WEBVTT - Why Anti-Asian Hate Crime Is Not Being Charged Enough 0:00:03.200 --> 0:00:10.520 This is Bloomberg Law with June Brussel from Bloomberg Radio. 0:00:17.560 --> 0:00:20.880 Thousands of people in cities across the country rallied last 0:00:20.880 --> 0:00:24.400 weekend to stop anti Asian hate, a response to the 0:00:24.400 --> 0:00:27.920 wave of violence against Asian Americans and the deadly shootings 0:00:27.920 --> 0:00:31.600 at three Atlanta area spots. At a rally in Los Angeles, 0:00:31.600 --> 0:00:34.880 State Assembly Member David Chew said more must be done 0:00:34.960 --> 0:00:38.479 to stop the violence. After a year of political rhetoric 0:00:38.600 --> 0:00:43.280 demonizing Asian communities, enough is enough. We need leadership across 0:00:43.400 --> 0:00:47.120 our country, in every state, at every level of society 0:00:47.440 --> 0:00:50.279 to take action and bring justice to our victims. We've 0:00:50.280 --> 0:00:52.960 got to stand up to these hate crons. Prosecutors in 0:00:52.960 --> 0:00:55.960 the Georgia case have not yet decided whether to pursue 0:00:55.960 --> 0:00:59.280 a hate crime sentencing enhancement to the murder charges the 0:00:59.280 --> 0:01:02.920 defense and is already facing. In fact, incidents of assault 0:01:02.960 --> 0:01:06.319 and harassment that look like hate crimes are often not 0:01:06.480 --> 0:01:10.399 charged as hate crimes because of the legal requirements. Joining 0:01:10.440 --> 0:01:12.680 me is Jack mcdevit, a professor at the School of 0:01:12.720 --> 0:01:16.880 Criminology and Criminal Justice at Northeastern University and director of 0:01:16.920 --> 0:01:20.760 the Institute for Race and Justice. What is the definition 0:01:20.840 --> 0:01:23.600 the legal definition of a hate crime. I hate crime 0:01:23.800 --> 0:01:27.240 is a criminal incident that's motivated either entirely in part 0:01:27.760 --> 0:01:30.959 by a person's difference. And we're talking about hate crimes, 0:01:31.319 --> 0:01:33.560 we're talking about criminal incidence. We're not talking about things 0:01:33.600 --> 0:01:35.960 that would be non criminal. So, for example, if someone 0:01:36.080 --> 0:01:39.680 uses a racial slur, that's protected speech in the United States, 0:01:39.680 --> 0:01:42.000 so that wouldn't be a hate crime. Even if someone 0:01:42.040 --> 0:01:45.120 gave a speech and said, you know, I believe that 0:01:45.160 --> 0:01:47.520 all of this group should not be in the United States, 0:01:47.640 --> 0:01:50.440 that's not a hate crime. So we're talking about crimes 0:01:50.480 --> 0:01:54.720 like assaults, threats, harassment, things like that that are already 0:01:54.720 --> 0:01:57.680 criminal incident. And then the motivation for it is the 0:01:57.720 --> 0:02:01.040 person's difference. But the important out of that is in 0:02:01.160 --> 0:02:05.080 most states it has to be only partial motivation. So 0:02:05.120 --> 0:02:07.520 in other words, if you think about a crime where 0:02:07.760 --> 0:02:11.079 someone might decide to go rob people and they choose 0:02:11.080 --> 0:02:13.799 to rob immigrants, so people they perceived to be immigrants 0:02:13.880 --> 0:02:16.240 because they think they won't go to the police, and 0:02:16.320 --> 0:02:19.639 that's still a hate crime and a robbery. It seems 0:02:19.639 --> 0:02:21.520 as if it, I don't know, if it's you know, 0:02:21.600 --> 0:02:25.720 the fault of police, the fault of prosecutors that hate 0:02:25.720 --> 0:02:30.359 crimes aren't being charged in all the incidents when they 0:02:30.480 --> 0:02:35.200 could be. That's absolutely true. Both groups have some fault 0:02:35.280 --> 0:02:39.360 in this. So for example, if we're talking about a 0:02:39.440 --> 0:02:42.640 victim comes to the police and says that they were 0:02:42.960 --> 0:02:46.399 a victim of a hate crime, sometimes the police we'll 0:02:46.400 --> 0:02:49.399 tell him, no, it wasn't just go on about your business. 