Stanislav Shmulevich was arrested Friday, apparently for stealing two Korans (in two separate incidents) from a Pace University "meditation room," throwing them into Pace toilets, and defecating on one of them. I'll have more on the constitutional and policy questions raised by this arrest in an upcoming post. Here I'd like to just summarize the facts and the relevant New York criminal law, as best I can figure them out.
If the factual reports are true, then Shmulevich is indeed guilty of theft, and may be guilty of some offense related to risking damage to the toilets (though I'm skeptical on that latter count, unless he was deliberately attempting to damage the toilets). But apparently he's risking a much more serious punishment, because the book he stole was the Koran, and presumably because he is seen as being motivated by hostility to Islam. From the AP story cited above:
Stanislav Shmulevich of Brooklyn was arrested on charges of criminal mischief and aggravated harassment, both hate crimes, police said....Muslim activists had called on Pace University to crack down on hate crimes after the [Koran-in-toilet] incidents [which happened months ago]. As a result, the university said it would offer sensitivity training to its students.
The school was accused by Muslim students of not taking the incident seriously enough at first. Pace classified the first desecration of the holy book as an act of vandalism, but university officials later reversed themselves and referred the incident to the New York Police Department's hate crimes unit.
The incidents came amid a spate of vandalism cases with religious or racial overtones at the school. In an earlier incident on Sept. 21, the school reported another copy of the Quran was found in a library toilet, and in October someone scrawled racial slurs on a student's car at the Westchester County satellite campus and on a bathroom wall at the campus in lower Manhattan....
Ibrahim Hooper, a spokesman for the national CAIR office in Washington, D.C., ... said CAIR decided to speak out about the Pace incidents because Muslim students are impacted by the creation of what could be viewed as a hostile campus environment.
Now the only DA's complaint that I've seen in this case deals only with the criminal mischief charge, and not with the aggravated harassment charge; so there might be something I'm missing as a result. But here's my best sense of the matter:
1. Because Shmulevich is being accused of "hate crimes," he is facing punishment that's "one category higher than" it would normally have been. This means, for instance, that if stealing and destroying a book and risking damage to a toilet is a misdemeanor, the "hate crime" version of this is a class E felony — potentially a pretty substantial sentence enhancement.
2. "[H]ate crime" is defined by New York law as a crime in which the offender
(a) intentionally selects the person against whom the offense is committed or intended to be committed in whole or in substantial part because of a belief or perception regarding the race, color, national origin, ancestry, gender, religion, religious practice, age, disability or sexual orientation of a person, regardless of whether the belief or perception is correct, orSubsection (a) — essentially discriminatory choosing the target of a crime — is what most hate crime prosecutions seem to be about. It's also the sort of provision that the Supreme Court unanimously upheld against First Amendment challenge in Wisconsin v. Mitchell (1993). But it's pretty clear that Shmulevich isn't guilty under this provision, because his victim was Pace University, which he didn't choose because of its religious affiliation. It appears that if Shmulevich is guilty, he's guilty under subsection (b), presumably because he committed the crime against Pace University because of "a belief or perception regarding the ... religion ... of a person" other than Pace — according to the complaint, because "he committed the acts out of anger toward a group of Muslim students with whom he had had a recent disagreement."(b) intentionally commits the act or acts constituting the offense in whole or in substantial part because of a belief or perception regarding the race, color, national origin, ancestry, gender, religion, religious practice, age, disability or sexual orientation of a person, regardless of whether the belief or perception is correct.
3. So that's the hate crimes enhancement provision; what about the underlying crimes? Here's the New York fourth-degree criminal mischief provision, which is charged in the complaint, and which indeed seems like the only relevant criminal mischief provision: "A person is guilty of criminal mischief in the fourth degree when, having no right to do so nor any reasonable ground to believe that he has such right, he ... [i]ntentionally damages property of another person" — presumably Pace's Korans. (It sounds like he didn't damage, or intentionally attempt to damage, the toilets, though he may have recklessly created a situation in which they might have ended up damaged.) So it sounds like stealing and damaging a book is a class A misdemeanor, while stealing and damaging a book because of someone's (not the victim's, but someone's) religion is a class E felony.
