The New York Police Department and Brooklyn's district attorne are investigating an early October 2017 episode in which several businesses in Brooklyn and Manhattan were targeted with anti-semitic, homophobic and racist leaflets.
A spokesperson for the NYPD told us that nine businesses in total were targeted, including a kosher bakery in Borough Park, Brooklyn, three law offices, an international finance company, a Starbucks, a kosher butcher's, and a jewelry store. Each business was sent a copy of the same one-page flier, which featured a large swastika on a red background, and the following message:
MAKE AMERICA GREAT AGAIN!!!
NEGROES AND FAGGOTS MUST BURN IN HELL
CHRISTIAN IDENTITY IS BACK.
"Juden raus" means "Jews out" in German, but it also recalls a Nazi-era board game of the same name, in which players rolled dice, hunted and arrested and collected "Jews" on the board.
The NYPD told us they have a task force leading the investigation, which would examine the possibility of bringing harassment charges against those behind the letters.
One of the missives came to light when Abraham Weiss, the owner of Weiss Kosher Bakery in Borough Park, Brooklyn, called New York State Assemblyman Dov Hikind after receiving one of the leaflets. Hikind then informed police in the 66th precinct, and reported the incident to Brooklyn District Attorney Eric Gonzalez:
We are aware of this and similar letters that have been sent. We are investigating and will not stand for these acts. https://t.co/DoO2bDQiWQ
— Eric Gonzalez (@BrooklynDA) October 3, 2017
The incidents are part of an increasing national trend of hate crimes, according to Frank Pezzella, an Associate Professor of Criminal Justice at John Jay College of Criminal Justice in New York City and a hate crime response expert. Federal Bureau of Investigation figures have showed year-by-year increases in reported hate crimes in 2015, and a study conducted for the Huffington Post by Brian Levin from the University of California at San Bernardino's Center for the Study of Hate and Extremism indicated significant increases in bias-motivated crimes in 2016 and 2017.
However, bringing a successful prosecution of a hate crime is notoriously difficult, according to Frank Pezzella:
You have almost a double mens rea requirement: first, you have to prove that a crime happened and then you have to prove that it was bias-motivated. Sometimes that threshold is so high that [prosecutors] will often elect to just go for the ordinary crime charge.
Bias motivation functions as an enhancement to an existing charge, and because it is considered to be an aggravating factor, the penalties are typically higher. However, if a prosecutor fails to convince a jury that there was a bias motivation for the crime in question, the entire case could be lost. Rather than take that risk, Pezzella says, prosecutors often try suspects for their crimes without the additional hate crime element:
That almost has to be a slam dunk. It has to be very, very clear and very, very apparent.
The FBI has fourteen indicators that it uses in order to determine whether a hate crime has taken place. These include: the use of racial epithets, drawing symbols (like swastikas) that indicate bias, the involvement of certain objects like hooded robes or burning crosses, whether or not an incident took place on a significant date (such as Hitler's birthday or Martin Luther King Day), and whether or not there were multiple victims in the same locality who all shared (or were assumed to share) the same racial, religious, ethnic or gender identity or sexual orientation.
It's the combined presence of more than one indicator that can be crucial in proving bias motivation, Pezzella says. One element in isolation might not be enough, but in a certain context, the bias is made clear. He pointed to Virginia v. Black, a First Amendment Supreme Court case in which the justices ruled — in brief — that cross-burning was not protected speech where there was an intent to intimidate someone. The court, according to Pezzella, effectively decided "You can burn a cross anywhere you want, but the minute you burn a cross with the intention of intimidating somebody, that crosses the line..."
When you send a swastika to a Jewish person, that clearly has a message of intimidation or a message of imminent threat. When you stick a burning cross on a black person's lawn, that clearly has the same message.