0:02:49.800 --> 0:02:53.080 It was just kids playing or something. And in that way, 0:02:53.919 --> 0:02:56.240 the police would be the ones that were causing it 0:02:56.280 --> 0:02:58.440 not to be recorded as a hate crime. On the 0:02:58.440 --> 0:03:02.400 other side, process cut is frequently say, let's think about 0:03:02.400 --> 0:03:04.360 the cases in Oakland. When you see on the video 0:03:04.440 --> 0:03:07.760 take people being thrown to the ground, that's an assault, 0:03:07.840 --> 0:03:12.280 assault and battery. And what the prosecutor might say is 0:03:12.919 --> 0:03:15.680 with this video, I can get a jury to convict 0:03:15.720 --> 0:03:18.760 pretty easily on an assault and battery charge. But if 0:03:18.800 --> 0:03:21.720 I then add on a hate crime charge that says 0:03:21.800 --> 0:03:24.640 that they assaulted them because they were Asian, I have 0:03:24.720 --> 0:03:27.440 to have different evidence and more evidence to prove that part. 0:03:27.880 --> 0:03:29.799 And it's easy for me to get the conviction on 0:03:29.840 --> 0:03:32.399 the assault. So why would I make my life more 0:03:32.400 --> 0:03:34.679 complicated by trying to get the conviction on the hate 0:03:34.680 --> 0:03:37.800 crime too? And the reason to get the conviction on 0:03:37.840 --> 0:03:42.040 the hate crime is so that the perpetrator, if convicted, 0:03:42.080 --> 0:03:45.440 gets more prison time. I'd say that's one, but not 0:03:45.560 --> 0:03:48.400 the most important reason. The most important reason is to 0:03:48.440 --> 0:03:51.560 say to the members of that community that we understand 0:03:51.680 --> 0:03:55.400 these crimes are motivated by bias, and that we are 0:03:55.440 --> 0:03:57.920 gonna take them seriously and we're going to try to 0:03:57.960 --> 0:04:00.720 protect you. And so the more important reason to use 0:04:00.760 --> 0:04:03.040 the hate crime charge is to send a message back 0:04:03.120 --> 0:04:05.880 to the members of the community that's being attacked that 0:04:05.960 --> 0:04:08.720 we don't share the bias of the offender, and that 0:04:08.880 --> 0:04:11.760 we reject the notion that you shouldn't be in this community. 0:04:12.080 --> 0:04:15.320 Hate crimes are symbolic. The offenders want to send a 0:04:15.320 --> 0:04:18.520 message that we don't want you in our community, our workplace, 0:04:18.560 --> 0:04:21.240 our college, campus, are high school, and we have the 0:04:21.360 --> 0:04:24.240 society have to send a message back that we reject 0:04:24.279 --> 0:04:27.520 those notions, that we want a more diverse society and 0:04:27.520 --> 0:04:30.599 we want everyone to be a functioning part of that society. 0:04:30.839 --> 0:04:35.640 What kind of evidence can a prosecutor introduce to prove 0:04:35.760 --> 0:04:38.200 something is a hate crime. I take it if someone 0:04:38.320 --> 0:04:41.279 yells a slur and while they're committing the crime, but 0:04:41.400 --> 0:04:44.479 what other kinds of things, Well, you're exactly right. The 0:04:44.480 --> 0:04:47.800 most common evidence is nin calling and slur during the 0:04:47.800 --> 0:04:52.200 course of an event. Often offenders will say you know 0:04:52.360 --> 0:04:54.600 you so and so go back to your own country, 0:04:54.680 --> 0:04:58.120 or you don't belong here or whatever. But more commonly 0:04:58.200 --> 0:05:01.440 these days are increasingly common these days, one of the 0:05:01.520 --> 0:05:06.360 things that happens is that individuals will go into chat rooms, 0:05:06.440 --> 0:05:08.679 and so when the police make an arrest, they generally 0:05:08.760 --> 0:05:11.720 seize the computer to see what kinds of searches people 0:05:11.760 --> 0:05:13.760 have been doing. And we see more and more these 0:05:13.880 --> 0:05:17.200 days that offenders go into chat rooms of like minded 0:05:17.240 --> 0:05:21.080 people who feel that, you know, that share their biases, 0:05:21.720 --> 0:05:24.719 and they get egg gone to act them out in 0:05:24.800 --> 0:05:27.360 these chat rooms. So if they see somebody who's been 0:05:27.360 --> 0:05:29.159 in the chat room been saying things like we should 0:05:29.200 --> 0:05:31.359 get rid of all of this group of our community 0:05:31.440 --> 0:05:33.800 or whatever, that is also part of the evidence that 0:05:33.839 --> 0:05:36.320 can be used at trial. Now, in order to charge 0:05:36.320 --> 0:05:39.360 a hate