But when it comes to aggravated harassment, I can't see what the charge might be, and perhaps no such charge has been filed (despite what the AP story says), given that the only complaint I've seen mentions only criminal mischief. Here is what the aggravated harassment statutes say, in relevant part:
A person is guilty of aggravated harassment in the second degree [a class A misdemeanor] when, with intent to harass, annoy, threaten or alarm another person, he or she:These items all seem inapplicable here. There is no telephone, telegraph, or written communication. (I suppose throwing a Koran in the toilet is a form of communication, but not what one would call a "written" one.) There is no telephone call. There is no physical contact with another person, or attempted or threatened physical contact. There is no repeated following or repeated asks that place a person in reasonable fear of physical injury (even if Shmulevich has some past conviction for such a crime, which I've seen no evidence of). And there's no damage to premises primarily used for religious purposes, since "premises" means a place (see, e.g., Black's Law Dictionary); the damage here was to a religious book, not a religious premises.
1. Communicates, or causes a communication to be initiated by mechanical or electronic means or otherwise, with a person, anonymously or otherwise, by telephone, or by telegraph, mail or any other form of written communication, in a manner likely to cause annoyance or alarm; or
2. Makes a telephone call, whether or not a conversation ensues, with no purpose of legitimate communication, or
3. Strikes, shoves, kicks, or otherwise subjects another person to physical contact, or attempts or threatens to do the same because of the race, color, religion or national origin of such person; or
4. Commits the crime of harassment in the first degree and has previously been convicted of the crime of harassment in the first degree ... within the preceding ten years. [Harassment in the first degree is in turn defined as "intentionally and repeatedly harasses another person by following such person in or about a public place or places or by engaging in a course of conduct or by repeatedly committing acts which places such person in reasonable fear of physical injury."]A person is guilty of aggravated harassment in the first degree [a class E felony] when with intent to harass, annoy, threaten or alarm another person, because of the race, color, religion or national origin of such person he:
1. Damages premises primarily used for religious purposes, or acquired pursuant to section six of the religious corporation law and maintained for purposes of religious instruction, and the damage to the premises exceeds fifty dollars ....
So that's all I've got as to the facts and the New York law; more in an upcoming post, as promised, on the constitutional and policy questions. Allahpundit at Hot Air has more.
Related Posts (on one page):
- A Bit of Perspective on the Use of Feces and Toilets in Protests:
- The Perils of Hate Crime Laws:
- The Shmulevich Case -- Facts and New York Law, as I Can Best Figure Them Out:
I haven't done any research on the interpretation of this statute, but it doesn't sound like Eugene has either, and it's far from obvious only from the text of the statute.
The person against whom the criminal mischief is committed is therefore the owner of the property -- here, Pace University. Thus, subdivision (a) doesn't apply unless Shmulevich selected Pace because of someone's attributes. That seems extremely unlikely; it appears that he selected Pace because Pace was a convenient target -- he had been a Pace student and was hanging around Pace.
Is there a limit to how minor the underlying offense has to be? What if the underlying offense was a parking ticket for parking a car with, "Islam is evil" bumper stickers on it?
Parking violations cannot be a hate crime, because the statute enumerates which crimes can be hate crimes in 485.05(3). But even if parking offenses were one of the enumerated crimes, you would have to show that the person’s motive in parking illegally was their dislike for Islam. It would be hard to show, unless they purposely parked in front on a Mosque where parking wasn’t allowed, when there were other parking spaces available.
There's a slippery slope here, no question. If we limit "hate crimes" to just violence against persons, then acts of vandalism (cross burnings, spray painting slurs on someone's door) don't qualify. There is a legitimate argument that knowing that someone did this to a Koran might might make Muslims feel hated, I suppose. But this incident is really not like burning a cross on someone's lawn.
I am unclear about the meaning of "person" for purposes of the NY "hate crimes" law. Doesn't "the person" require that the underlying crime be committed against a particular, identifiable individual or that individual's property? In lieu of an identifiable individual will a group (e.g., all Muslims collectively or a group of Muslims like Pace's Muslim Student Association) serve?
Am I hung up here because my understanding of "person" is too literal? Are there other NY laws, especially ones that allow for criminal penalties, which intend a less literal meaning of "person," extending their coverage to groups and entities, as well as individuals? If so, what do those other laws cover and encompass? Does it matter that section (a) quoted above first says "the person" but then shifts to "a person"?
