California's Civil and Criminal Laws Pertaining to Hate Crimes
(Updated as of September 18, 1997 by Kathleen W. Mikkelson, Deputy Attorney General, Civil
Rights Enforcement Unit, Oakland) Civil Statutes 1)"The Ralph Act
," Civil Code sections 51.7 and 52--provides that it is a civil right for a person to be free of violence or its threat against the person or his or her property, because of a person's race, color, religion,
ancestry, national origin, political affiliation, sex, sexual orientation, age or disability or position in a labor dispute, or because a person is perceived to have one or more of these characteristics--(bases of
discrimination are illustrative, rather than restrictive) Enforced by the Department of Fair Employment and Housing, which prosecutes, and the Fair Employment and Housing Commission, which adjudicates, and by the
Attorney General, any district or city attorney and by private attorneys. Provides for civil penalties of up to $25,000 for perpetrators, civil remedies to victims of "hate violence," three times actual
damages, but no less than $1000, punitive damages, injunctive relief and attorney's fees 2) "The Bane Act."
Civil Code section 52.1 --provides protection from interference by threats, intimidation, or coercion or for attempts to interfere with someone's state or federal statutory or constitutional rights (these include association, assembly, due process, education, employment, equal protection, expression, formation and enforcement of contracts, holding of public office, housing, privacy, speech, travel, use of public facilities, voting, worship, and protection from bodily restraint or harm, from personal insult, from defamation, and from injury to personal relations)-- proof of "hate motivation" required, according to a 1994 Court of Appeal decision in
Boccato v. City of Hermosa Beach Enforced by Attorney General, any district attorney or city attorney, or a private attorney
Provides for civil penalties for perpetrators, civil remedies to victims of "hate violence," three times actual damages, but no less than $1000, punitive
damages, injunctive and other equitable relief (violation of the injunctive relief is punishable by a criminal contempt action, with a penalty of six months in jail and/or a fine not exceeding $1000) and attorney's fees
Speech alone is not sufficient to support an action under the Bane Act, unless the speech itself threatens violence against a specific person or group of
persons, and the person or group of persons against whom the threat is directed reasonably fears that, because of the speech, violence will be committed against them or their property and that the person threatening the
violence had the apparent ability to carry out the threat No order shall restrict the content of a person's speech An order restricting the time, place or manner of any person's speech shall do so only to the
extent reasonably necessary to protect the peaceable exercise or enjoyment of constitutional or statutory rights, consistent with the constitutional rights of the person sought to be enjoined
Liability
Perpetrators
Conspirators
Acts of agents or employees
Standing to Sue
Victim has standing
So do associates of protected
class, if also subjected to violence or threats of violence Actual Damages
Include medical expenses, impaired earning capacity, lost property value, pain, suffering, emotional
distress and loss of services Punitive Damages
Available for violations of Civil Code sections 51.7 or 52.1Must prove that defendant acted with malice, fraud or oppression
Courts will take into account how reprehensible the conduct was, the defendant's financial condition, and the amount of actual damages
Department of Fair Employment Housing complaints cannot seek punitive damages Temporary Restraining Orders, Preliminary and Permanent Injunctions
Means of securing the attention and cooperation
of police and law enforcement agencies Bane Act's Civil Code section 52.l(e)
requires that Bane Act injunctive orders be served on the law enforcement agencies having jurisdiction where the plaintiff resides and any other locations where the court determines that acts of violence against the plaintiff are likely to occur--two copies are served on law enforcement; law enforcement serves one on defendant--if officer called in response to violation of order, police agency is required to provide the responding officer a copy of the order
Permits enforcement in civil contempt or criminal prosecution
Applicable Penal Code Statutes (part of the Bane Act) Penal Code section 422.6(a): Provides it is a misdemeanor to interfere by force or threat of force with
a person's state or federal statutory or constitutional rights
because of his or her race, color, religion, ancestry, national origin, disability, gender or sexual orientation or because the victim is perceived to have one or more of these characteristics. (Penalty: up to one year in jail, or $5000, or both.)
