Is a hate crimes bill to protect police needed?

It was a low-key shift on a warm July night until Louisville Metro Police Officer DeAris Hoard got the “shots fired” call.

Hoard, a 25-year-old who has spent three years on the force, had handled minor problems so far: a stolen phone, a noise complaint, a fender-bender. Then an officer saw a man fire a gun from a balcony near East Oak Street.

Hoard headed that way, keeping the possibilities open in his mind: Someone could be luring police to the area, or maybe he was simply testing a new weapon.

“You think worst-case scenario, but you just try to remain grounded,” he said.

Since the ambushes that killed and injured police officers in Dallas and Baton Rouge last month, the worst-case scenario has been on the minds of many, including local leaders.

Several state lawmakers have backed a new bill that would make it a hate crime to target law enforcement officers in Kentucky, although attorneys say the legislation would have little practical effect.

The targeting of police hits home for Hoard, who said he remains focused on staying clear-headed whenever he goes on patrol.

He said he knows he may not come back the same, if at all.

“Complacency is deadly,” he said. “At every moment, you’re observing everything.”

Support for police officers

More than 35 states – including Kentucky – have additional penalties for harming police officers on the books.

But state Rep. Kevin Bratcher, R-Louisville, believes hate crime protections still would be beneficial. His legislation — which could be approved next year — has eight co-sponsors, including state Rep. Dennis Horlander, D-Louisville, who said in an emailed statement that the bill reaffirms lawmakers’ commitment to focusing on the dangers routinely faced by first responders.

Bratcher readily admits that his measure is more about sending a message to police officers and other first responders, such as fire and emergency medical workers, than filling a hole in state law.

“This will reinforce that we do back these brave men and women, and you better not mess with them,” he said.

The bill mirrors so-called “Blue Lives Matter” legislation that was passed this year in Louisiana, making it the first state to take a victim’s occupation into account when weighing whether the crime was an act of hate.

In Indiana, lawmakers have introduced two related proposals. State Sen. Jim Merritt, an Indianapolis Republican, is calling for changing the state’s criminal code to enhance certain penalties when an officer is the target of violence, even if that officer is not on the clock. State Rep. Wendy McNamara, a Mount Vernon Republican, has said she plans to introduce legislation that would make it a felony to threaten a specific law enforcement agency or other emergency personnel.

In an interview with IndyStar, she cited a recent threat made on social media against the Evansville Police Department by someone believed to be affiliated with a local gang. At present, no law applies in that case.

“Each day, our law enforcement officers and even our first responders receive credible threats,” McNamara said. “Our laws haven’t necessarily kept up with the times. The instant threats on social media — you can’t find those anywhere in statutes.”

In Kentucky, Bratcher said he feels there was a growing lack of respect for law enforcement before the recent police ambushes in Louisiana and Texas. And he has tried to downplay tensions between police and protesters, saying his legislation shouldn’t be referred to as “Blue Lives Matter.”

He also didn’t blame protesters when asked about the origins of any lack of respect for law enforcement. Instead, he laid it at the feet of a 24-hour news cycle and widespread use of cellphone videos that bring police misconduct to the forefront.

Bratcher emphasized that his bill shouldn’t be taken as an effort to shield officers who abuse their authority.

“I’ll stand right with you if a police officer crosses over the line,” he said. “I certainly don’t want to feed the fire of ‘Black Lives Matter’ versus ‘All Lives Matter.’ ”

Other lawmakers, however, have pointed a finger directly at Black Lives Matter – a phrase popularized after the fatal 2012 shooting of an unarmed black teenager, Trayvon Martin, by a neighborhood watch volunteer in Sanford, Fla. – as an engine of anti-police violence.

For instance, in the immediate aftermath of the July 17 slaying of three Baton Rogue, La., police officers, Kentucky Rep. Ken Upchurch compared the movement to a terrorist group.

“Many parallels can be concluded between ISIS and (Black Lives Matter),” Upchurch, R-Monticello, said in a July 17 Twitter post.