Please correct me if I am wrong about any of the following: For the NY "hate crimes" provision to pertain, there must first be a crime. If I went to a bookstore and purchased a Koran, then burned it on a barbeque grill in a public park with a crowd of onlookers, I would have committed no "underlying" crime, hence no "hate crime," though there might be a Muslim in the crowd who took great offense. It would not turn into a crime because I knew that person was a Muslim and fully intended to offended them.
I didn't see in the AP story all that I would like to know about the background facts in this case. Where can I find them?
From what I can tell this fellow hasn’t finished the program at PACE and still needs to graduate. Couldn’t the school refuse to release his transcript and/or make him repeat his last year as punishment?
Really?
That's certainly true if you think Shmulevich would have been equally inclined to steal or deficate on any old book. But if it was only the Koran that moved him to mischief, then wouldn't the person(s) for whose religion he had the animus required by subdivision (a) be the one(s) for whom Pace provided facilities to obverse Islam?
The point of the provision is probably to cover a scenario where someone dislikes Arabs, and mistakenly assaults a Sikh thinking that everyone wearing a turban is an Arab. Thus, subsection (b) would only apply if Shmulevich thought that Pace was a Muslim.
I first discounted that meaning of subsection (b), thinking that it makes the provision redundant with subsection (a), which makes the act a hate crime, “regardless of whether the belief or perception is correct.” But the belief or perception that the statute is referring to is a perception as to the attributes that a group has, not the belief or perception that the victim is a member of the group.
For an example of what I mean, suppose someone assaults a victim because he hates Arabs, under the mistaken impression that all Arabs are terrorists. The phrase “regardless of whether the belief or perception is correct” in subsection (a) is not written to state that the perpetrator is guilty regardless of whether he is correct that the victim is Arab. Rather, it is written to state that the perpetrator is guilty regardless of whether he is correct in his belief and perception that all Arabs are terrorists. Note that subsection (a) deals with the “belief or perception regarding the race…” of the person, not “belief or perception as to the race…” of the person.
If the statute means what you are saying, I doubt it would have written about a “person” in the singular, in subsection (b). It would have made it a hate crime to commit an act because of a “belief or perception regarding a race, color, national origin, ancestry, gender, religion, religious practice, age, disability or sexual orientation” and left out the phrase “of a person,” which would be completely unnecessary.
This must be the most vile portion of the act. Ilegally parking a car with a bumper sticker stating that "All Wiccans Suck" would be a hate crime even if all Wiccans performed oral sex. A factual statement has been criminalized.
Unless there's something specifically interesting about that copy, I'd assume that Pace had it for the benefit of non-Muslims.
If I understand him correctly, Pace will serve for "the person." ("Person" can encompass a school, organization, church property, and possibly more? For purposes of this particular law or for the purposes of most laws?)
Is it problematic for the prosecutor that Pace is itself a secular institution and there was no hateful intent directed at it? I should think it would be a more straightforward matter, though still perhaps with "the person" issue, if a mosque had been desecrated or the Koran had been stolen from a mosque. (This law is meant to encompass desecrations of places of worship, isn't it?) If the Koran had been stolen from a Barnes and Noble, then burned in front of a group of Muslims, there would have been the property theft, followed by a hateful act, but would that come within the ambit of the "hate crimes" law and make it a more serious matter than the simple theft of property worth no more than perhaps $10?
Muslim students destroy a Jewish religious object that they purchased, a possible hate crime?
Absolutely. And this is why these statutes are not really like the laws against defamation to which they are often likened by their proponents. What they are really like is the sedition laws, which punished expression considered injurious to the crown even if, in fact especially if, it was true.
But say that someone seized a copy of Dianetics, and vandalized it with the message "Scientology is a scam, and Scientologists are either crooks or dupes." Should that be a felony?
First, sub (b) of the Hate Crimes enhancement applies even if the commission of the offense is "in substantial part because of a belief" regarding the characteristics of a third-party person. For instance, if I beat up a white man because he's married to a black woman, I will be found guilty of the hate-enhanced crime *provided* that the DA can show my act was based in substantial part on my belief that white people should not marry black people. It doesn't matter that my anger isn't directed to the white male; only that I am assaulting him because of my beliefs about the ethnicity (and rights, apparently) of his wife. So I am not at all troubled about the legality of applying sub (b) to a crime committed "against" Pace University that is based on a belief about third-party students who use the meditation room.
