The Immutable Characteristic Of Blue

Both Radley Balko and Ilya Somin have written great posts about why the Protect and Serve Act, which is now pending in Congress, is unnecessary, unconstitutional and just plain bad law. It would make an attack on cops a hate crime, meaning that it would provide for an enhanced penalty.

The House version is the straight up mandatory minimum flavor; cause “serious bodily injury” to a cop and the sentence starts at ten years. Cops tend to suffer “serious bodily injuries” quite a lot, often from the repetitive stress of face-punting a cuffed perp. Like “turf toe” in football, the impact on their dominant foot can last for days.

The message is don’t harm a cop. The law and order crowd perceives no issue with such an admonition, largely because they lead a simple and sheltered life where it never dawns on them that some people face the choice of being killed or trying to defend themselves from police use of force for the hell of it. There is no moral victory in being maimed or killed, but not harming the cop.

The other aspect that too often fails to find its way into the limited grasp of encounters is that a cop may be harmed due to no action of the person charged, but in the course of the takedown. Maybe shot by another cop. Maybe he trips, falls and splits his head open. Maybe he crashes his cruiser because he’s a lousy driver.

Maybe the guy he’s chasing didn’t do anything at all, but if the cop ends up harmed, through no action on his part, he still faces a dime. To fans of laws like this, these objections are easily answered by “the ‘perp’ shouldn’t have done . . . something.” There’s always a something that relieves the cop from responsibility for his own actions.

The Senate version, however, reflects the slide down the slippery slope, and raises a much more vexing problem.

Using language that mirrors the language used in hate crime laws aimed at protecting marginalized groups, the bill would make it a federal hate crime “to knowingly cause bodily injury to any person, or attempt to do so, because of the actual or perceived status of the person as a law enforcement officer.”

The key here is that the enhancement isn’t based on the crime, but the status of the victim. As Radley notes, there’s no epidemic of prosecutors failing to use every weapon at their disposal to go after anyone who intentionally harms a cop. Isn’t life plus cancer enough? Will life plus double cancer make people think twice?

But the use of the hate crime approach is where the law goes horribly wrong.

The conventional thinking on hate crimes is that, when someone kills or assaults or commits a property crime like vandalism in such a way that targets the victim because they are a member of a vulnerable community, all members of that community are affected.

It’s unclear what “conventional” means in this context. That this is the argument proffered by the supporters of hate crimes, adopted by legislators who could burnish their social justice cred while pandering to their carceral constituents? Or do supporters just seethe against the bigots who harm the marginalized, unsatisfied with screaming racist at them as the cell door slams and wanting special retribution for their hating and hated thoughts?

The ACLU was completely on board with federal hate crime legislation, until now, when it isn’t at all.

Federal hate crimes laws were passed to correct the centuries of inaction and injustice that too often was the response to violence based on immutable traits and identities, including race, gender, religion, sexual orientation, gender identity, and disability.

The “immutable traits” prong was key to the justification for laws prohibiting discrimination in employment and education, and a few steps down the slippery slope, hate crimes. At the same time, the traits deemed “immutable” grew. Religion? People convert or decide to question their faith all the time. Gender? It’s fluid, they tell me. Sexual orientation may be immutable for some, but others dabble. Who knows where they end up? And gender identity?

The argument against adding copdom to this status is that it’s neither vulnerable nor immutable. If you ask the promoters of these laws, they will argue that cops are, indeed, vulnerable. There is a war on cops. A certain group of Americans despises cops just for their status. It’s nonsense, but they believe. Isn’t their belief as valid as those of the most passionate SJWs?

But the other option, immutability, would have served to preclude the enhancement of thought crimes against cops because it was just a job. Even if it’s characterized as a “calling,” you get a paycheck and, when your pension vests, retire. Nothing immutable there.

Except the good ol’ ACLU and its defenders of the marginalized went and screwed it all up. First, by its insistence that thought crime was a totally legitimate basis for enhancement,*and then by their adding a variety of statuses to the laundry list. Traits don’t become immutable because of fashion trends, and their validity isn’t established by wrapping them up in social justice rhetoric.

Worse yet, it doesn’t pass the smell test. If gender identity is fluid, then it’s not immutable. You can’t have it both ways by stamping your feet and screaming names at anyone pointing out the error of your cries.

Even the “conventional thinking” fails to make the case. All crimes are, theoretically at least, against society. Individual harms are vindicated by civil actions. Criminal conduct is what society seeks to deter and punish. It may be true that a hate crime against a black person isn’t about the individual, but about race, but that’s why the conduct is criminal in the first place.

The tacit implication is that it’s not harsh enough when the motive is particularly despicable. But motive means purpose, and the enhancement punishes people for their thoughts. They may well be disgusting thoughts, but once we breach that wall between conduct and thought, we end up with laws like the Protect and Serve Act.

Some people believe that crimes against people because of their race are worthy of enhanced punishment. Others believe the same about crimes against cops.

This definition under no possible interpretation, could include being a member of law enforcement.

Saying so doesn’t make it so, ACLU. You can’t have it both ways. You led the march to thought crime against those you despise, and now others are following in your footsteps. We told you this would happen, not because we’re so smart but because this was so obvious. And you’re just as carceral as your opponents; just against different people.

*The unwary conflate hate crime with more traditional crimes, like possession with intent to sell. Granted, leges have conflated the language of motive and mens rea, using “intent” far too loosely, but the commission of a crime with the purpose of committing a greater crime isn’t comparable to committing a crime that’s aggravated by the status of the victim.

There are exceptions for crimes against children and the elderly, because of their vulnerability, but it’s not solely based on status, but the rational presumption of their inability to defend themselves.

12 comments on “The Immutable Characteristic Of Blue

  1. Ross

    Once again, the Commerce Clause gets twisted like a pretzel to justify making a State crime a Federal crime. All so some publicity seeking group of Congress critters can tout their support for law enforcement.

  2. LarryArnold

    So the minority of people not covered by hate-crime legislation is about to shrink a bit more.
    The obvious solution is to include us on the list, and enhance penalties for hating anyone.

  3. MonitorsMost

    This legislation clearly falls under the badges and incidents of slavery expansion of federal power. Afterall, not being able to fight back when an authority figure sticks his boot in your ribs because you didn’t follow orders sure sounds like a badge or incident of slavery to me.

  4. Kent McManigal

    I don’t hate cops “just because”, but for the same reason that I hate rapists: the acts which define them are acts of aggression. Rapists rape (by definition) and cops commit acts of “law enforcement”. Those committing those acts could choose to not be a rapist or a cop; that they choose to do so anyway puts the responsibility on them, not on their victims.

    And making the injury to a cop a “hate crime” makes as much sense as making it a hate crime to shoot a rapist if the rapist happens to be Black or gay, or Muslim- it’s not the irrelevant characteristics of the person committing the aggression that matters, it is that he chose to commit aggression and you have the right to defend yourself. No matter who he is or why he chooses to attack you.

    1. SHG Post author

      All rapists, by definition, are rapists. All cops, by definition, are not engaged in acts of aggression. If you’re going to use an analogy, pick a better one.

  5. Ken Mackenzie

    Detective: When we nabbed you in the alley you swung a punch at me.
    Suspect: But that never happened!
    Detective: Sergeant Ryan here saw it too, didn’t you Tom? See, attempt to do bodily harm to a police officer. That’s ten years, minimum. Mandatory. Do you know what mandatory means Chucky? Now, about that stolen truck, are we going to do this the easy way?

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