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Civil Rights
California's Civil and Criminal Laws Pertaining to Hate Crimes
(Updated as of February 25, 1999 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 52.1
Must 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 52.1(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 and the court shall order the defendant to perform a
minimum of community service, not to exceed 400 hours, to be
performed over a period of not to exceed 350 days, during a time
other than his or her hours of employment or school attendance.)
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 422.76 defines gender for purposes of
various hate crime statutes to mean the victim's actual sex or the
defendant's perception of the victim's sex and includes the
defendant's perception of the victim's identity, appearance, or
behavior, whether or not that identity, appearance or behavior is
different from that traditionally associated with the victim's sex at
birth.
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 52.1(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 counselling 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 186.21: Legislature finds and declares that
it is the right of every person, regardless of race, color, creed,
religion, national origin, gender, age, sexual orientation, or
handicap, to be secure and protected from fear, intimidation, and
physical harm caused by the activities of violent groups and
individuals. (This is part of the "California Street Terrorism
Enforcement and Prevention Act," enacted in 1988.)
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 538(c): Provides that any person who
attaches or inserts an unauthorized advertisement in a newspaper
offered for sale or made available for free and who redistributes it
or has the intent to redistribute it to the public shall be guilty of
a misdemeanor.
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 counselling.)
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; in this section the Legislature finds that it is the
right of every person, regardless of race, color, creed, religion,
gender, or national origin to be secure and protected from fear,
intimidation and physical harm caused by the activities of violent
groups and individuals.
Penal Code section 11411: Provides that it is a misdemeanor to
cause a person to fear for his or her safety by displaying racist
signs on the private property of another, without authorization, for
the purpose of terrorizing the owner or occupant of that private
property or in reckless disregard of the risk of terrorizing them;
provides that it is a misdemeanor or a felony to engage in a pattern
of conduct for the purpose of terrorizing the owner or occupant of
private property or in reckless disregard of terrorizing the owner or
occupant of that private property by placing a racist symbol on that
property on two or more occasions; and provides that any person who
burns or desecrates a cross or other religious symbol, knowing it to
be a religious symbol, on the private property of another without
authorization for the purpose of terrorizing the owner or occupant or
in reckless disregard of terrorizing them, or who burns, desecrates
or destroys a cross or other religious symbol, knowing it to be a
religious symbol, on the property of a primary school, junior high
school or high school, for the purpose of terrorizing any person who
attends, works at or is otherwise associated with the school shall be
guilty of a felony or misdemeanor.
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, gender,
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 of
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. Hate crime for the purpose of this section
means any act of intimidation, harassment, physical force, or the
threat of physical force, directed against any person, or family, or
their property or advocate, motivated either in whole or in part by
the hostility to the real or perceived ethnic background, national
origin, religious belief, gender, age, disability or sexual
orientation, of that person with the intention of causing fear and
intimidation.
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.)
California's Victims of Crime Program
Under Government Code sections 13959-13969.4, some crime
victims may be eligible for financial assistance for unreimbursed
expenses resulting from the crime.
Important California Cases Interpreting California Hate Crime
Statutes
California Supreme Court cases
In re M. S. (1995) 10 Cal. 4th 698 ( California Supreme Court upheld
the constitutionality of California's hate crime statutes, rejecting
defense claims that the laws are overbroad, vague, or impermissible
content-based regulation of speech; the court also ruled that when a
defendant has multiple motives for committing a crime, the kind of
bias prohibited by the hate crime law must be a substantial factor in
bringing about the crime before the crime will be considered a hate
crime.)
People v. Superior (Aishman) (1995) 10 Cal. 4th 735 (Penal Code
section 422.75, which provides for imposition of a sentence
enhancement for felonies committed because of the victim's actual or
perceived race, color, nationality, country or origin, ancestry,
disability or sexual orientation, does not need to be read to include
a specific intent requirement; this section will also be interpreted
to require that when multiple concurrent causes for the offense
exist, if the bias motivation is a substantial factor in bringing
about the offense, the perpetrator's sentence can be enhanced.)
California Court of Appeal Cases
Coon v. Joseph (1987) 192 Cal.App.3d 1269 (Plaintiff, who witnessed
attack on male lover, was not allowed to bring suit under Ralph Act.)
J.R. Norton Co. v. General Teamsters, Warehousemen and Helpers Union,
Local 890 (1989) 208 Cal.App.3d 430 (Violence by striking employees
constituted a violation of section 51.7 and warranted a civil
penalty.)
In re David L. (1991) 234 Cal.App.3d 1655, rev. den. 1992 (Penal Code
section 422 does not require showing of gang membership; threat to
intended victim can be conveyed through third party; person making
threat must have specific intent that it be taken as a threat but
need not have intent to carry out threat.)
People v. Lashley (1991), 1 Cal.App.4th 938 rev. den. 1992, cert. den., (1992) (court held that Penal Code sections 422.6 and 422.7
require proof that the defendant possessed a specific intent to
deprive an individual of a right secured by federal or state law, and
that the evidence supported the conclusion that defendant interfered
with the victims in their exercise and enjoyment of the right to be
free from violence.)