Penal Code section 422.6(b):
Provides it is a misdemeanor to damage a person's property
because of his or her race, color, religion, ancestry, national origin, disability, gender or sexual orientation or because it is perceived that he or she has one or more of the above characteristics. (Penalty: up to one year in jail or $5000 or both.)
Penal Code section 422.7:
Provides that actions which are normally misdemeanors can become felonies if committed because of bigotry
based on race, color, religion, ancestry, national origin, disability, gender, or sexual orientation or because the victim is perceived to have one or more of the above characteristics (with the exception of a person punished under section 422.6.) (Penalty: up to one year in jail or prison and/or a $10,000 fine.)
Penal Code section 422.75:
Provides for sentencing enhancements
of one to three years for certain bias-motivated felonies against the aforementioned groups, or against persons perceived to belong to one or more of the aforementioned groups; for heightened penalties of two to four years if the felony hate crime was committed in concert with another; adds a year if the defendant had a prior hate crime conviction; provides that use of firearm can be aggravating factor; and provides that persons who commit or attempt to commit felonies against the property owned or rented by a public agency or private institution or the grounds adjacent thereto because the property is identified or associated with a member of or one of the aforementioned groups can be subject to a one-three year sentencing enhancement.
Penal Code section 422.8:
Provides that nothing in sections 422.6 or 422.7 prevents or limits the prosecution of any person. Penal Code section 422.9(a): Provides it is a misdemeanor punishable by up to six months in jail or
$1000 or both to violate an order issued pursuant to Civil Code section 52.l(a) or (b).
Penal Code section 422.9(b): Provides up to one year in jail for a person previously convicted of violating an order issued pursuant to Civil Code
section 52.1 (a) or (b) who is brought and tried upon separate charges.
Penal Code section 422.9(c): Mandates that county prosecuting agencies have the primary responsibility
for enforcing orders issued pursuant to Civil Code section 52.1.
Penal Code section 422.95 (a) and (b):
Provides that if a person is granted probation for any Penal Code section 422.6, 422.7, 422.75, 594.3 or 11411 offense, the court may order the defendant to complete a class or program on racial or ethnic sensitivity
or other similar training in civil rights if such class or program is available as a condition of probation; to make payments or other compensation
to a community-based program or local agency that provides services to victims of hate violence; and to reimburse the victim for reasonable costs of counseling and other expenses. Any payments or compensation are in addition to restitution payments required under Penal Code section 1203.04.
Penal Code section 422.95(c):
States that it is the intent of the Legislature to encourage counties, cities, and school districts to establish education and training programs to prevent violations of civil rights and hate crimes. Miscellaneous Penal Code provisions relating to hate crimes Penal Code section 136.2 Protective orders
Some protections against further harm to, intimidation of, or dissuasion of hate crimes victims and witnesses by the accused perpetrator are
available through the district attorney or city attorney who is prosecuting the hate crime. Once criminal charges are filed under the Bane Civil Rights Act, or under any other criminal
statute, hate crimes victims have the right to a court order prohibiting any additional harassment, or any communication or contact at all. Once a section 136.2 order is issued, copies are
distributed to each protected person, each defendant, and to the appropriate law enforcement agency. Orders are immediately enforceable by law enforcement agencies. Violation of
order can be misdemeanor, or felony, if accompanied by force or threat of force. Penal Code section 139:
Creates a felony
when someone already convicted of a felony communicates to witnesses, victims, informants or their immediate families a credible threat to use force or violence. (Penalty: one year in jail or two-four years in prison.)
Penal Code section 140:
Creates a misdemeanor
when someone communicates to witnesses, victims, informants or their immediate families a credible threat to use force or violence but does not require that the perpetrator already be convicted of a related crime. (Penalty: One year in jail or two-four years in prison)
Penal Code section 185:
Provides that it is a misdemeanor for any person to wear any mask, false whiskers or any personal disguise (whether complete or partial) for the purpose of evading or escaping discovery, recognition, or identification in the commission of any public offense.
Penal Code section 190.2(a)
(16): Provides a death penalty or sentence of life in prison without possibility of parole for murder because of the victim's race, color, religion, nationality or national origin.
