State v. Stalder

We have for review a trial court order declaring section 775.085, Florida Statutes (1989), commonly referred to as Florida’s Hate Crimes Statute, unconstitutional. The order was certified by the district court as passing on an issue of great public importance requiring immediate resolution by this Court. We have jurisdiction. Art. V, § 3(b)(5), Fla. Const. We quash the order.

Herbert Cohen went to Richard Stalder’s home on April 14, 1991, to retrieve the earrings of a friend. Stalder then assaulted Cohen and maligned his Jewish heritage, according to the police complaint affidavit:

On the above date the victim went [to] the above address [with] his friend, Denise Avard, [she] being a victim of a battery. The victim made contact with the above subject and when the above answered the door, he stated “Hey Jew boy, what do you want?” The victim stated that he was looking for Denise Avard’s earrings. According to sworn statements of both the victim and Denise Avard, the above subject started to yell statements to the victim about his Jewish descent. At one point the above subject pushed the victim and this was witnessed by the subject, Denise Avard. The victim called the police and the above went into his house and locked the door and refused to answer the door. According to the victim, about two months later the victim was by Denise Avard’s house and the above subject drove by in a vehicle and yelled at the victim “Hey Jew boy, I’ll see you in court.”

On the court date the victim went to court and was confronted by the above subject, who stated, “Hey Jew boy, suck on my cock.” The victim in giving a statement to this officer feels that the above subject has a hate for Jewish people and that the above subject has a mind set against people who are Jewish. Every time the victim comes in contact with the above subject he makes obscene remarks against him and the Jewish religion. The undersigned detective feels that the victim does have the right to believe that the above subject hates Jews. Statements from both the witness and victim indicate that the charge of battery could be.upgraded to a “hate crime.”

The State noted as additional proof of Stalder’s commission of a “hate crime” the fact that he denounced Cohen during the initial encounter at Stalder’s home as a “Jewish lawyer”: “Jew boy, you fat Jewish lawyer get the hell off my property_” and “Jewish kike, come on Jewish lawyer ... I’m going to kick your ass....”

Stalder was charged with violating section 784.03(1), Florida Statutes (1989) (simple battery) for pushing Cohen, and the penalty was subject to reclassification pursuant to section 775.085(1) from a first-degree misdemeanor to a third-degree felony. The trial court granted Stalder’s pretrial motion to dismiss the enhancement charge, adopting Stalder’s argument that the statute violates the Free Speech Clause of the United States Constitution. The State appealed and the district court certified the matter as requiring immediate resolution by this Court.

Stalder contends that the statute is both vague and overbroad and punishes pure thought and expression in violation of the First Amendment. The State, on the other hand, contends that section 775.085 is neither unconstitutionally vague nor overbroad — the statute simply enhances punishment for those crimes that are committed because the victim has one of several identified characteristics. It is the State’s position that the statute punishes criminal action, not speech, and thus does not implicate the First Amendment.

We note that Florida’s district .courts are in disagreement on this issue. See Richards v. State, 608 So.2d 917 (Fla. 3d DCA 1992) (section 775.085 void for vagueness); Dobbins v. State, 605 So.2d 922 (Fla. 5th DCA 1992) (section 775.085 neither vague, over-broad, nor violative of the First Amendment).

Section 775.085 requires penalty enhancement where the commission of any felony or misdemeanor evidences prejudice based on certain characteristics of the victim:

775.085 Evidencing prejudice while committing offense; enhanced penalties.—

(1) The penalty for any felony or misdemeanor shall be reclassified as provided in this subsection if the commission of such felony or misdemeanor evidences prejudice based on the race, color, ancestry, ethnicity, religion, or national origin of the victim:

(a) A misdemeanor of the second degree shall be punishable as if it were a misdemeanor of the first degree.

(b) A misdemeanor of the first degree shall be punishable as if it were a felony of the third degree.