Second, I am a bit troubled by the position the poster takes --perhaps in related posts-- that this is an unusual kind of anti-blasphemy stance. Religious institutioins have usually received heightened and specific protection under the criminal laws. Consider some other New York laws that would not *quite* apply to this conduct.
PL 155.30 Grand Larceny in the Fourth Degree (E Felony)
"A person is guilty... when he steals property and when...[subsection (9)] the property consists of a scroll, religious vestment, vessel or other item of property having a value of at least one hundred dollars kept for or used in connection with religious worship in any building or structure used as a place of religious worship by a religious corporation [as defined]."
The value of the two Korans would be aggregated and probably exceed $100. The meditation room probably qualifies as part of a building used as a place of religious worship. The only obvious reason this section fails is because Pace U. isn't likely to be a registered religious corporation (nor, perhaps, is any student body or group that typically uses it). This section is frankly a very near miss. Would the original poster consider this law to be ill-advised?
Consider further the other provisons of the Aggravated Harassment offense:
PL 240.30
"A person is guilty of aggravated harassment in the first degree when with intent to harass, annoy, threaten or alarm another person, because of a belief or perception regarding such person's race, color, national origin, ancestry, gender, religion, religious practice, age, disabiltiy or sexual orientation, regardless of whether the belief or perception is correct, he or she:
(1) Damages premises primarily used for religious purposes...and the damage to the premises exceeds fifty dollars; or...
(3) Etches, paints, draws upon or otherwise places a swastika, commonly exhibited as the emblem of Nazi Germany, on any building or other real property, public or private, owned by any person... without express permission of the owner or operator of such building or real property; or
(4) Sets on fire a cross in public view.
Again, these are specific acts targetted as hate crimes (although separately categorized) against easily-discrenable groups of people. There is no requirement that the swastika be painted on the target's property. There is no requirement that a person who defaces a church because he thinks the church welcomes homosexuals even be right... the "victim" congregation could be just as bigotted as the criminal. What matters for these crimes is that they be addressed to a person or persons -- jews or homosexuals -- because of their characteristics and with intent to annoy or alarm them. The *victim* of the defacement is the person who is intended to be fearful.
My point is just that the Koran defecation offense is just as offensive to the Muslim students, was clearly intended to annoy or alarm those students, and is unfortunately not covered by the laws aimed at more commonly-practiced offenses. That the New York DA's office is stretching to prosecute this act with the available law shouldn't be surprising or alarming to anyone, in my view.
I assume that Anglo-Catholic PACERS will have access to kneelers, stained glass, candles, and a copy of the Monastic Diurnal when they pray seven times a day.
Matins, Prime, Terce, Sext, None, Vespers, and Compline.
The reports that I have seen don't say, but a likely explanation is that the Koran came from the Pace library. Surely every university library has the Koran just as it has the Bible, the Bhagavad Gita, the Book of Mormon, etc. I don't think there's any catering to Muslim special interests here.
The Supreme Court has upheld flag burning (Eichman) and cross burning (Virginia v. Black 538 U.S. 343 2003) as protected speech. It seems absurd to carve out a First Amendment exception for the Koran (or other religious symbols) when one doesn’t exist for the cross or the US flag.
committed a crime against Pace University - a corporate
person - based on the imputed religious beliefs of that
corporate person as expressed by its accommodation of
Muslims (by admitting them, providing them with copies
of their holy book and the use of the meditation room, and
so on). I don't see language in the statute restricting
its interpretation to natural persons.
Kevin -- You are right. Pace is a corporate person for the purposes of the penal law. If the law is intended to apply solely to human beings, it will typically say "natural person." But again, you don't need to show that Pace was the one with the targeted beliefs or status in order to make out the allgeged hate crime.
Does it make any constitutional sense that you have the right to burn the flag but not to destroy a copy of the Koran? I am not a lawyer, but it seems inconsistent to me. I agree with KJ.
No one has a “right” to steal and burn someone else’s flag which would be the analogous situation.
That being said, this is not a crime dedicated towards any one individual, or with the intent to intimidate a group of individuals. This is just a jackass being profane. If he had burnt a cross on someone's lawn, or written slogans such as "Muslims should die" on a mosque wall, that should be a hate crime, because it is intended to suggest or impose bodily harm on others. But defaming a religious artifact, while profane and insensitive, shouldn't be a crime.