crime, does the state itself have to have 0:05:39.640 --> 0:05:43.280 hate crime legislation in place, or we now have federal 0:05:43.360 --> 0:05:46.000 legislation with the James Bird Matthew Shepherd Act, we have 0:05:46.040 --> 0:05:48.679 federal legislation that could be charged federally. But the vast 0:05:48.680 --> 0:05:52.120 majority of them will be charged at the state level, right, 0:05:52.680 --> 0:05:55.000 and each state has a differention of hate crime laws, 0:05:55.080 --> 0:05:59.919 which makes it complicated. So, for example, lgbt Q for 0:06:00.000 --> 0:06:03.000 oaks are protected in most states, but not all as 0:06:03.000 --> 0:06:06.919 a protected group. Women interestingly enough are not protected in 0:06:07.000 --> 0:06:09.839 every state, but only in some, so we do have 0:06:09.920 --> 0:06:14.719 a bit of a patchwork across the country of laws. 0:06:14.839 --> 0:06:17.800 Some of them are standalone laws that say, you know, 0:06:17.960 --> 0:06:20.560 if you commit this or bias, it's a crime. Others, 0:06:20.640 --> 0:06:24.200 as you suggested before, what they call sentence enhancements, which 0:06:24.360 --> 0:06:27.200 means that if you commit an assault and you get 0:06:27.320 --> 0:06:30.480 a penalty of five to ten years in prison, if 0:06:30.480 --> 0:06:32.680 it's bias motivated, we can add a year or two 0:06:32.720 --> 0:06:34.880 years onto that penalty. What does it take to get 0:06:34.920 --> 0:06:38.880 federal prosecutors to charge a hate crime? They're rare. But 0:06:39.120 --> 0:06:41.320 what we're looking at from January six is a bunch 0:06:41.320 --> 0:06:45.320 of federal prosecutions for the rioters who went at the capital. 0:06:45.920 --> 0:06:49.680 And so generally speaking, it has to be a federal nexus, 0:06:49.720 --> 0:06:51.200 and what I mean by that it has to be 0:06:51.240 --> 0:06:54.479 on federal land or dealing with someone who's involved with 0:06:54.600 --> 0:06:58.839 providing federal services. And we can then go ahead and 0:06:59.680 --> 0:07:03.520 Chary gen on the federal system. Those more common federal 0:07:03.560 --> 0:07:07.440 approaches though, that what will happen is the FBI will 0:07:07.440 --> 0:07:12.680 offer services support services to a local law enforcement agency. 0:07:12.840 --> 0:07:17.120 And that's really helpful and important because these are rare events. 0:07:17.640 --> 0:07:19.680 We you know, we see them a lot in the media, 0:07:19.760 --> 0:07:23.360 but an individual jurisdiction where you might have a police 0:07:23.360 --> 0:07:26.480 department who's dealing with regular, normal crime, they may not 0:07:26.680 --> 0:07:29.160 see more than a handful of them in a year, 0:07:30.040 --> 0:07:32.840 and so to have the expertise of the FBI be 0:07:32.880 --> 0:07:35.360 able to come in and help you, and also the 0:07:35.440 --> 0:07:38.880 resources of the FBI to help with an investigation is 0:07:39.280 --> 0:07:43.040 very beneficial. Even though forty seven states have hate crimes, 0:07:43.280 --> 0:07:46.760 eight six point one per cent of law enforcement agencies 0:07:46.800 --> 0:07:49.440 reported to the FBI that not a single hate crime 0:07:49.480 --> 0:07:53.920 had occurred in their jurisdiction in according to FBI data. 0:07:54.240 --> 0:07:55.920 Is that because they don't want to show that those 0:07:55.960 --> 0:07:59.560 crimes are there, because they just don't recognize them. I 0:07:59.600 --> 0:08:02.760 think it's both of those things, and it's also honest 0:08:02.800 --> 0:08:05.720 reporting in some cases. So I think you're you're very 0:08:05.720 --> 0:08:08.680 insightful what you say. Some police departments go back. I 0:08:08.720 --> 0:08:11.480 started training police on this with the FBI in the 0:08:12.600 --> 0:08:14.720 so and then those days, they were all afraid that 0:08:14.760 --> 0:08:17.080 their community was going to be called racist, and they 0:08:17.120 --> 0:08:19.640 didn't want to report hate crimes because they're afraid of 0:08:19.680 --> 0:08:22.720 what it will do to businesses and property and their community. 