A bill has been introduced in the Kentucky House of Representatives to add law enforcement and other safety workers as a category in the state’s hate crimes statute. Given that 75 police officers were killed nationally by intentional gunfire or vehicular assault in 2016 it’s a little strange for many people to hear someone say that this bill should not become law (https://www.odmp.org/search/year/2016).

So if not, then why not?

First, the constitutional argument. Hate crimes laws were designed as a legal response to the violent history of white supremacist violence perpetrated primarily against Black folk with a nod toward the bloody history of anti-Semitism. Yet, as these laws were crafted and pushed forward it became clear that the equal protection clause of the 14th Amendment made any provision for the protection of some portion of a class and not others legally untenable. Thus existing hate crimes laws are written so that they apply to entire categories of people, not just historically oppressed, disadvantaged, or minority fractions of such categories.

In other words, white people are as protected from “anti-white” crimes as Black folk are protected from anti-Black crimes. Similarly, with other included categories: Christians are as protected as Muslims, Jews and other religious minorities; straight folks are as protected as LGBTQ folks. And so on.

Hate crimes laws are in this sense fundamentally different from historic redress laws, e.g. affirmative action policies and minority set-asides, that by definition must specify some class of persons to privilege in order to remedy historic–and persisting–discrimination. Hate crimes, by contrast, apply as add-ons to criminal law, usually affording the possibility of enhanced penalties to classes of crimes that can be proven to be motivated by bias. Thus under the equal protection clause and basic principles of the universality of the law, hate crimes can be charged against anyone committing a “racially motivated” crime (for example), regardless of the respective racial categories of the perpetrator and the victim.

What this means, with respect to Kentucky’s proposed law (HB 14/CI [BR 75]) which seeks to amend the state’s hate crimes statute (KRS 532.031)…

…to include offenses committed against an individual because of the individual’s actual or perceived employment as a city, county, state, or federal peace officer, member of an organized fire department, emergency medical services personnel…

…is that these particular category fractions– fractions of the general category “occupations”–are to be afforded a special categorical status not afforded to other occupations. And this exactly violates the same constitutional principle that led to the drafting of hate crimes laws to protect against violations motivated by any specific racial (religious, national original, sexual orientation) bias, rather than naming particular classes of victims or perpetrators.

Note that the construction of the equal protection provision in hate crimes statutes is particular and does not necessarily apply to other sorts of laws that could protect specific occupational categories for some reason other than bias. In fact, Kentucky, like a plurality of states, already has enhanced penalties for crimes of various sorts when committed against law enforcement and other categories of public employees. Such provisions afford a higher level of protection than hate crimes laws in that they do not require establishing a bias motivation (which in practice can be extraordinarily difficult). Thus if you assault a police officer, particularly one acting in the line of duty, the crime can automatically be treated as different than assaulting another citizen, regardless of why you assaulted them.

Secondly, the inclusion of law enforcement personnel in hate crimes statutes is not only unlikely to pass constitutional muster but may undermine existing hate crimes laws. How? You have to start from the underlying premise that such laws were passed specifically to acknowledge the bloody history of lynching, particularly the lynching of Black folk in the aftermath of the Civil War and continuing through the Jim Crow era. Such attacks, even in demographically slight numbers, terrorize entire groups. Hate crimes laws were meant to address the vulnerability of a definable population to bias-motivated crimes, acknowledging that such attacks tend to discourage people from exercising their civil rights and otherwise participating fully in civil society. Indeed, such has often been the very purpose of such crimes!

Police officers, far from being a politically vulnerable group, regularly and legally go armed. They have close working relationships with the prosecutors who are the arbiters of who is and is not charged with a crime. Police–of any group of people–exercise the closest thing to de facto sovereignty with respect to the law. An attack on a police officer is vanishingly unlikely to prevent other officers from exercising their rights to assemble, vote, serve on a jury and so on. If anything, such attacks lead to an increasingly embattled culture.

Further, while there is an increasing us/them divide between police and civilians–similar in many ways to the civilian/military divide–law enforcement are widely lauded as “heroes” in popular culture and by the highest political authorities. Hate crimes laws have as their moral basis an attempt–little utilized and of debatable efficacy–to deter crimes that would in another context be called terrorism. By including a privileged, state-linked, legally-armed group within the same legal mechanism it disrupts that moral logic. At the same time, the extremely weak constitutional case for including police in hate crimes laws threatens the legal basis of such laws entirely.

Third, since violence against law enforcement is already included in non-motive based enhanced sentencing in Kentucky, to include them in hate crimes provisions–a weaker protection by any measure since it requires proof of motivation which is extremely difficult to obtain–is not only redundant, it is redundant in a way that smacks of the worst kind of politicking. At best, support for such legislation demonstrates a misguided desire to be positioned on the side of heroes, standing with the “thin blue line” that supposedly protects us from a war of all against all. At worst, and the timing of the latest spate of such laws is telling, there is a desire to be seen as standing against the Movement for Black Lives. The pervasive racist interpretation of that movement that suggests it involves agitation against anyone who is not Black.

In practical terms, “Blue Lives Matter” statutes do nothing to protect police officers–and I don’t mean that as a rhetorical exaggeration. Sponsoring or signing on to such measures is a kind of “law and order” statement for state legislators. Meanwhile, pensions and healthcare benefits for police and other public employees are being cut, and many jobs in corrections are privatized and pushed in the direction of minimum wage casual labor. The kind of in-depth training in community relations, conflict resolution, and cultural understanding that would actually make policing work less dangerous is neglected, denigrated, and axed for budgetary and ideological reasons.

Effectiveness, apparently, is a low priority.

I have spoken to enough rank-and-file police officers to know that they do not see or feel their position to be privileged. They often feel like they are under siege by politicians, in the media, and by civilians in general who simply do not and cannot understand the difficulties of the job. As a military veteran who studies veterans, the attitude is familiar and to a certain extent justified. But as with military veterans, the appropriate response to tensions with the civilian world is not to exacerbate them and attempt to buy off our “protectors” (whether in blue or green) with hero narratives and celebration, but to train them appropriately and foster a culture of responsibility–which to be fair does exist in many units, depending on the values promoted by the leadership. We must also provide them with fair compensation, and most of all define a mission which brutalizes neither the officers nor the communities they are supposed to serve.

Please take this message away: Blues Lives Matter laws are politically motivated grandstanding of dubious constitutionality. They are a very thinly veiled attack on the Movement For Black Lives that is grounded in a willful misrepresentation of that movement that can only be described as both racist and perverse. I urge you to call or write your state representative if you live in Kentucky and tell them to go on the record as being opposed to this retrograde bill. 

Find your legislator here: http://www.lrc.ky.gov/Find%20Your%20Legislator/Find%20Your%20Legislator.html