
of whatever manner that communicate
messages of racial, gender, or religious
intolerance. Selectivity of this sort
creates the possibility that the city is
seeking to handicap the expression of
particular ideas." 120 L.Ed.2d at 324-25.
Does R.A.V. apply to a "bump-up" hate crimes statute? At
least two courts think it does. In State v. Wyant, 597
N.E.2d 450 (Ohio 1992) and State v. Mitchell, 485 N.W.2d 807
(Wis. 1992), two different state supreme courts held
unconstitutional their states' respective "bump-up" ethnic
intimidation statutes. Ohio Revised Code § 2727.12 (Anderson
1987); Wis. Stat. § 939.645 (Wis. 1991 Supp.).
Both courts relied on the same analysis, one first suggested
in a law review article: Gellman, Sticks and Stones Can
Put You in Jail, But Can Words Increase Your Sentence?
Constitutional and Policy Dilemmas' of Ethnic Intimidation
Laws, 39 U.C.L.A. L. Rev. 333, 363 et seq. (1991). The
analysis suggested makes a distinction between motive and
intent, motive being "an actor's reason for acting" and intent
being something more closely related to the action or means of
achieving a purpose. 39 U.C.L.A. L. Rev. at 364 citing W.
LaFaue & A. Scott, Criminal Law § 3.6 at 227 (2nd ed.
1986).
The next step of analysis is to note, quite correctly, that
motive is not normally an element of a crime. The final step,
then, is the assertion that motive may not be an element of
a crime and to do so constitutes a violation of first
amendment rights. It is this last step in the analysis that
is troublesome -- concluding that the government may not
criminalize actions based on motive. The Ohio court quoted a
number of United States Supreme Court cases for the
proposition that motive can not be criminalized. 597 N.E.2d
at 456-57. The quotes, however, are taken some what out of
context.
In the case of "bump-up" statutes the underlying conduct at
issue is not protected conduct, and further, it is by
definition criminal conduct. All cases cited by the Ohio
Court for the proposition that motive may be criminalized
concern matters other than criminal conduct. For instance,
the Ohio court quotes from Abood v. Detroit Bd. of
Edu., 431 U.S. 209, 234-35 (1977):

"'[A]t the heart of the First Amendment is
the notion that an individual should be
free to balance as he will, and that in a
free society one's beliefs should be
shaped by his mind and his conscience
rather than coerced by the State.'" 597
N.E.2d at 456-57.
Abood is a case in which the court considered the extent
to which a "closed shop" arrangement violated an employee's
first amendment rights. The case factually has nothing to do
with unprotected criminal conduct.
Both the Ohio and Wisconsin courts cite R.A.V. for support
for their positions. 597 N.E.2d at 459; 485 N.W.2d at
814-15. The Wisconsin court quoted the following from
R.A.V.:
"[T]he only interest distinctively served
by the content limitation is that of
displaying the city council's special
hostility towards the particular biases
thus singled out. That is precisely what
the First Amendment forbids. The
politicians of St. Paul are entitled to
express that hostility -- but not through
the means of imposing unique limitations
upon speakers who (however benightedly)
disagree." State v. Mitchell, 485,
N.W.2d at 185.
The Wisconsin court then said of R.A.V.:
"The ideological content of the thought
targeted by the hate crimes statute is
identical to that targeted by the St. Paul
ordinance--racial or other discriminatory
animus. And, like the United States
Supreme Court, we conclude that the
legislature may not single out and punish
that ideological content." 485 N.W.2d at
815.
Both state courts miss the essential point about R.A.V.
R.A.V. concerned conduct which is in and of itself protected
conduct -- speech and other conduct which is inherently
expressive. The conduct at issue before the state courts was

