November 21, 2009
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August 01, 2009

Eric Holder's Hate Crime Color Scheme

By Jan LaRue
Imagine the Ku Klux Klan in full regalia standing before a polling place deep in Dixieland hurling racial insults at black people arriving to vote in the last election. Imagine further a Republican-run U.S. Department of Justice (DOJ) dropping the civil complaint against the KKK that had been filed by a Democrat-run DOJ.

Unless you've dropped acid, your fantasy life probably can't get you there.

Try reality.

The Obama DOJ has admitted dropping a civil complaint filed by the Bush DOJ on Jan. 7, 2009, accusing members of the New Black Panther Party of "wearing black berets, black combat boots, black dress shirts and black jackets with military-style markings, brandishing a 2-foot-long nightstick and issuing racial threats and racial insults" at voters in Philadelphia, during November's election," according to an exclusive in The Washington Times on July 30. Members of Congress want to know why.

Fox News ran a story with an eyewitness at the scene on Nov. 4. The Bush DOJ had sought an injunction against the Panthers to prevent further violations of the 1965 Voting Rights Act:

Minister King Samir Shabazz and Jerry Jackson were deployed at the entrance to a Philadelphia polling location wearing the uniform of the New Black Panther Party for Self-Defense, and that Samir Shabazz repeatedly brandished a police-style baton weapon.

[P]arty Chairman Malik Zulu Shabazz confirmed that the placement of Samir Shabazz and Jackson in Philadelphia was part of a nationwide effort to deploy New Black Panther Party members at polling locations on Election Day.

The Department seeks an injunction preventing any future deployment of, or display of weapons by, New Black Panther Party members at the entrance to polling locations.

Eric Holder, the newly appointed Attorney General of the United States, told the Washington Lawyers Committee for Civil Rights and Urban Affairs on June 17: "We will not tolerate murder, or the threat of violence, masquerading as political activism," according to Devlin Barrett writing for Breaking News 24/7. "So let me be clear. The Justice Department will use every tool at its disposal to protect the rights ensured under our Constitution."

The DOJ Web site states: "If you know of activities that intimidate, coerce, threaten, or oppress voters based on race, color, religion, or national origin, please contact the Criminal Section." Holder needs to explain why its "Criminal Section" isn't prosecuting the Panthers on felony charges of violating 18 U.S.C. § 245. Section 245 states:

(b) Whoever, whether or not acting under color of law, by force or threat of force willfully injures, intimidates or interferes with, or attempts to injure, intimidate or interfere with--

(1) any person because he is or has been, or in order to intimidate such person or any other person or any class of persons from--

(A) voting or qualifying to vote, in any primary, special, or general election; ... shall be fined under this title, or imprisoned not more than one year, or both; and ... if such acts include the use, attempted use, or threatened use of a dangerous weapon ... shall be fined under this title, or imprisoned not more than ten years, or both;

Holder was certainly aware of Sec. 245 when he testified before Congress on June 25. He quoted the section urging Congress to pass a new "hate crimes" law which would allow the federal government to prosecute crimes based on sexual orientation, gender, gender identity or disability even if the victim wasn't engaged in a federally protected activity. Holder "cited the recent killing of a security guard at the U.S. Holocaust Memorial Museum in Washington. The alleged assailant is a white supremacist."

Holder said the expansion of the hate crime law was needed if states lack the "capacity," "willingness" or "desire to prosecute these kinds of cases," even though he does not think "that there is a trend among the states or local jurisdictions in failing to go after these kinds of crimes," according to columnist Debra Saunders.

Since Pennsylvania hasn't indicted the Panthers, wouldn't Holder's logic compel that the feds should? If DOJ can't make the case under Sec. 245 against armed Black Panthers who told Chris Hill, a white Republican poll watcher, "White power don't rule here," and called Larry Counts, a black Republican poll watcher a "race traitor," why is Holder confident that DOJ can successfully prosecute hate crimes based on something as subjective as "perceived gender identity"?

Or is it Holder's goal simply to chill politically incorrect speech?

Holder's response to a question by Sen. Jeff Sessions leads to that conclusion:

Sessions: "[A] minister gives a sermon, quotes the Bible about homosexuality, is thereafter attacked by a gay activist because of what the minister said about his religious beliefs and what Scripture says about homosexuality." Is the minister protected, is what Sessions said. Here's a portion of the answer, the testimony from Eric Holder.

HOLDER: Well, the statute would not -- would not necessarily cover that. We're talking about crimes that have a historic basis. Groups who have been targeted for violence as a result of the color of their skin, their sexual orientation, that is what this statute tends -- is designed to cover. We don't have the indication that the attack was motivated by a person's desire to strike at somebody who was in one of these protected groups. That would not be covered by the statute.

Since religion is one of the classes included in the definition of hate crimes, what authority does Holder have to exclude the attack on the minister from being "covered by the statute"?

Holder, the first black U.S. attorney general, gave a speech at DOJ in honor of Black History Month on Feb. 18, just 16 days after his confirmation. He used the occasion to tell us that the United States is "essentially a nation of cowards" when it comes to race relations.

Unless Holder considers "brandishing a 2-foot-long nightstick" just an innovative invitation to "talk with each other about things racial," it appears that his DOJ is cowering before the New Black Panthers.

Since the statute of limitations hasn't run on filing felony charges under Sec. 245, Mr. Hill and Mr. Counts should request a conversation with Holder about "unresolved racial issues" in Philadelphia.

Maybe Holder will have them over for a beer.

Jan LaRue is Senior Legal Analyst with the American Civil Rights Union; former Chief Counsel at Concerned for Women; former Legal Studies Director at Family Research Council; and former Senior Counsel for the National Law Center for Children and Families.
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