(c) A felony of the third degree shall be punishable as if it were a felony of the second degree.

(d) A felony of the second degree shall be punishable as if it were a felony of the first degree.

Section 775.085(1), Fla.Stat. (1989).

Giving plain meaning to the statute’s text and title, the provision punishes all who “evidence,” or demonstrate, prejudice in the commission of a crime based on an enumerated characteristic of the victim. The statute has three requirements: 1) The perpetrator must demonstrate prejudice, or bias; 2) the bias must be evidenced in the commission of a crime; and 3) the bias must be based on one or more of the enumerated characteristics of the victim. In assessing the constitutionality of this bias-evidencing crimes statute, we turn to two key United States Supreme Court cases: one dealing with bias-inspired expression; the other addressing bias-motivated crimes.

The United States Supreme Court recently addressed the issue of bias-inspired expression in R.A.V. v. City of St. Paul, — U.S. -, 112 S.Ct. 2538, 120 L.Ed.2d 305 (1992). There, a juvenile allegedly burned a cross made of broken chair legs on an African-American family’s lawn in the early morning hours of June 21,1990, and was charged with violating a St. Paul, Minnesota, ordinance that bans use of discriminatory symbols or other bias-inspired expression:

Whoever places on public or private property a symbol, object, appellation, characterization or graffiti, including, but not limited to, a burning cross or Nazi swastika, which one knows or has reasonable grounds to know arouses anger, alarm or resentment in others on the basis of race, color, creed, religion or gender commits disorderly conduct and shall be guilty of a misdemeanor.

St. Paul, Minn. Legis.Code § 292.02 (1990). The trial court held that the ordinance violated the First Amendment, but the state supreme court reversed, ruling that because the ordinance reached only expressive activity falling under the rubric of “fighting words” the Free Speech Clause was unavailable. The court noted that this category of expression has traditionally received no First Amendment protection. In re Welfare of R.A.V., 464 N.W.2d 507 (Minn.1991).

The United States Supreme Court disagreed and held the St. Paul ordinance unconstitutional. The Court reasoned thusly: The First Amendment prevents government from banning expressive activity because of disapproval of content or ideas except in certain narrowly defined instances where the category of expression involved is of little social value, such as where the speech constitutes “fighting words.” Even with “fighting words,” however, a government restriction must operate across the board and may not classify and ban only certain types of “fight-tog words,” for instance only those directed against others based on “race, color, creed, religion or gender.” Such a restriction would open the door to government favoritism and protectionism of certain topics and viewpoints and implicit censorship of disfavored ones, as was the case with the St. Paul ordinance:

Although the phrase in the ordinance, “arouses anger, alarm or resentment in others,” has been limited by the Minnesota Supreme Court’s construction to reach only those symbols or displays that amount to “fighting words,” the remaining, unmodified terms make clear that the ordinance applies only to “fighting words” that insult, or provoke violence, “on the basis of race, color, creed, religion or gender.” Displays containing abusive invective, no matter how vicious or severe, are permissible unless they are addressed to one of the specified disfavored topics. Those who wish to use “fighting words” in connection with other ideas — to express hostility, for example, on the basis of political affiliation, union membership, or homosexuality — are not covered. The First Amendment does not permit St. Paul to impose special prohibitions on those speakers who express views on disfavored subjects.

R.A.V., — U.S. at-, 112 S.Ct. at 2547. The Court noted in conclusion that an ordinance operating across the board would have precisely the same salutary effect in combating discrimination but would run no risk of government favoritism and censorship.

A year after it decided R.A.V., the United States Supreme Court addressed the constitutionality of a state hate crimes statute punishing bias-motivated crimes in Wisconsin v. Mitchell, — U.S.-, 113 S.Ct. 2194, 124 L.Ed.2d 436 (1993). There, a group of African-American youths randomly selected and severely beat a white youth in reaction to a scene in the motion picture “Mississippi Burning” wherein an African-American child was beaten while praying. The defendant, Mitchell, was convicted of aggravated battery and his penalty enhanced under the Wisconsin statute, which provides for penalty enhancement whenever the victim of certain crimes is deliberately selected on the basis of enumerated characteristics:

(1) If a person does all of the following, the penalties for the underlying crime are increased as provided in sub. (2):

(a) Commits a crime under chs. 939 to 948.