0:08:23.160 --> 0:08:25.800 I think we're mostly past that now, but obviously some 0:08:26.040 --> 0:08:29.160 departments still are afraid of that. So there's some of that. 0:08:29.240 --> 0:08:31.720 The other thing is that frequently, as I was saying, 0:08:31.760 --> 0:08:34.960 police don't want to get involved in a case where 0:08:35.000 --> 0:08:38.320 some of those rocks to someone's window, and they would 0:08:38.400 --> 0:08:42.079 rather report as vandalism, and so they just make mistakes. 0:08:42.640 --> 0:08:45.080 And I'll give you an example of one in a moment. 0:08:45.280 --> 0:08:48.000 And then we also have places where there are obviously 0:08:48.040 --> 0:08:51.400 hate crimes. We've had big cities of over a hundred 0:08:51.400 --> 0:08:54.960 thousand population that have reported zero hate crimes over the years. 0:08:55.040 --> 0:08:58.160 And that's just crazy, and that means that there's not 0:08:58.480 --> 0:09:01.280 a commitment to prosecuting hey crimes. What we've done in 0:09:01.600 --> 0:09:03.920 our research and others have looked at it is and 0:09:03.960 --> 0:09:07.319 we talked to police departments across the country about hate crimes, 0:09:07.360 --> 0:09:09.800 and and I'll give you one anecdote. We went to 0:09:09.840 --> 0:09:13.040 a police department in California one time, and we were saying, 0:09:13.480 --> 0:09:16.000 you have reported zero hate crimes. Have you ever had 0:09:16.000 --> 0:09:17.839 one that you thought was a hate crime? And they said, yes, 0:09:17.960 --> 0:09:20.120 you know, I want to tell you about it. We 0:09:20.200 --> 0:09:23.080 thought we had a hate crime. We investigated and it 0:09:23.120 --> 0:09:26.240 turned out it wasn't. And so I said, well, what 0:09:26.320 --> 0:09:29.120 did you learn. Well, a black family moved into an 0:09:29.160 --> 0:09:33.600 all white neighborhood and somebody burned a couple of crosses 0:09:33.640 --> 0:09:37.720 on their lawn. And I was lit incredulous and said, um, 0:09:37.760 --> 0:09:40.559 how could that not be a hate crime? And they said, well, 0:09:41.160 --> 0:09:43.680 we went and we got the crosses and we looked 0:09:43.720 --> 0:09:47.400 at them, and it turned out they were really small crosses. 0:09:47.679 --> 0:09:50.280 They were less than a foot tall. There were four 0:09:50.320 --> 0:09:52.960 of them, but they were all really small. And in 0:09:53.040 --> 0:09:55.360 the police department's mind, you know, it had to be 0:09:55.400 --> 0:09:57.800 a six ft cross wrapped in rags like they've seen 0:09:57.840 --> 0:10:01.400 intelligion and they said, oh, this was just kids. This 0:10:01.440 --> 0:10:04.800 isn't a real hate crime. So sometimes agencies just need 0:10:04.840 --> 0:10:09.360 to understand more about how these things manifest themselves. So 0:10:09.480 --> 0:10:14.600 that brings up Atlanta, where out of eight victims, six 0:10:14.640 --> 0:10:18.560 were Asian, two were white, from two different businesses, and 0:10:18.760 --> 0:10:24.520 the suspect denies being motivated by racial animus. How should 0:10:24.520 --> 0:10:28.120 the police and the prosecutors be proceeding here to get 0:10:28.160 --> 0:10:31.200 to the bottom of it. It's a great question and 0:10:31.320 --> 0:10:35.040 it is a difficult case, but they should be looking at, 0:10:35.440 --> 0:10:40.160 you know, what made this individual target these particular establishments. 0:10:40.480 --> 0:10:43.679 They individual and the media reports is saying that they 0:10:43.720 --> 0:10:46.679 have a sex addiction and they were trying to remove temptation. 0:10:47.559 --> 0:10:50.320 But that's what a lot of hate creme offenders say. 0:10:50.360 --> 0:10:53.080 If these people weren't here, I would be better off. 0:10:53.679 --> 0:10:55.960 What we find is most hate creme offenders tend to 0:10:55.960 --> 0:10:59.360 be people who are not successful. There are people who 0:10:59.400 --> 0:11:02.480 are to work, or their marriage has dissolved, or their 0:11:02.520 --> 0:11:05.959 families having fights with them, and they're blaming somebody else 0:11:06.080 --> 0:11:09.280 for the situation they find themselves in. And it seems 0:11:09.320 --> 0:11:12.840 like this individual fits that model to a t blaming 0:11:12.880 --> 0:11:17.120 the women working in the massage powers for his sex addiction. 