He did not respond to a request for comment.

Violence vs. police up?

Longtime law enforcement Officer Rick McCubbin – who was Bardstown’s police chief when Officer Jason Ellis was slain in 2013 while clearing tree branches from the road – said that being a police officer has taken a more violent turn in recent years.

“It’s more hate-related,” said McCubbin, a former Louisville Fraternal Order of Police president who served on the city’s force for 15 years. “Whereas in the past it was more part of the job – local traffic stops or breaking up a domestic – today, it’s killing police because they’re police.”

Ellis’ slaying is still unsolved.

But Justin Nix, an assistant professor at the University of Louisville, said Bratcher’s “feel-good” bill could feed into the belief that more officers are being killed than in the past.

“In recent memory, it feels like assaults against the police are up,” Nix said. But his research, completed before the attacks in Dallas and Baton Rouge, showed there hadn’t been a significant increase in fatal assaults on officers over the past five years. It’s too soon to tell whether 2016 will represent a departure from prior years, he said.

In Louisville, Metro Police records obtained by the CJ show that in the past five years, only Officer Kyle Carroll has been shot in the line of duty. He survived after he was shot in the chest in June while pursuing a man in the Russell neighborhood.

In Kentucky, four law enforcement officers were slain while acting in an official capacity between 2010 and 2015, according to the Federal Bureau of Investigation. No officers in Kentucky have been killed in 2016, according to the FBI data.

Meanwhile, Louisville police data from 2010 to 2015 show that assaults against the department’s officers spiked at roughly 1,200 cases four years ago. Last year, there were 890.

In the six-year time span, about 56 percent of the assaults were classified as intimidation, meaning the officer was put in reasonable fear of bodily harm through “the use of threatening words” without the display of a weapon or physical attack.

Bill called ‘nice gesture’

Louisville attorney Brian Butler, a former state and federal prosecutor, said he believes adding police to Kentucky’s hate crimes statute would be “meaningless,” noting that judges, juries and prosecutors already take motive into account when they consider a case.

“It’s a nice gesture, but it has no real impact,” he said.

People who commit crimes against law enforcement already face stricter penalties under state law, Butler pointed out. If someone punches another patron at a bar, it’s a misdemeanor, he said. If that person punches an officer, it’s a felony.

And under state law, if someone kills an officer, that can trigger the death penalty.

Mark Miller, a Louisville attorney and former Kentucky State Police commissioner, also said the current hate crimes statute – which lists race, color, religion, sexual orientation and national origin as protected classes – isn’t mandatory. It allows Kentucky judges and parole boards to use court findings to deny parole, shock probation or conditional discharge to a defendant, but it doesn’t require them to do so.

The hate crimes law does not give judges broad authority to add time to someone’s sentence, either.

McCubbin, who said rank-and-file law enforcement officers will likely support a Blue Lives Matter bill, said he doubts that prosecutors can prove a killer’s motivation.

“It sends a message, but I think there’s going to be a little bit of burden of proof,” McCubbin said. “Was I killed because I was chasing a holdup suspect or was I killed just because I’m a cop?”

When hate crimes legislation was first introduced in the late 1990s, many GOP state lawmakers were also skeptics.

In March 1998, then-state Sen. David Williams of Burkesville said proving a crime was motivated by group hatreds “would be a very subjective sort of testimony.” He successfully gutted automatic penalties that would have doubled prison sentences in hate crime cases.

Other Republican lawmakers, such as then-state Sen. Gex Williams of Verona, said the law “should be color-blind, age-blind, ethnicity-blind.”

“If you do the crime, you do the time. It doesn’t really matter who you are,” he said.

Bratcher, who has been in the state legislature since 1997, said he “wasn’t a great fan” of hate crimes laws initially either. “But you know what, it’s been around and it’s not been abused,” he said. “It has clear definitions of when it can be used … and so I am a fan of it now.”