(b) Intentionally selects the person against whom the crime under par. (a) is committed or selects the property which is damaged or otherwise affected by the crime under par. (a) because of the race, religion, color, disability, sexual orientation, national origin or ancestry of that person or the owner or occupant of that property.

Wis.Stat. § 939.645 (1989-1990).

The United States Supreme Court upheld Mitchell's enhanced penalty, ruling that because the Wisconsin statute punishes bias-motivated criminal conduct rather than the expression of ideas the First Amendment is not implicated. In response to Mitchell’s First Amendment claims, the Court pointed out the following: Courts have traditionally taken the defendant’s motive into account during sentencing; racial animus has served as a basis for penalty-enhancement in prior cases; motive plays the same role under the Wisconsin statute that it does under clearly valid antidiscrimination statutes; the Wisconsin legislature reasonably concluded that bias-inspired crime inflicts greater societal harm and is thus deserving of greater punishment than unbiased crime; and the First Amendment has traditionally allowed the evi-dentiary use of defendants’ speech to establish the elements of a crime.

The Wisconsin statute punishes only those who “intentionally select” a victim of a crime “because of’ enumerated characteristics, i.e., it applies only where the underlying crime is bias-motivated. Although such crimes are generally coupled with a bigoted belief or racist conviction, the First Amendment is not implicated because it is the prejudiced conduct in selecting a victim, not the defendant’s ideology, that is targeted.

We conclude that our Florida statute contains elements similar to both the St. Paul ordinance struck down in R.A.V. and the Wisconsin statute upheld in Mitchell. As noted above, section 775.085 proscribes bias-evidencing crimes. A bias-evidencing crime as set out in the statute’s title and text is any crime wherein the perpetrator “evidences prejudice” based on one or more of the enumerated characteristics of the victim “while committing [the] offense.” This category of conduct has been viewed as embracing two broad classes of offenses. See generally Richards; Dobbins.

First are those offenses committed because of prejudice. For instance, A beats B because B is a member of a particular racial group. This class of offense is virtually identical to the bias-motivated crimes proscribed by the valid Wisconsin statute in Mitchell. The targeted activity — the selection of a victim — is an integral part of the underlying crime. As such, the conduct is not protected speech at all, but rather falls outside the First Amendment and may be banned.

Second are those offenses committed for some reason other than prejudice but that nevertheless show bias in their commission. For example, A beats B because of jealousy, but in the course of the battery calls B a racially derogatory term. The targeted conduct here — the expression of bias — is related to the underlying crime in only the most tangential way: The expression and crime share the same temporal framework, nothing more. This tenuous nexus, which amounts to mere temporal coincidence, is irrelevant for constitutional purposes. The proscribed conduct consists of pure expression indistinguishable from the bias-inspired expression targeted by the St. Paul ordinance in R.A.V. and cannot be selectively banned.

The question before us is whether section 775.085 can pass constitutional muster by being read narrowly as proscribing the first class of conduct. We note that in assessing a statute’s constitutionality, this Court is bound “to resolve all doubts as to the validity of [the] statute in favor of its constitutionality, provided the statute may be given a fair construction that is consistent with the federal and state constitutions as well as with the legislative intent.” State v. Elder, 382 So.2d 687, 690 (Fla.1980). Further, “[w]henever possible, a statute should be construed so as not to conflict with the constitution. Just as federal courts are authorized to place narrowing constructions on acts of Congress, this Court may, under the proper circumstances, do the same with a state statute when to do so does not effectively rewrite the enactment.” Firestone v. News-Press Publishing Co., 538 So.2d 457, 459-60 (Fla.1989) (citations omitted).

