Martin Luther King Jr. famously stated at the March on Washington on August 28th, 1963 - "I have a dream that my four little children will one day live in a nation where they will not be judged by the color of their skin, but by the content of their character."
These powerful words helped propel the civil rights movement forward and led to substantial changes in law and policy to break down barriers based on race, color, religion, gender or national origin. One of the lasting results in this movement is that state legislatures have passed laws categorizing conduct as "hate crimes" and providing special penalties for such violations.
Michigan also joined this trend and passed legislation in 1988 outlawing "hate crimes" and "ethnic intimidation." The statute provides civil and criminal penalties as follows:
- "A person is guilty of ethnic intimidation if that person maliciously, and with specific intent to intimidate or harass another person because of that person's race, color, religion, gender, or national origin, does any of the following:"
- "Causes physical contact with another person." MCL 750.147b(1)(a).
- "Damages, destroys, or defaces any real or personal property of another person." MCL 750.147b(1)(b).
- "Threatens, by word or act, to do an act described in subdivision (a) or (b), if there is reasonable cause to believe that an act described in subdivision (a) or (b) will occur." MCL 750.147b(1)(c).
- "Ethnic intimidation is a felony punishable by imprisonment for not more than 2 years, or by a fine of not more than $5,000.00, or both." MCL 750.147b(2).
- "Regardless of the existence or outcome of any criminal prosecution, a person who suffers injury to his or her person or damage to his or her property as a result of ethnic intimidation may bring a civil cause of action against the person who commits the offense to secure an injunction, actual damages, including damages for emotional distress, or other appropriate relief. A plaintiff who prevails in a civil action brought pursuant to this section may recover both of the following:"
- "Damages in the amount of 3 times the actual damages described in this subsection or $2,000.00, whichever is greater." MCL 750.147b(3)(a).
- "Reasonable attorney fees and costs." MCL 750.147b(3)(b).
In People v. Richards, 202 Mich App 377; 509 NW2d 528 (1993), the defendant challenged his ethnic intimidation conviction, incurred two years after the statute became effective, on the grounds that the new law "is overbroad because it sweeps protected speech within its reach, is facially invalid because it has a chilling effect on others, and is vague because it does not set reasonably clear guidelines to prevent arbitrary prosecutions." Id at 378. The defendant was reportedly threatening the victims while they were moving out of their apartment, which included shouting racial slurs, saying he would destroy property, and also stated he would shoot them with his gun. The Michigan Court of Appeals upheld the conviction, finding that "the statute does not give the trier of fact unstructured and unlimited discretion." Id at 379. "The statute is satisfied only when there is evidence of an underlying predicate criminal act committed because of racial animosity"... so "[t]hese elements are very clear and definite." Id at 379.
In People v Stevens, 230 Mich App 502 (1998), the defendant challenged his conviction of ethnic intimidation from an incident arising at a Taco Bell restaurant. The defendant was trying to order a meal when a black four year old girl pleaded for a restroom key from the cashier. The interruption apparently agitated the defendant who started shouting at the girl and her father using racial slurs and threatening to "beat his ass". The defendant apparently threw a punch but it did not actually strike the girl or her father. The Michigan Court of Appeals upheld the conviction, finding "there was ample evidence that defendant threatened, by word and act, to cause physical contact with the complainant." Id at 505. The defendant's act of throwing a punch provided reasonable cause that physical contact would occur. Defendant does not dispute throwing the punch, but denies that the threat was made due to race or gender but was due to ""an argument over an unruly child which became very heated and very ugly." Id at 505. However, the court reasoned:
- "We recognize that, in the absence of other evidence, the fact that defendant started a heated argument over a trivial matter would probably not be sufficient to allow a jury to find defendant guilty of ethnic intimidation beyond a reasonable doubt. Here, however, defendant's words provided strong evidence of a racist motive. Defendant's use of the word "nigger," his reference to the complainant as a "black bitch," and his remark that "you people shouldn't be allowed in here" explained his otherwise inexplicable actions. Taken in the light most favorable to the prosecution, this evidence was sufficient to allow the jury to conclude that defendant was guilty beyond a reasonable doubt." Id at 506.
