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Government Police Are the Latest Persecuted "Victim" Group

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05/31/2018

An audio version of this Mises Wire is available here.

On May 16, the Protect and Serve Act of 2018 passed in the House and is currently pending in the Senate. The main effect of the bill would be to enhance the ability of the federal government to prosecute individuals charged with knowingly assaulting or attempting to assault a law enforcement officer. Some have observed that the proposed legislation would offer hate crime protections to police officers, making police officers an even more protected class.

There are numerous issues with this proposal. One is that it is a solution in search of a problem. As I noted previously, felonious deaths of police officers has been on a long-term downward trend. The bill's sponsors reference a Department of Justice report on police ambushes, which includes the following graph, leaving one to wonder what they saw in it that would lead them to believe that such legislation is now necessary.

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Another issue is its dubious constitutionality. As Ilya Somin notes , the Protect and Serve Act relies on the same constitutional premises as the Violence Against Women Act, which is that violence against police (or women) affects interstate commerce, and is therefore under the regulatory authority of the federal government. In United States v. Morrison (2000), the Supreme Court struck down a provision of the Violence Against Women Act, stating that such an interpretation of the Commerce Clause would allow the federal government to regulate essentially anything. Of course, this was later undermined by the Gonzalez v. Raich (2005) decision, in which the Supreme Court decided that federal law enforcement could confiscate marijuana plants grown for individual consumption because even such purely local acts could affect the national market. Like in Wickard v. Filburn (1942), the Court decided that one can apparently affect interstate commerce by not participating in it. In light of decisions like these, it's unclear how SCOTUS might interpret the legitimacy of the Protect and Serve Act if signed into law.

A further issue is how the law will actually be enforced. Radley Balko points out that there have been cases where "district attorneys or grand juries have declined to charge the targets of drug raids who shot at police" breaking into their home and that the proposed legislation would give an opportunistic federal prosecutor the ability to override local decision-making. At best, the legislation is redundant.

Balko also accuses most the bill's supporters as "incredibly hypocritical," given their supposed commitment to federalism. He argues, "it creates a federal crime from behavior that is more than adequately addressed at the state and local levels." This criticism is justified. However, what seems to have gotten less attention is the selectivity, if not hypocrisy, of certain individuals and groups opposed to the legislation but not to hate crime legislation as such. This leads to a shaky foundation from which to criticize the bill.

Take the ACLU, for example, which has signed an open letter in opposition to the Protect and Serve Act. In this letter, they list a number of reasons for their disagreement with the bill, some of which are the same as those mentioned above, but with the additional criticism that hate crimes "are crimes motivated by a victim’s status as a member of a historically persecuted or discriminated-against group."

This is quite strange, however, given some of the ACLU's past actions. In Wisconsin v. Mitchell (1993), a case involving a black man who was convicted of assaulting a white boy, at issue was the constitutionality of the enhanced penalties against Mitchell based on the incident's classification as a hate crime. The Wisconsin Supreme Court overturned the sentence enhancement, arguing that it was a violation of Mitchell's First Amendment rights. The US Supreme Court, however, affirmed the enhancement. The ACLU filed an amicus brief in support of the hate crime sentence enhancement, even though the victim did not belong to what they would consider to be a historically persecuted group.

Additionally, it is currently legal in some contexts to discriminate against the police, whereas it would be illegal to discriminate against protected classes in the same context. Consider the Hasta Muerte Coffee shop in Oakland, which does not offer its services to police officers, making police officers a "discriminated-against group." This may seem like a trivial example of discrimination, but the ACLU cannot make this claim, as they have called asking people to leave a coffee shop after not buying anything demeaning, unfair, and totally disrespectful . Although one might argue that hate crimes are based on bias regarding immutable characteristics, which being a police officer is not, this is not true of all civil rights groups. Some organizations that support states in their efforts to prosecute hate crimes include mutable characteristics, such as one's occupation, in their definition of what can constitute a hate crime.

Ultimately, these groups that are solidly against the Protect and Serve Act, and yet solidly in favor of other hate crime legislation, are throwing stones from, if not a glass house, then perhaps a rotting house built on sand. Despite these groups' emphasis on equality, their support for giving certain groups special legal privileges or status is contrary to the ideal of equality before the law. What their objection comes down to is that some classes or groups are more equal than others, and police officers are in the latter group.

Tate Fegley is a 2018 Mises Institute Fellow, and winner of the 2018 Grant Aldrich Prize for Best Graduate Student paper at the Austrian Economics Research Confernce. He is currently a graduate student at George Mason University.

Note: The views expressed on Mises.org are not necessarily those of the Mises Institute.
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