Here, our legislature has determined that prejudice resulting in criminal acts against members of particular groups inflicts great individual and societal harm and is thus deserving of enhanced punishment. The legislature’s apparent intent is to discourage criminal acts directed against groups that have historically been subjected to prejudicial acts. A reading of section 775.085 as embracing only bias-motivated crimes is entirely consistent with this intent. We note that the Fifth District Court of Appeal has so read the statute:

Appellant first contends that the statute is vague and overbroad. He contends the statute is susceptible of applying to protected speech because it does not require that the prejudice alleged have any specific relationship to the commission of the crime.

This argument seems to concede that if the statute permits enhancement only upon proof, beyond a reasonable doubt, that appellant committed the battery motivated in whole or in part, because Daly was Jewish, the enhanced penalty would be appropriate.

That is precisely the way we read the statute....

Appellant urges that the language can be read to apply to a situation in which the defendant commits a race, color or religious neutral crime (for example, resisting arrest because he thinks he’s innocent), but during the commission of the offense makes a racial slur. We do not agree. The statute requires that it is the commission of the crime that must evidence the prejudice; the fact that racial prejudice may be exhibited during the commission of the crime is itself insufficient.

Dobbins, 605 So.2d at 923.

Based on the foregoing, we hold that section 775.085, Florida Statute (1989), applies only to bias-motivated crimes. So read, the statute is constitutional. A bias-motivated crime for purposes of this statute is any crime wherein the perpetrator intentionally selects the victim because of the victim’s “race, color, ethnicity, religion, or national origin.”

It may seem doubly vile to members of our legal community to denigrate another for being a “Jewish lawyer,” as Mr. Stalder allegedly did, but such an act standing alone is every citizen’s right — so long as the First Amendment breathes. To assault another solely because he or she is a “Jewish lawyer,” on the other hand, is no one’s right. When protected speech translates into criminal conduct, even the Free Speech Clause balks. “While the First Amendment confers on each citizen a powerful right to express oneself, it gives the [citizen] no boon to jeopardize the health, safety, and rights of others.” Operation Rescue v. Women’s Health Center, Inc., 626 So.2d 664, 675 (Fla.1993).

We quash the trial court’s order finding section 775.085, Florida Statutes (1989), unconstitutional and remand for proceedings consistent with this opinion. • We approve Dobbins and disapprove Richards.

It is so ordered.

OVERTON, McDonald and GRIMES, JJ., concur.

KOGAN, J., concurs with an opinion.

HARDING, J., dissents with an opinion, in which BARKETT, C.J., concurs.

. The record before us in State v. Leatherman, No. 80,126, contains scant facts. Leatherman was charged with aggravated assault for pointing a handgun at and threatening the victim. He also was charged with violating section 775.-085(1), Florida Statutes (1989), for evidencing prejudice during the assault. The same trial judge that presided over the Stalder case granted Leatherman's pretrial motion to dismiss the hate crimes charge for the same reasons. The district court certified the case here and the two cases were consolidated. The State has submitted essentially the same brief in both cases and Leath-erman has chosen to take no action pending our ruling in State v. Stalder, No. 79,924.

. Section 775.085 has since been amended to include "sexual orientation” in its list of proscribed factors and to provide:

(3) It shall be an essential element of this section that the record reflect that the defendant perceived, knew, or had reasonable grounds to know or perceive that the victim was within the class delineated herein.

§ 775.085, Fla.Stat. (1991).

. The Court noted several exceptions to this rule that are inapplicable here. See R.A.V. v. City of St. Paul, - U.S. -, -, 112 S.Ct. 2538, 2545-47, 120 L.Ed.2d 305 (1992).

. We quash the corresponding order in consolidated case State v. Leatherman, No. 80,126. See supra note 1.