0:11:17.720 --> 0:11:20.240 And so I would definitely look at it as a 0:11:20.280 --> 0:11:23.920 potential hate crime. Obviously the murders as well. But I 0:11:23.960 --> 0:11:26.640 mean to send the message to the Asian community. As 0:11:26.720 --> 0:11:29.760 you know, looking across the country right now, members of 0:11:29.800 --> 0:11:33.520 the Asian community are incredibly frightened and they go out 0:11:33.559 --> 0:11:36.800 in groups as opposed to singly. They have patrols to 0:11:36.880 --> 0:11:39.640 support their elderly members of the community, and we need 0:11:39.679 --> 0:11:42.280 to send messages back that we're not going to tolerate 0:11:42.360 --> 0:11:46.880 people attacking members of the Asian or the Asian American community. 0:11:47.080 --> 0:11:49.679 And one way to do that is to charge and 0:11:49.720 --> 0:11:53.040 get convictions in hate crime offenses. So what would they 0:11:53.080 --> 0:11:55.840 have to show in Atlanta? It's not enough that there 0:11:55.880 --> 0:12:00.000 were six Asians out of eight victims of the businesses 0:12:00.080 --> 0:12:03.480 were owned by Asians. If he doesn't actually say it, 0:12:03.640 --> 0:12:07.520 they look through his background to find to his background, 0:12:07.920 --> 0:12:10.959 they look through the computer sits he's been saying it, 0:12:11.040 --> 0:12:13.320 as he'd been going into anti Asian you know, chat 0:12:13.400 --> 0:12:17.120 rooms talking about you know, what's wrong with the Asian community. 0:12:17.400 --> 0:12:21.280 Has he himself sent threats via his computer, emails or 0:12:21.360 --> 0:12:25.079 texts that say, you know, anti Asian sentiments, those kind 0:12:25.120 --> 0:12:27.240 of things would be the kind of evidence that would 0:12:27.240 --> 0:12:30.400 help the police understand that this is part of the motivation. 0:12:30.679 --> 0:12:32.800 It's also true, you know, it is It is the 0:12:32.840 --> 0:12:36.600 case that if we look back before the last administration, 0:12:37.400 --> 0:12:41.880 we saw a spike in anti immigrant hate crimes, and 0:12:42.320 --> 0:12:46.320 that spike was associated with legislation in multiple states. Studies 0:12:46.360 --> 0:12:50.000 in California, as you remember, anti immigrant kind of legislation 0:12:50.040 --> 0:12:52.400 that denied them rights or privileges or try to keep 0:12:52.400 --> 0:12:56.319 immigrants out of community. And we saw that was followed 0:12:56.320 --> 0:12:59.000 by a spike in hate crimes in those states. And 0:12:59.040 --> 0:13:02.000 what happened is when we start to demonize a group 0:13:02.559 --> 0:13:04.600 like that, at that point, it was immigrants. At this point, 0:13:04.760 --> 0:13:07.280 because of the pandemic, it appears to be Asians and 0:13:07.320 --> 0:13:10.719 Asian Americans. You know, that emboldened some people out there 0:13:10.720 --> 0:13:14.319 to say, well, yeah, they don't deserve to be here. Well, yeah, 0:13:14.400 --> 0:13:16.320 if I hurt one of them, no one's going to care. 0:13:16.800 --> 0:13:20.719 And so that's the dynamic. And so that dynamic may 0:13:20.760 --> 0:13:23.400 have been part of this. In other words, this individual 0:13:23.520 --> 0:13:26.560 could have been emboldened to say he was always thinking 0:13:26.559 --> 0:13:29.079 about something to do to them, but now with the 0:13:29.160 --> 0:13:32.640 rhetoric of you know, the Asians associated with the pandemic, 0:13:32.679 --> 0:13:35.840 which is completely wrong, it emboldened him to say, Okay, 0:13:35.840 --> 0:13:38.120 well if I go out and act on this feeling, 0:13:38.160 --> 0:13:41.160 I have, nobody's going to care. What's your take? Do 0:13:41.200 --> 0:13:45.199 you think that the Atlanta shooting should be charged as 0:13:45.200 --> 0:13:48.960 hate crimes? Well, obviously it should be charged as murder first, 0:13:49.440 --> 0:13:52.200 but I also think that it would be very helpful 0:13:52.400 --> 0:13:55.079 if they had the evidence to charge it as a 0:13:55.160 --> 0:13:57.600 hate crime. And so they should be looking for, as 0:13:57.600 --> 0:14:01.439 we talked about before, what