In People v Schutter, 265 Mich App 423; 695 NW2d 360, the defendants challenged the circuit court's reinstatement of ethnic intimidation charges against them arising from a "road rage" incident. The defendants operated a vehicle on a road that swerved at a vehicle operated by a black family, which required a panic stop by both drivers to avoid a crash. One of the defendants shouted racial slurs at the other vehicle before pulling away. Both vehicles then proceeded down the road in the same direction, with defendants in the lead. The other passenger vehicle followed closely and attempted to swerve, but the defendants' vehicle slammed the brakes and forced both vehicles to stop. The black driver followed the defendants' vehicle again and ultimately confronted them outside of their vehicles. While the black driver reportedly threw a punch, the defendants were observed severely beating him while shouting racial slurs. The district court "found that defendants' assault of Robinson was not ethnic intimidation because it was motivated by "road rage," not racial intimidation or harassment", so it refused to bind over the charges against the defendants. Id at 426. The circuit court reversed the district court's decision, finding "that the statute requires only that the underlying criminal act be committed 'with specific intent to intimidate or harass' and that the intent can be formed during the commission of the underlying criminal act", even if the underlying factor was road rage. Id at 427. The circuit court reinstated the charges, so defendants appealed the judge's determination to the Michigan Court of Appeals. The defendants maintained that the racial slurs were only incidental to the road rage incident and the intent behind the beating was not for ethnic intimidation. The court reasoned:
- "Both the district court and the circuit court found that road rage was a motivating factor in defendants' assault of Robinson. Neither party challenges this finding. But testimonial evidence by three uninvolved bystanders indicates that after Robinson got out of his vehicle, defendants beat and kicked Robinson while saying, 'Fuck you, nigger. Remember this. Remember this,' and 'we're gonna get you, nigger.' Defendants' use of racial epithets and directives to "[r]emember this" give rise to a reasonable inference that defendants specifically intended to beat Robinson because of his race. When this specific intent to intimidate Robinson on the basis of his race is combined with the accompanying beating of Robinson, it can reasonably be inferred that what may have started out as merely road rage escalated into an act of ethnic intimidation. The district court abused its discretion by failing to bind defendants over on the ethnic intimidation charges. In light of the foregoing, we conclude that defendants' alleged conduct falls within the ambit of MCL 750.147b and that the evidence presented at the preliminary examination would allow a reasonable person to infer that defendants violated MCL 750.147b." Id at 430-431.
However, the ethnic intimidation statute does not specifically protect sexual orientation or gender identity issues. In People v Rogers, __ Mich App __ (issued Jan 7, 2020)(Docket No. 346348), the defendant confronted a transgender person (born a male and identifies as a woman) at a gas station in Detroit and harassed her on her gender identity. Eventually, the defendant came in close proximity to the victim with a gun and a struggle ensued. At some point during the struggle, the gun discharged and struck the victim's left shoulder. The district court bound over a charge of ethnic intimidation, saying that "transgender" fell into the statutory definition of "gender" and was covered by the statute. The circuit court quashed the bindover, finding that "gender" did not include "transgender" and was limited to a masculine, feminine or neutral identification. The Michigan Court of Appeals agreed with the circuit court, albeit for a slightly different reason. The Michigan Legislature uses the term "gender" but declines to use the term "transgender". The defendant targeted the victim for harassment not "because she is biologically male; he targeted her because she is a transgender person, which is not within the statute's ambit." While the conduct was morally unacceptable, only an act of the legislature can modify the law to provide protection to transgender individuals.
Even if the prosecutor declines to file ethnic intimidation charges, a victim can file suit in district court or circuit court to recover either three times the actual damages for emotional distress or other tortious conduct or $2,000.00, whichever is greater. A victim can also obtain a permanent injunction against the tortfeasor to prevent future conduct under penalty of contempt of court. If successful, a victim can also recover reasonable attorney fees from the tortfeasor. You should consult an experienced attorney to see if you have a sound case.
If you or a loved one have further questions about ethnic intimidation or require legal representation, then do not hesitate to contact the lawyers at Kershaw, Vititoe & Jedinak PLC for assistance today.