different; it was by definition criminal and not protected.
R.A.V. simply does speak to the facts at issue.
One other state has considered a "bump-up" ethnic intimidation
statute. In State v. Plowman, 314 Or. 157, P.2d
(1992), the Oregon Supreme Court upheld Oregon's version of
this type of statute. See Or. Rev. Stat. § 166.165 (1990).
See also Or. Rev. State. § 166.166 (1990). In doing so,
the court relied primarily upon the fact that the Oregon
statute required that two or more persons must act together,
something not required by other state's statutes (although the
relevance of this is not entirely apparent.) The court went
on to say, as to the challenge that the statute penalizes
beliefs: "We also reject the broader argument that ORS
166.165(1)(a)(A) proscribes opinion. Rather than proscribing
opinion, that law proscribes a forbidden effect: the effect
of acting together to cause physical injury to a victim." 314
Or. at 165. The court held that on this basis, R.A.V. was
inapplicable:
"The [U.S.] Court distinguished laws, such
as the St. Paul ordinance, that are
directed against the substance of speech
from laws that are directed against
conduct. With respect to the latter, the
wrote:
"'Where the government does not target
conduct on the basis of its expressive
content, acts are not shielded from
regulation merely because they express a
disciplinary idea or philosophy.'
"As discussed . . ., ORS 166.165(1)(a)(A) is a law directed
against conduct, not a law directed against the substance of
speech." 314 Or. at 168.
Although the Kansas statute does not necessarily require
action between two or more persons, we believe that the basis
of the Oregon court's analysis is correct. These types of
ethnic intimidation statutes do not punish based on opinion;
they punish actions which are already illegal when motivation
for the action is, in part, derived from an opinion. As such
there is no first amendment right at issue.
It is worth noting that restricting an action based on
motivation is not without precedent, although such
restrictions are found in the civil arena. Title VII of the

civil rights act of 1974 prevents certain employment practices
and decisions "because of such individual's race, color,
religion, sex or national origin. . . ." 42 U.S.C. §
2000e-2. Title VII, then, by its terms, prohibits certain
conduct when it is based on certain motivations.
Gellman and the Ohio court reason that Title VII does not
speak to an employer's motivations in discriminating. 39
U.C.L.A. L.Rev. at 368; 597 N.Ed.2d at 456. They conclude
that because Griggs v. Duke Power Co., 401 U.S. 424
(1971), interprets Title VII to prohibit discrimination based
on disparate impact," discriminatory motive is irrelevant."
This ignores the fact that Title VII also prevents disparate
treatment, i.e., purposeful discrimination.
The ethnic intimidation ordinance proposed by Topeka, and in
place in Wichita, criminalizes certain unprotected (and
already criminal) conduct, when the conduct is motive in part
by the actor's racial bigotry. We believe that the Ohio and
Wisconsin courts' analysis is incorrect and that a governing
body may constitutionally regulate and prohibit conduct based
on motive, when the underlying conduct is not constitutionally
protected and is in and of itself already criminal. We
believe the proposed ordinance to be valid.
Very truly yours,
ROBERT T. STEPHAN
Attorney General of Kansas
Steve Phillips
Assistant Attorney General
RTS:JLM:SP:jm

APPENDIX
The ADL model statute provides:
"Intimidation
"A. A person commits the crime of
intimidation if, by reason of the actual
or perceived race, color, religion,
national origin or sexual orientation of
another individual or group of
individuals, he violates Section of
the Penal Code [insert code provision for
criminal trespass, criminal mischief,
harassment, menacing, assault and/or any
other appropriate statutorily proscribed
criminal conduct].
"B. Intimidation is a
misdemeanor/felony [the degree of criminal
liability should be made contingent upon
the severity of the injury incurred or the
property lost or damaged].
The Ohio ethnic intimidation statute provided
"(A) No person shall violate section
2903.21 [aggravated menacing], 2903.22
[menacing], 2909.06 [criminal damaging or
endangering], 2909.07 [criminal mischief]
or division (A)(3)(4), or (5) of section
2917.21 [telephone harassment] of the
Revised Code by reason of the race, color,
religion, or national origin of another
person or group of persons.
"(B) Whoever violate this section is
guilty of ethnic intimidation. Ethnic
intimidation is an offense of the next
higher degree than the offense the
commission of which is necessary element
of ethnic intimidation."
The Wisconsin statute provided