Congress and the NY state legislature obviously disagreed about the need for enhancement.
Personally, I'm agnostic about hate crime statutes. The cynic in me believes that they are mostly passed as a means by politicians to pander to professional grievance-mongers. But when I think about such things in historical terms, I think punishing those offenders who target ethnic and religious minorities for criminal activity with greater severity might not be a bad idea.
It's certainly hard to work up much sympathy for Shmulevich, if the facts are as alleged. If someone steals and desecrates a religious aritifact, twice, why shouldn't we throw the book at him? In fact, isn't it perfectly consistent with the state's obligations under the 1st Amendment to severly punish those who intentionally seek to suppress the 1st Amendment rights of others?
Likewise, if one burned a flag in such a situation that doing so was (1) a stand-alone criminal act, and (2) intended because of a qualifying belief, etc., then it *would* be illegal to do so, even under the caselaw you're referring to. But that would have nothing at all to do with the fact it's a flag.
Nora C -- I agree with you that this may not ultimately result in a conviction. The trouble is that while, for purposes of pleading, we can say that his conduct was based on a belief about the religion/ethnicity of the Muslim students he apparently intended to offend, a jury may well not see that as having been proven beyond a reasonable doubt. But I'm not prepared to draw the line at direct threats of violence; implied threats and intimidating behavior were explicit parts of the legislative findings written by the state legislature into the penal law. (PL 480.00)
Let’s assume that I steal a US flag from Pace University and burn it as a form of political protest. I could be charged with theft or vandalism but not a hate crime because buring the flag is recognized as protected speech.
Now assume that I steal a Koran from Pace University and burn it in a strictly political protest. Unlike flag burning, here I could be charged with a serious hate crime enhancement even though religion is not part of my motivation.
Somehow flag burning is free speech but similarly burning a Koran is not. I’m not persuaded that there should be any distinction between the two acts. Others have suggested that this distinction raises equal protection concerns and I agree.
As to your more general point, I defer to others who have written in this forum about prosecutions for protest activity. While one can make the argument that burning the Koran in a protest falls linguistically within the hate crime sub (b) definition, the robust caselaw on the topic generally grants additional First Amendment protection for obvious and organized protest behavior. I concede that there is a fuzzy border here, but it's not one that is typically resolved against the defendant.
That said... let's not get crazy about what constitutes a legitimate act of protest. Painting swastikas on fences in the night isn't protected protest. And neither, I submit, is defecating on books in the men's room (at least not without a whole lot more publicity!)
If Shmulevich had stolen and defecated on someone's Judith Kranz paperback, no one would much care. He'd be written off as a literary extremist.
He chose his target for the same reason as my hypothetical library vandal: to express his hatred of the associated group. IMO, that makes it a hate crime,
If a zealous cop bust a flag-burner for having an open fire without a fire permit, have we met threshold (1)?
Burning the flag on a city sidewalk with no flammables around during a permitted protest? Much different situation, even if technically an unpermitted open fire. In that situation, I would not be surprised to find that a court reads the Supreme Court case to protect the burning as speech -- but I could easily see it going the other way too.
I hope Shmulevich learns his lesson. Next time he deficates on a Koran he should have it mounted on a wall at an art museum.
I think this is a fine but important distinction. Suppose this guy thought, "Islam oppresses women. Islam is evil. I must generally suppress its teachings by getting rid of a few korans." He's not doing it because any particular person is Muslim. Therefore, the "a person" test fails and there is no hate crime.
College student Mohammed paints swastikas across the front of a synagogue to protest what he sees as Nazi like behavior of Israel toward Palestinians. Is this a hate crime? No individual person is the victim of this act.
And for those of us who are skeptical of the whole concept of hate crime laws, should Mohammed's act be treated no differently than a tagger who puts his graffiti onto a commercial building?
Personally I’m in favor of public caning for graffiti vandals but I think a better analogy might be to have your fictional student steal two copies of the Torah from the library, put them in the toilet and defecate on one of them.
Just out of curiosity, was your point that much of opposition to the prosecution of this thug seems to be based more in an animus towards Muslims as opposed to an aversion towards bias crime statutes?