The Shmulevich Case -- Facts and New York Law, as I Can Best Figure Them Out:

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, or

(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.

Subsection (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."

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:
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 ....

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.

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.

The Perils of Hate Crime Laws:

Imagine five situations:

1. Stanislav Shmulevich steals a Koran from Pace University, puts it in the toilet, and covers it with feces. He is prosecuted not just for the misdemeanor of damaging a book (which he seems to be guilty of), but for a felony hate crime, because he is acting "because of a belief ... regarding the ... religion ... of a person," there some Muslims with whom he had been having an argument — perhaps he thought that the Muslims were bad because of their Islam, and he wanted to blaspheme against Islam as a way of getting back at them. (Note that he did not choose his victim because of the victim's religion; the victim of the property damage is Pace University.)

2. Shawn Eichman comes to New York to burn another flag, which he owns; but he burns it "recklessly" in a way that causes over $250 of damage to a bystander's property (which is to say with the awareness that his burning poses) a substantial and unjustifiable risk to such property). He is prosecuted not just for the misdemeanor of recklessly damaging property, but for a felony hate crime, because he is acting "because of a belief ... regarding the ... race, ... national origin, ... or religion ... of a person." Say, for instance, he was burning the flag to protest the lack of enough blacks or Hispanics in various parts of the administration (race), to protest what he sees as various Republican leaders' wrongheaded and excessive religiosity (religion), or to protest what he sees as the misconduct of American troops (assume that New York courts interpret "national origin" to include American citizenship or participation in American institutions).

   [UPDATE: On reflection, I realize that it's not clear whether the hate crimes law would cover this, since it requires that one "intentionally commit the acts." It may be that intentionally burning a flag, intentionally doing so because of someone's attributes, and thereby recklessly damaging property is enough; but it may be that the law would apply only to intentionally burning a flag and thereby intentionally damaging property. Assume, though, that the former interpretation is adopted; or, if you prefer to assume that New York courts will adoopt the latter interpretation, then assume that the flagburner took the flag from a government building, or borrowed it from a friend or family member without getting permission to burn it, either of which would make the burning into fully intentional fourth-degree criminal mischief.]

3. An artist creates a display with a cross covered in human excrement, to protest what he sees as the historical crimes of Christianity (or, if you prefer, the Catholic Church's actions with regard to child molestation by priests). However, he does this on the premises of a public housing project, and refuses to leave when the public housing project authorities tell him to do so. Such failure to leave is normally a third-degree criminal trespass, which is a class B misdemeanor. But the artist is prosecuted for a class A misdemeanor because he committed the acts because of a belief regarding the religion of various Christians or Catholics against whom he is protesting.

4. A minister comes to the home of a local Episcopal Church leader to remonstrate against him because of the Church's willingness to approve gay bishops. The leader at first grudgingly agrees to let the minister enter and discuss the matter, but eventually demands that the minister leave. The minister refuses to leave, which would normally make him guilty of class A misdemeanor second-degree criminal trespass — but because the minister was motivated by a belief regarding the sexual orientation of the confirmed bishops, the minister is prosecuted for a felony hate crime.

5. Finally, assume that New York law is revised to cover not just the offenses that are now specified in the hate crime statute, but also any other crime, such as blocking traffic and the like. This means that anyone who acts illegally in the course of a protest motivated by someone's race, religion, religious practice, sexual orientation, and the like — for instance, steps out on the street in a way that blocks traffic, or throws papers on the ground in violation of a littering ordinance — would be eligible for extra punishment because of why he was protesting.

The first scenario is real; the others are hypothetical; but it seems to me that they are hard to distinguish from each other. What should we think about them?

It seems to me that this sort of use of the hate crime statutes is at least very dangerous to free speech, and may well be unconstitutional. Unfortunately, people sometimes act in illegal — often mildly illegal — ways when engaged in protest. It's right to punish them for such actions. But it seems to me that they shouldn't be punished more (potentially much more, as when a misdemeanor is turned into a felony) because they were motivated by disapproval of a religion, a religious practice, a sexual orientation, and the like, or were motivated by a desire to offend people based on these criteria.

Such additional punishment is not, it seems to me, primarily punishment for the crime (since that would have been covered by the unenhanced punishment), or even for the discriminatory selection of a crime's target. Rather, it is punishment for the ideology that motivated the crime. And it will deter even speakers who have that ideology but have no plans to commit any crimes: Even such speakers may face substantial extra punishment if they recklessly — or, if the law is broadened, even grossly negligently — damage some property in the course of their speech (see example 2 above, though you can similarly adapt the other examples), refuse in the heat of the moment to comply with a command to leave property (see examples 3 and 4), or do something that may be misinterpreted as intentional misconduct.

In Wisconsin v. Mitchell (1993), the Court did indeed uphold a law that increased the punishment of criminals who "[i]ntentionally select[ed] the person against whom the crime ... [was] committed ... because of the race, religion, color, disability, sexual orientation, national origin or ancestry of that person." And indeed, given that even legal conduct (e.g., firing someone, refusing to rent to someone, and so on) can be made civilly actionable when it is done because of the target's race, religion, and the like, I think criminal conduct can be punished more when the target is selected because of the target's attributes.

But it doesn't necessarily follow that the law should be free to increase the punishment not just because the criminal was discriminating in choice of victims, but because the criminal was hostile to some other person based on that person's religion, religious practice, sexual orientation, or race — which often means that the criminal simply disapproved of some group, even when the target of the crime was not discriminatorily chosen. Nor does it follow that the law should be free to increase the punishment because the criminal was trying to insult some group.

And even if the First Amendment does give the government a free hand in enhancing punishments on such bases — which Mitchell could be read as approving, though I don't think it has to be so read — the Shmulevich case and the other examples are good reasons to resist such laws. The criminal should be punished for committing a crime. But he shouldn't be punished any extra because his intentionally damaging a book, recklessly damaging someone's property, or trespassing was motivated by his hostility to Islam, fundamentalist Christianity, Scientology, or whatever else.

A Bit of Perspective on the Use of Feces and Toilets in Protests:

As I've noted below, I think it's wrong for Stanislav Shmulevich to face felony prosecution for stealing and destroying two books from the Pace library.

At the same time, let's have a bit of perspective here: Throwing books in the toilet and defecating on them is a strikingly vulgar and juvenile way of expressing yourself, and would be even if Shmulevich had refrained from theft and vandalism and did this with his own Koran (and cleaned up after himself so as not to jeopardize Pace's plumbing).

That Shmulevich is being mistreated here shouldn't lead us to lose sight of the fact that his actions, even setting aside the theft, are hardly admirable.