Worries about the bill

The American Civil Liberties Union of Kentucky has raised concerns that Bratcher’s bill could dilute the intent of the state’s hate crimes law by adding first responders as a protected class.

That statute is meant to protect immutable characteristics such as a person’s race or religion, not professions, said Kate Miller, the ACLU of Kentucky’s advocacy director.

Damon Preston, deputy public advocate for the state’s public defender system, agreed. The hate crimes law was “clearly intended for racial, ethnic and societal minorities,” he said.

Adding first responders would change the nature of the law, Preston said. He suggested a separate statute that includes stiffer consequences for crimes that target police but doesn’t use the term “hate crime.”

“If you write a different statute, call it what it is … (the) Protection of Law Enforcement Act,” he said.

Louisville student Jalen Posey, who has organized and participated in several demonstrations against police abuse, said it’s unfair to compare a person’s occupation to being black or Jewish or a woman.

“As a police officer, you signed up for your job,” said Posey, president of Central High School’s black student union. “I did not sign up to be a young black man in this systemically corrupt country. There’s no such thing as a blue life.”

Amber Duke, communications director for the ACLU of Kentucky, noted that the current law lists various offenses that could be deemed a hate crime, including property-related crimes. She suggested that Bratcher’s bill could be used to more seriously punish protesters who, for example, damage a police car or trespass during a demonstration against police brutality.

“We want to be sure that the tools are not being used to abuse the rights of citizens,” she said.

Posey also said there is a worry such a law could be used to target criticism of officers involved in controversial shootings.

“If they’re basing these charges off of intimidation, are they going to feel intimidated if I speak against what they say?” he asked.

But Miller, the former KSP commissioner, said he thinks officers would be reluctant to charge someone with a crime for expressing their views.

And the act of assaulting an officer alone wouldn’t be enough to deem that offense a hate crime, Miller said. The court would need more evidence, such as remarks a defendant made during the attack or previous posts that advocated violence against officers.

Being part of the Black Lives Matter movement would be unlikely to become a factor in determining whether someone committed a hate crime, he added.

Statement on the streets

As Hoard, the local police officer, drove through Old Louisville during his shift last month, he said he supports the new hate crimes bill.

“It’s necessary to make a statement,” explained Hoard, who is black. The Fourth Division that Hoard patrols – which includes the Shelby Park, Smoketown and Iroquois neighborhoods – is consistently one of the most dangerous in terms of the number of aggravated assaults on officers, according to Louisville police data.

The area had the highest number of overall assaults on law enforcement in five of the past six years and represents about 28 percent of all assaults on Louisville police in that same period. However, roughly 63 percent of the Fourth Division incidents were reported as intimidation.

Hoard admitted that he is afraid sometimes when he’s on patrol. “But I don’t have the privilege of going to my safe place,” he said. “I have to act now.”

When he drove to the “shots fired” call that night, uncertain of who he might encounter there and what their intentions would be, he kept his focus on the situation at hand. Mistakes happen when officers mischannel stress.

Hoard parked his cruiser on East Oak Street, crossed beneath yellow streetlights and stopped by a building close to the darkened balcony, gun drawn. A few other officers, weapons in hand, took different vantage points.

Vertical slats of wood enclosed the balcony, making it impossible to tell if the man with the gun had fled or was still there, hiding.

One officer shone a flashlight on nearby porches and rooftops. All empty.

Hoard left a half-hour after the report came in to handle another issue, but his comrades stayed to monitor the area. They hadn’t found the man they were looking for yet.

A call like that is fairly routine, Hoard said, and it’s a scenario that officers are trained to handle.

“I think fear motivates you, and it gives you the will to survive,” he said. “You always want to have a plan for every situation. Every person you come in contact with may potentially be a threat.”

Reporter Morgan Watkins can be reached at (502) 875-5136 or [email protected]. Reporter Phillip M. Bailey can be reached at (502) 582-4475 or [email protected]. The Indianapolis Star contributed to this report.