While most states have hate crime statutes, only about five include law enforcement officers as a protected category. Utah is one of these states and a recent case has attracted the media spotlight. After a traffic stop for speeding, Lauren Gibson is alleged to have stomped on a “Back the Blue” sign while “smirking in an intimidating manner” at a deputy. She has been charged with criminal mischief, which could result in up to a year in jail. Far more seriously, Gibson could be charged with a hate crime for her actions. These leads to two issues. The first is a specific matter: should her actions be taken as constituting a hate crime? The second is a general matter: should law enforcement be a protected category in the context of hate crime statutes?
While the legal debate is best left to legal experts, I can certainly consider the text of the law and assess whether it seems reasonable to interpret her actions as a hate crime. According to the Utah law, a hate crime occurs when a person commits an offense “with the intent to intimidate or terrorize another person or with reason to believe that his action would intimidate or terrorize that person.” And, of course, the person must be in a protected category. So, for example, if I went to Utah and was recognized as a philosophy professor and a crowd attempted to terrorize or intimidate me because of this, it would not be a hate crime. If the same crowd did the same sort of thing to a police officer who was with me, then that would be a hate crime. That is how protected categories work.
Given that Gibson is a 19-year-old woman who was unarmed at the time of the incident, it seems unlikely that she would believe she could intimidate an armed deputy. While she probably did not know it at the time, the deputy is a veteran of the department and had seen combat duty while serving in the military. One could, of course, argue that she did think she could intimidate and terrorize him by stomping on a sign and smirking; but those would be rather odd ways to try to intimidate and terrorize an armed deputy.
Determining intent can be a tricky matter since this often requires speculating on internal psychological states. Naturally, a person can make their intent clear by words or deeds. But stomping on a sign and smirking in this context seem to be based on an intention to express anger and displeasure rather than expressing an intention to intimidate and terrorize. One can, of course, say that she exercised poor judgment in antagonizing the deputy, but she probably did not expect to be charged with criminal activity or a hate crime. Smirking, after all, is generally not a crime. In the case of the sign, it had apparently been found abandoned by the side of the road earlier in the trip. Stomping on an abandoned sign is also usually not a crime. While ignorance of the law is not an excuse, unless she was aware of the statute, she would have no reason to think that her actions would constitute a hate crime. After all, her actions are not what a person would intuitively think of as falling under a hate crime. While the legal judgment is up to the judge, it would be absurd to convict her of a hate crime—even under the statute. This leads to the question of whether law enforcement should be considered a protected category in the context of hate crimes.
While people can and do hate the police, hate crimes are not defined based on the emotion of hate. After all, if a mob in Utah tried to kill me because they hate my ontological commitments, then they would be acting from hate but not committing a hate crime. As noted above, a hate crime involves intimidation and terrorizing aimed at a protected category. From a moral standpoint, a reasonable justification for focusing on intimidation and terrorizing is to distinguish crimes that might be committed against a person who just so happens to be in a certain category and crimes aimed at a person because they are in that category. So, if Ted embezzles money from Sally, he hates Sally because she is a cruel boss, and Sally is in a protected category, then that would generally not be a hate crime. After all, Ted is not trying to intimidate or terrorize her—he is just trying to steal money and just happens to dislike her. But if Ted attacks Sally because she is in a protected category and intends to intimidate or terrorize her because of that category, then that would be a possible hate crime. As far as why a hate crime would be worse than a normal crime, one moral factor is that a hate crime also harms other members of the category. This is because the hate crime is not aimed just at intimidating or terrorizing a person, but also aimed at intimidation and terrorizing them because they are within that category. So, if Ted commits a crime against Sally aimed at intimidating and terrorizing her because she is a woman, they he is also acting against other women and thus the consequences are usually greater than for a “normal” crime.
In the case of law enforcement, it is true that a person can be targeted for a crime because of their profession. While it is fortunately a rare occurrence, there are cases where police are targeted for what amounts to assassination. But this is also true of many other professions. For example, journalists are subject to attacks because they are journalists (sometimes by the police). Thanks to Trump and his fellows, these attacks increased and are still an ongoing concern. Speaking of Trump and his fellows, their lies have also contributed to increased attacks on public health officials. As such, if law enforcement should be protected by hate crime laws, then the same protection should be extended to other professions as well—especially journalists and public health officials. In this case, one might see an interesting case in which a journalist commits a hate crime against a police officer by “intimidating” them by filming them committing a hate crime by intimidating and terrorizing the journalist by shooting them with “less than lethal” munition and whacking them in the face with a club. One could, of course, argue that professions should not be the basis for being in a protected category.
Also from a moral standpoint, hate crime definitions often tend to focus on intimidation and terrorizing because of ethical concerns about power disparities between categories of people and not just between individuals. While individuals do vary greatly in power, certain categories enjoy relative power advantages over other. To use an obvious example, men as a category have more power than women as a category. I, as a man I can run through the woods in the dark with no fear; the same is not true for women. While there are individual women who can physically intimidate and overpower individual men, men as a category have the advantage when it comes to terrorizing and intimidating. As another example, white Americans as a category have more power than other Americans. This is not to deny that an individual white American can be intimidated or terrorized by, for example, an African American. But white Americans generally have the advantage here when it comes to inflicting terror and intimidation. For example, Amy Cooper seemed to know exactly what she was doing when she attempted to use the police to intimidate Christian Cooper. In this specific case, her efforts backfired, and she got in trouble, but this is because the encounter was recorded. In other cases, the intimidation works as intended.
While an individual law enforcement officer could obviously be intimidated or terrorized by someone outside of the profession, as a category law enforcement has an absurd level of advantage over civilians. Police are armed, often with military grade equipment, they usually wear some form of armor, and they have at least basic training in combat. They also have the advantage of being able to call on the power of the state—both in the form of reinforcements and in inflicting punishment through the legal system. They also often get away with using excessive, even lethal violence. There have been, of course, some famous exceptions that show if the violence is recorded and witnessed by many people and the incident gains national and international attention during the right phase of public opinion, then an officer can be held accountable. As such, law enforcement as a category is unlikely to be intimidated or terrorized. The weight of terror and intimidation is entirely on their side. As such, there seems to be no moral need to single out law enforcement for special protection under hate crime laws. To pre-empt likely straw man attacks, I am obviously not claiming that police should not be protected by the law; a crime against a person who is in law enforcement is still a crime but would not be a hate crime. So, why are their such statutes?
The easy and obvious answer is that the intention is to, ironically, intimidate and terrorize people who might come into conflict with the police. This could be during an arrest or during a protest. On the face of it, one could argue that a person who resists arrest is committing a hate crime under this statute. If stomping on a sign and smirking count as threats or intimidation, then protests the police would also fall under this category. Protesting anything while police are merely present could fall under this sort of statute. An officer might, for example, see a protestor smirking at them and decide that was an attempt to intimidate them.
I must, of course, grudgingly admit that the right is devilishly clever to repurpose hate crime laws intended to protect marginalized communities and vulnerable groups. They are weaponizing these laws against these communities and groups; just as they have weaponized free speech. In closing, while law enforcement does deserve the full protection of the law, making them a protected category is obviously intended to weaponize hate crime statutes and do so largely against the people they were originally intended to protect.