Court Rules that, Yes, Kidnapping and Branding a Swastika on a Mentally Disabled Navajo Man Can Be Considered a Hate Crime

A New Mexican who kidnapped a mentally disabled Navajo man and branded a swastika into his arm cannot duck the Hate Crimes Act, the 10th Circuit ruled.
     The Navajo man is identified only as V.K. in court documents. V.K. had gone to a Farmington, N.M., restaurant in 2010 when three workers there - William Hatch, Paul Beebe and Jesse Sanford - persuaded him to go to Beebe's apartment.
     "At Beebe's apartment, the three white men drew on V.K.'s back with markers," the ruling states. "They told him they would draw 'feathers' and 'native pride' but actually drew satanic and anti-homosexual images. They then shaved a swastika-shaped patch into V.K.'s hair. Finally, they heated a wire hanger on the stove and used it to brand a swastika into V.K.'s arm."
     New Mexico prosecutors then charged the men with kidnapping and aggravated battery, as well as conspiracy to commit both crimes.
     While state prosecution was pending, the federal government charged the assailants with violating, and conspiracy to violate, 18 U.S.C. § 249(a)(1) - a portion of the Matthew Shepard and James Byrd Jr. Hate Crimes Prevention Act that makes it a felony to physically attack a person due to race.
     In May 2011, Hatch was convicted in state court of conspiracy to commit aggravated battery, but otherwise acquitted.
     That same month, Beebe, Sanford and Hatch moved in federal court to dismiss the federal indictment, calling 18 U.S.C. § 249(a)(1) unconstitutional and claiming that Congress "lacked the authority to criminalize purely intrastate conduct of this character."
     A federal judge nevertheless credited Uncle Sam's argument that the Hate Crimes Act was authorized by the 13th Amendment, which abolished slavery.
     Hatch then individually pleaded guilty but reserved his right to appeal, which he did while serving 18 months on the state conviction, running concurrently with a 14-month sentence on the federal charge.
     A three-judge panel of the Denver-based federal appeals court affirmed Hatch's conviction last week.
     "The portion of the Hate Crimes Act under which Hatch was charged and convicted - 18 U.S.C. § 249(a)(1) - is a lawful exercise of the powers granted to Congress by Section 2 of the 13th Amendment. We therefore affirm Hatch's conviction," Judge Timothy Tymkovich wrote for the panel. 
     "Although the 13th Amendment by its terms applies to slavery and involuntary servitude, Supreme Court precedent confirms Congress's authority to legislate against slavery's 'badges and incidents,'" the 34-page ruling states. 
     "Section 249(a)(1) rests on the notion that a violent attack on an individual because of his or her race is a badge or incident of slavery," Tymkovich added. "Congress reached this conclusion by accounting for the meaning of 'race' when the 13th Amendment was adopted, the state of mind of the attacker, and the attack itself."
     Joined by Judges Michael Murphy and Terrence O'Brien, Tymkovich cited Jones v. Alfred H. Mayer Co., a 1968 case permitting a federal private right of action against private individuals for housing discrimination.
     "Under the authority of Jones, we conclude Congress rationally determined that racially motivated violence is a badge or incident of slavery against which it may legislate through its power to enforce the 13th Amendment," the ruling states.
     Congress enacted the 13th and 14th Amendments as part of the Civil Rights Act in 1875.
     That act guarantees "that all persons within the jurisdiction of the United States shall be entitled to the full and equal enjoyment of" public facilities such as inns, theaters, and rail cars, "subject only to ... conditions and limitations ... applicable alike to citizens of every race and color."
     In 2009, Congress enacted the Hate Crimes Act prohibiting physical violence - or threats of it, in certain circumstances - on account of the victim's race, color, religion, national origin, gender, sexual orientation, gender identity or disability

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