"If a person does all of the following,
the penalties for the underlying crime are
increased as provided in sub. (2):
"(a) Commits a crime under chs. 939 to
948.
"(b) Intentionally selects the person
against whom the crime under par. (a) is
committed or selects the property which is
damaged or otherwise affected by the crime
unde par. (a) because of the race,
religion, color, disability, sexual
orientation, national origin or ancestry
of that person or the owner or occupant of
that property.
"(2)(a) If the crime committed under sub.
(1) is ordinarily a misdemeanor other than
a Class A misdemeanor, the revised maximum
fine is $10,000 and the revised maximum
period of imprisonment is one year in the
county jail.
"(b) If the crime committed under sub (1)
is ordinarily a Class A misdemeanor, the
penalty increase under this section
changes the status of the crime to a
felony and the revised maximum fine is
$10,000 and the revised maximum period of
imprisonment is 2 years.
"(c) If the crime committed under sub.
(1) is a felony, the maximum fine
prescribed by law for the crime may be
increased by not more than $5,000 and the
maximum period of imprisonment prescribed
by law for the crime may be increased by
not more than 5 years.
"(3) This section provides for the
enhancement of the penalties applicable
for the underlying crime. The court shall
direct that the trier of fact find a
special verdict as to all of the issues
specified in sub. (1).

"(4) This section does not apply to any
crime if proof of race, religion, color,
disability, sexual orientation, national
origin or ancestry is required for a
conviction for that crime. Wis. Stat.
Annot. § 939.645 (West 1991 Supp.) (The
statute was amended slightly in 1992. The
amendments do not appear relevant. See
Wis. Stat. Annot. § 939.645 (West 1991
Supp.).
The Oregon statute at issue provides:
"(1) Two or more persons acting together
commit the crime of intimidation in the
first degree, if the persons:
"(a)
"(A) Intentionally, knowingly, or
recklessly cause physical injury to
another because of their perception of
that person's race, color, religion,
national origin, or sexual orientation; or
"(B) With criminal negligence cause
physicalinjury to another by means of a
deadly weapon because of their perception
of that person's race, color, religion,
national origin or sexual orientation;
"(b) Intentionally, because of race,
color, religion, national origin or sexual
orientation of another, place that person
in fear of imminent serious physical
injury; or
"(c) Commit such acts as would constitute
the crime of intimidation in the second
degree, if under taken by one person
acting along.
"(2) Intimidation in the first degree is
a Class C felony.
"(3) 'Sexual orientation' has the meaning
given that term in ORS. Or. Rev. Stat.
S 166.165 (1990).

Oregon also has a statute on intimidation in the second
degree. It was not at issue. It provides:
"(1) A person commits the crime of
intimidation in the second degree is the
person:
"(a) Tampers or interferes with property,
having no right to do so nor reasonable
ground to believe that the person has such
right, with the intent to cause
substantial inconvenience to another
because of the person's perception of the
other's race, color, religion, national
origin or sexual orientation;
"(b) Intentionally subjects another to
offensive physical contact because of the
person's perception of the other's race,
color, religion, national origin or sexual
orientation; or
"(c) Intentionally, because of the
person's perception of race, color,
religion, national origin or sexual
orientation of another or of a member of
the other's family, subjects such other
person to alarm by threatening;
"(A) To inflict serious physical injury
upon or to commit a felony affecting such
other person, or a member of the person's
family; or
"(B) To cause substantial damage to the
property of the other person or of a
member of the other person's family.
"(2) Intimidation in the second degree is
a Class A misdemeanor. Or. Rev. Stat. §
166.155 (1990).