kinds of state this individuals 0:14:01.440 --> 0:14:04.960 made on social media, what kinds of chat rooms and 0:14:05.160 --> 0:14:07.920 websites he's visited, to see if there's a case that 0:14:08.040 --> 0:14:12.760 says he has articulated anti Asian bias and that that 0:14:12.920 --> 0:14:16.600 may have contributed to the murders that he committed. Should 0:14:16.600 --> 0:14:21.920 the bar be lowered for bringing hate crimes? Absolutely, we 0:14:21.960 --> 0:14:24.080 don't have many. There's five thousands in a year in 0:14:24.120 --> 0:14:27.600 the United States, so that's not a huge amount compared 0:14:27.640 --> 0:14:30.720 to all of the other crimes that are being reported. 0:14:30.800 --> 0:14:34.520 But to give you an example in Massachusetts, for a 0:14:34.520 --> 0:14:37.280 hate crime to be found against a woman, in otherwise 0:14:37.360 --> 0:14:39.680 the woman was the target of a hate crime, the 0:14:39.760 --> 0:14:43.120 person hated women, which may be the case in obviously 0:14:43.120 --> 0:14:46.600 the Atlantis situation. One has to show that the person 0:14:47.080 --> 0:14:49.680 committed the act against a woman, But then they have 0:14:49.840 --> 0:14:55.000 to show that they prior incidents where they had restraining 0:14:55.080 --> 0:14:57.720 orders by different women in their path. So the bar 0:14:57.920 --> 0:15:00.760 is so high to be able to get a anti 0:15:00.800 --> 0:15:03.680 female hate crime. You know, you have to find this 0:15:03.720 --> 0:15:06.680 case where this person has been a serial offender for 0:15:06.720 --> 0:15:09.760 women and the documentation of it. And so I think 0:15:09.760 --> 0:15:12.440 that yes, like I gave you the case with the crosses, 0:15:12.680 --> 0:15:16.080 we tend to look for the most egregious crimes as 0:15:16.080 --> 0:15:19.800 hate crimes and not some of the more everyday crimes 0:15:19.840 --> 0:15:23.120 that we see. There are also bias motivating. It's important 0:15:23.120 --> 0:15:28.040 to understand that people are incredibly vulnerable hate crime victims, 0:15:28.120 --> 0:15:30.120 and the reason for that is that you carry the 0:15:30.160 --> 0:15:33.240 cause of the victimization with you. And what I mean 0:15:33.280 --> 0:15:36.000 by that is, as a criminologist, I could tell you 0:15:36.040 --> 0:15:38.840 if your house was robbed, how to make it less 0:15:38.880 --> 0:15:41.360 likely that your house would be robbed again, and you 0:15:41.360 --> 0:15:43.280 can put in alarms, we could tell the police, We 0:15:43.280 --> 0:15:45.160 could do a lot of things. But if you're attacked 0:15:45.160 --> 0:15:49.160 because you're black, or somebody perceives you as Jewish or 0:15:49.200 --> 0:15:53.240 your Asian, what do you do to make yourself feel safer? 0:15:53.560 --> 0:15:56.440 Wherever you go? You still carry that characteristic with you. 0:15:57.000 --> 0:15:59.040 And so that's one of the reasons that hate crimes 0:15:59.040 --> 0:16:02.240 are different and they call for different kinds of responses. 0:16:02.680 --> 0:16:05.560 Thanks for being on the Bloomberg Law show Jack. That's 0:16:05.560 --> 0:16:08.920 Professor Jack McDevitt of the School of Criminology and Criminal 0:16:09.000 --> 0:16:12.640 Justice at Northeastern University and director of the Institute for 0:16:12.760 --> 0:16:17.840 Race and Justice. Supreme Court Justice has indicated Tuesday that 0:16:17.880 --> 0:16:21.560 an Appeals Court ruling could harm public safety on American 0:16:21.600 --> 0:16:26.000 Indian reservations, with several justice is raising concerns ranging from 0:16:26.160 --> 0:16:30.040 drunk drivers to serial killers. Joining me is Bloomberg Law 0:16:30.080 --> 0:16:33.480 reporter Jordan Ruben. Jordan tell us about the incident in 0:16:33.480 --> 0:16:38.120 the case, So, Joshua James Cooley was pulled over on 0:16:38.160 --> 0:16:42.320 the side of the road US Roots Well around one 0:16:42.360 --> 0:16:46.760 in the morning one night in February. And this road 0:16:46.840 --> 0:16:50.360 that he was pulled over to the side of runs 0:16:50.400 --> 0:16:54.680 through the Crow Reservation in Montana, and there was a 0:16:54.720 --> 0:16:58.240 Crow