People v. Fisher (1993), 12 Cal.App.4th 1556 (court upheld
constitutionality of Penal Code section 422 and rejected arguments
that it was overbroad, criminalized protected speech, and was
intended to apply only to gang-related activity.)
In re Joshua H. (1993) 13 Cal.App.4th 1734, rev. den. (1993) (Penal
Code section 422.7 does not violate the First Amendment; it does not
proscribe expression, but it proscribes the conduct of selecting
crime victims on the basis of race, color, religion, ancestry,
national origin or sexual orientation.)
In re Steven S. (1994) 25 Cal. App. 4th 598, rev. den. (1994) (court
upheld the constitutionality of a cross-burning statute)
Boccato v. City of Hermosa Beach (1994) 29 Cal. App. 4th 1797, reh.
den. (1994) (In action against city by owners of two stores selling
alcoholic beverages challenging the validity of an ordinance
requiring them to obtain conditional use permits in order to continue
to sell alcoholic beverages, plaintiffs did not state a Civil Code
section 52.1 claim because they did not allege that they were among
the protected classes specified in the statute; read together, Civil
Code sections 51.7 and 52.1 require that a plaintiff claiming
interference with his or her right must also allege that the
interference was due to his or her race, color or other protected
classification.)
Gates v. Superior Court (1995) 32 Cal.App.4th 481 (Defendant police
officers were immune from Ralph Act claim for money damages because
of immunity provided by Government Code section 845.)
People v. MacKenzie (1995) 34 Cal. App. 4th 1256, rev. den. (1995)
(In prosecution for the hate crime of brandishing a firearm for the
purpose of interfering with the civil rights of an African-American,
court held that Penal Code section 422.7 was not void for vagueness;
prosecution need not show that defendant acted with knowledge of
particular provisions of state or federal law or that he was even
thinking in those terms; it is sufficient if the right is clearly
defined and the defendant intended to invade interests protected by
constitutional or statutory authority; section 422.7 does not violate
equal protection principles since it properly punishes the
discriminatory violent offender more harshly than the random violent
offender; the statute regulates conduct, not speech.)
Bay Area Rapid Transit Dist. v. Superior Court (1995) 38 Cal. App.
4th 141 (The Bane Act is not a wrongful death provision. It provides
for a personal cause of action for the victim of a hate crime and is
thus limited to plaintiffs who themselves have been the subject of
violence or threats.)
Jones v. KMart Corp. (1998) 17 Cal.4th 329 (When a section 52.1 claim
is based on a constitutional right that can only be violated by state
action, an action only lies against parties whose conduct is
chargeable to the state, not against store employees who engaged in
aggressive search and seizure.)
California Federal Hate Crime Cases
Diem v. City and County of San Francisco (N.D. Cal. 1988) 686 F.
Supp. 806 (Ralph Act claims for religious and other discrimination
are not preempted by the Fair employment and Housing Act, Government
Code section 12900, et seq.)
Rose v. City of Los Angeles (C.D. Cal. 1993) 814 F.Supp. 878 (A claim
under the Ralph Act may not be brought when no violence or
intimidation has been committed or threatened against the plaintiff.)
Burnette v. Godshall (N.D. Cal. 1993) 828 F.Supp. 1439 (An
individual's Ralph Act rights are non-negotiable, and thus may not be
preempted by collective bargaining agreements.)
Doe v. Petaluma City School Dist. (N.D.Cal. 1993) 830 F.Supp. 1560
(While several sections of the Government Code immunize school
officials from claims of infliction of emotional distress, such
immunity does not extend to Bane Act claims.)
Rabkin v. Dean (N.D. Cal. 1994) 856 F.Supp. 543, 552 (Interference
with rights must rise to violence or threat of violence to be
actionable under the Bane Act.)
Reynolds v. County of San Diego (S.D. Cal. 1994) 858 F.Supp. 1064,
1074 (Court dismissed plaintiff's section 52.1 claim for failure to
allege the violation of a state right where defendant was immune from
suit claiming violation of federal rights.)
Beliveau v. Caras (C.D.Cal. 1995) 873 F.Supp. 1393 (Plaintiff had a
Ralph Act claim against the owner of her apartment building for the
sexual battery committed by his employee, the resident manager, while
he was in her apartment to fix a leaky faucet.)
Gaston v. Colio (S.D.Cal. 1995) 883 F.Supp. 508, 510 (No allegation
of discrimination in the complaint, so no standing under Ralph Act or
Bane Act.)
Important United States Supreme Court Hate Crime Cases
R.A.V. v. City of St. Paul (1992) 505 U.S. 377 (Supreme Court struck
down city ordinance proscribing messages of racial, gender, or
religious intolerance, because it made criminal only those types of
expression which were disfavored by the city council; this was held
to be impermissible content-based restriction of speech.)
Wisconsin v. Mitchell (1993) 508 U.S. 476 (Mitchell's First Amendment
rights were not violated by the application of a penalty-enhancement
provision for hate crimes in sentencing him; Wisconsin statute is
aimed at conduct unprotected by the First Amendment; state's desire
to redress greater individual and societal harm inflicted by bias-inspired conduct was motive for passing statute, not disagreement with offenders' beliefs or biases; statute has no chilling effect on free speech.)
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