Penal Code section 302:
Establishes a misdemeanor to intentionally disturb a group of people who have met to worship. (Penalty: $1000 fine and/or one year in jail; court can also require community service.)
Penal Code section 594.1:
Makes it unlawful for a minor to purchase or any person or entity other than a parent to provide a minor with aerosol paint containers
in excess of six ounces. (Court can order community service, graffiti removal or counseling.)
Penal Code section 594.3: Provides that it is a felony or misdemeanor to knowingly vandalize a place of worship
. (Penalty: one year in jail or prison.) Penal Code section 640.2:
Provides that any person who stamps, prints, places or inserts any writing in or on any box, package or other container containing a consumer product offered for sale is guilty of a misdemeanor.
Penal Code section 1170.75: Provides
additional punishment for felonies committed because of a victim's race, color, religion, etc., or because the victim is perceived to have one or more of the above-mentioned characteristics unless already punished
under Penal Code sections 422.75 or 1170.8. Penal Code section 1170.8: Provides additional punishment for robbery or assault of persons within a place of worship. Penal Code section 1170.85: Provides additional punishment for felonies committed against the aged or
disabled. Penal Code section 1547:
Authorizes the Governor to offer a reward of not more than $50,000
payable out of the General Fund for information leading to the arrest and conviction of any person who has committed or is charged with the commission of a felony that is punishable under Penal Code section 422.75 and that resulted in serious bodily injury or property damage of more than $10,000; authorizes reward of up to $100,000 from general fund for information leading to the arrest and conviction of a person committing arson upon a place of worship.
Penal Code section 11410:
States that the urging of violence where harm is possible is conduct not protected by the California Constitution. Penal Code section 11411: Provides that it is a misdemeanor to cause a person to fear for his or her
safety by burning a cross or by displaying racist signs. Penal Code section 11412:
Provides that it is a felony to attempt to discourage religious activities by threats of violence. Penal Code section 11413: Provides that it is a felony to use a bomb against or to set on
fire a Place of worship or any private property
if the property was targeted because of the race, color, religion, ancestry, national origin, disability, gender or sexual orientation of the owner or occupant of the property and the purpose was to terrorize another or was in reckless disregard of terrorizing another.
Penal Code section 13023
requires the Attorney General to collect statistical information on hate crimes and defines hate crimes
as "any criminal acts or attempted criminal acts to cause physical injury, emotional suffering, or property damages where there is a reasonable cause to believe that the crime was motivated, in whole or in part, by the victim's race, ethnicity, religion, sexual orientation, or physical or mental disability."
Penal Code section 13519.6
provides that the Peace Officer Standards and Training Commission within the California Department Justice shall develop guidelines and a course of instruction and training in hate crimes for law enforcement officers who are employed as peace officers or enrolled in a training academy for law enforcement officers.
Education Code Provisions re Hate Crimes In 1994 the Legislature enacted the California Schools Hate Violence Reduction Act of 1995. This Act requires the State Board of Education, if private funds
are available, at the request of the Superintendent of Public Instruction, to do the following: 1) adopt policies and guidelines to prevent and respond to acts of violence; 2)
revise existing state curriculum, frameworks and guidelines and the moral and civic education curricula to include human relations education; 3) establish guidelines for use in teacher
and administrator in-service training programs: a) to promote an appreciation of diversity; b) to discourage discriminatory attitudes and practices among pupils, teachers, administrators, and counselors; and c) to
enable teachers and administrators to prevent and respond to acts of hate violence; 4) revise guidelines previously adopted by the board to include procedures to prevent and respond to acts of hate
violence; and, 5) encourage teachers to impress upon the minds of pupils the meaning of equality and human dignity and to foster an environment that is free from discriminatory attitudes,
practices, events, or activities, in order to prevent acts of hate violence. (Education Code sections 45, 33032.5 and 44806) Among the grounds for the suspension or expulsion of a pupil in grades four through 12 is now
the commission of acts of hate violence (See Education Code section 48900.3 and 48915.)
For
additional information on current information
or bills pending regarding hate related material:
(external sites)
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