Highway officer who went over to check on the 0:16:58.280 --> 0:17:02.160 truck because it's an area that didn't get great phone reception, 0:17:02.280 --> 0:17:05.439 so it wasn't necessarily looking for criminal reasons, just to 0:17:05.520 --> 0:17:08.280 check to see what was going on. And there was 0:17:08.359 --> 0:17:11.920 a lengthy encounter. Then when the officer went to the car, 0:17:12.040 --> 0:17:14.360 Coolie actually had a young child with him as well 0:17:14.400 --> 0:17:19.480 as multiple guns. And it turns out the methamphetamine and 0:17:19.840 --> 0:17:24.760 Coolie wound up getting charged federally because as a non 0:17:24.880 --> 0:17:29.520 native person, the tribe didn't have jurisdiction over him. But 0:17:29.680 --> 0:17:33.680 even though he was being charged in federal court, Coolie 0:17:33.760 --> 0:17:37.640 said that because he was initially detained and searched by 0:17:37.680 --> 0:17:41.840 a tribal officer, that tribal officer didn't have jurisdiction, and 0:17:41.880 --> 0:17:44.920 so he moved to suppress the evidence on those grounds. 0:17:45.600 --> 0:17:49.440 And what did the Ninth Circuit rule? The Ninth Circuit 0:17:50.200 --> 0:17:54.880 approved the granting of the suppression motions. So the Ninth Circuit, 0:17:54.960 --> 0:17:59.680 like the federal district court, ruled in favor of Coolie. 0:18:00.080 --> 0:18:06.560 They said that the tribal officers jurisdiction is limited in 0:18:06.760 --> 0:18:09.760 the following way. They said that an officer can stop 0:18:09.760 --> 0:18:14.119 a person who's traveling on this public right away within 0:18:14.400 --> 0:18:18.280 the reservation to determine whether they're Indian and therefore whose 0:18:18.359 --> 0:18:22.880 jurisdiction they'd fall under, and if they're not, or if 0:18:22.880 --> 0:18:25.600 they're not able to determine this, then the officer can 0:18:25.640 --> 0:18:28.680 only detain the person to then turn them over to 0:18:28.760 --> 0:18:32.480 state or federal authorities if it's a parent or obvious 0:18:32.840 --> 0:18:37.520 that state or federal law is being violated. So in 0:18:37.560 --> 0:18:41.160 this instance, wasn't it apparent when he saw the guns 0:18:41.760 --> 0:18:45.760 that state law is being violated. Well, there's a question 0:18:45.960 --> 0:18:49.840 over at what point those laws would kick in, and 0:18:49.920 --> 0:18:52.760 so Coolly would say that by the time that they 0:18:52.760 --> 0:18:57.120 were deeper into this interaction, that the officer had already 0:18:57.240 --> 0:19:01.320 violated his jurisdiction because at the point where the officer 0:19:01.840 --> 0:19:04.560 determined that he is a non Indian, that should have 0:19:04.920 --> 0:19:08.359 ended the matter. And then the Crow officers should have 0:19:08.640 --> 0:19:11.359 called for back up at that point and not done 0:19:11.640 --> 0:19:14.679 anything further in terms of delving into the car and 0:19:14.760 --> 0:19:19.560 continuing the interaction. And so it's an additional question which 0:19:19.600 --> 0:19:21.879 came up during the argument in the case as to 0:19:21.960 --> 0:19:25.720 what counts as a parent or obvious. But the government 0:19:25.760 --> 0:19:29.359 is saying that this is a basically an additional, unnecessary 0:19:29.400 --> 0:19:34.040 standard that's grafted onto the usual reasonable suspicions standard that 0:19:34.119 --> 0:19:38.880 cops would need in normal roadside interactions. So the Justice 0:19:38.920 --> 0:19:44.520 Department is fighting the Ninth Circuit decision and with the 0:19:44.560 --> 0:19:48.359 backing of the tribes, yes not just the Crow tribe, 0:19:48.400 --> 0:19:52.760 but many other tribes and other similar interest groups as well, 0:19:52.880 --> 0:19:56.000 because it's a ruling that could have wide implication across 0:19:56.000 --> 0:20:00.560 the country. Is this a challenge to tribal sovereignty. I 0:20:00.640 --> 0:20:04.040 think that that's certainly one way to look at it, 0:20:04.080 --> 0:20:08.800 because the whole backdrop of these cases is stemming from 0:20:08.840 --> 0:20:13.520 this really long and pretty sordid history of tribes being 0:20:13.720 --> 0:20:17.080 dispossessed of their land, and they're all of these important 0:20:17.160 --> 0:20:21.360 questions of what jurisdiction they have left. And so it's 0:20:21.400 --> 0:20:24.960 against that backdrop that the federal government is saying. The 0:20:25.000 --> 0:20:28.800 tribes are saying too, that they have at the very 0:20:28.880 --> 0:20:33.240 least this limited authority to maintain some semblance of order 0:20:33.760 --> 0:20:36.240 on their reservations, and so they see it as a 0:20:36.320 --> 0:20:39.240 challenge to that. They see Cooley's argument and the Ninth 0:20:39.320 --> 0:20:43.359 Circuits argument as really challenged them at least being able 0:20:43.400 --> 0:20:48.199 to maintain this order on their reservations. So the geice's 0:20:48.320 --> 0:20:52.600 concerns seemed to run the gamut from drunk drivers to 0:20:52.800 --> 0:20:58.160 serial killers. Tell us about that, right, So this complicated 0:20:58.440 --> 0:21:02.720 setup where you can only do limited things in terms 0:21:02.720 --> 0:21:06.439 of determining someone's status, raises all these questions of what 0:21:06.640 --> 0:21:09.040 exactly an officers allowed to do and what they're supposed 0:21:09.080 --> 0:21:12.240 to do. Justice Thomas, for example, raised the question of 0:21:12.560 --> 0:21:15.000 what if the driver fits the description of a known 0:21:15.000 --> 0:21:18.480 serial killer, but they didn't commit any crimes on the 0:21:18.480 --> 0:21:21.720 reservation and they're non Indian under the Nine Circuits rule, 0:21:22.000 --> 0:21:24.520 would the officer then just have to let that person go? 0:21:25.520 --> 0:21:30.119 Questions like that where it raises the issue of what 0:21:30.320 --> 0:21:33.520 exactly officers are allowed to do and whether the Ninth 0:21:33.560 --> 0:21:37.800 Circuits rule is workable and safe. And a bunch of 0:21:37.800 --> 0:21:42.080 the justices, obviously along with the Justice Department, suggested that 0:21:42.680 --> 0:21:46.320 the status quo in the Ninth Circuit is not good 0:21:46.320 --> 0:21:49.160 and not safe, and that's what's leading them to challenge 0:21:49.240 --> 0:21:52.359 that ruling on appeal. So, Jordan, what was the best 0:21:52.560 --> 0:21:56.520 argument made by the defendants attorney? So in a lot 0:21:56.520 --> 0:21:59.480 of cases, there will be one side that's focusing on 0:22:00.240 --> 0:22:03.320 all of these negative consequences that can come out of 0:22:03.400 --> 0:22:06.800 parade of horribles. I think the the sense was looking 0:22:06.840 --> 0:22:10.960 to not really get into that and just say, look, 0:22:11.480 --> 0:22:14.240 this is more of just a straightforward matter of whether 0:22:14.320 --> 0:22:17.840 the tribe has this jurisdiction, and his arguments was that 0:22:17.880 --> 0:22:22.520 they don't, and this is the legal argument that he made, 0:22:22.520 --> 0:22:25.000 but it also could potentially go to the practical concern. 0:22:25.080 --> 0:22:28.240 He said that a lot of issues can be avoided 0:22:28.320 --> 0:22:34.240 by cross deputizing tribal officers with other jurisdictions than that way, 0:22:34.520 --> 0:22:37.720 they'd be able to act under the authority of these 0:22:37.760 --> 0:22:42.040 other jurisdictions. And the Justice Department in turn had responses 0:22:42.080 --> 0:22:44.320 to that and talking about why the government thinks that 0:22:44.320 --> 0:22:48.200 that's unworkable. But there certainly are arguments to be had 0:22:48.320 --> 0:22:51.160 on the other side. Just after the argument, it's not 0:22:51.240 --> 0:22:54.360 clear to me that they're going to carry the day here. 0:22:54.960 --> 0:22:58.840 And Chief Justice Roberts said that the Supreme Court has 0:22:58.920 --> 0:23:04.160 recognized that tribes retain some inherent authority. Did he explain 0:23:04.200 --> 0:23:08.080 what he meant by inherent authority? Well, that's an important 0:23:08.119 --> 0:23:11.159 point that really sets the whole backdrop here in what 0:23:11.240 --> 0:23:14.280 I mentioned before and talking about how, you know, just 0:23:14.320 --> 0:23:17.280 the fact of a reservation. We're talking about land that 0:23:17.440 --> 0:23:22.000