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Haters to the Left: Prosecutors Treat Graffiti as Hate Crime 

Wednesday, Sep 30 2015
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On Thursday, Sept. 10, Supervisor Julie Christensen stood in front of the iconic Gateway Arch in San Francisco's Chinatown to denounce hate speech.

Christensen condemned the rash of graffiti reading "NO MORE CHINESE" that had appeared on the side of buildings and fences the previous weekend. The rally and press conference came a day after Christensen had upstaged San Francisco police Chief Greg Suhr's press conference by breaking the news (on her campaign Facebook page) that police had arrested a suspect in the case (and preceded, by a few hours, a competing rally-and-talk held by Supervisor David Campos).

The Dragon's Gate on Grant Avenue is where hundreds of thousands of tourists enter North America's largest Chinatown each year. It's an obvious location for the District 3 supervisor to speak out against anti-Chinese rhetoric and burnish her credentials with her Chinese-American constituents. It's also five miles and half a city away from where the bright orange graffiti was sprayed in the Bayview and Portola neighborhoods.

Christensen is competing for the Chinatown vote against fellow Telegraph Hill resident and former Supervisor Aaron Peskin — in whose corner you can count one-time kingmaker Rose Pak — so her political motive is perhaps only as transparent as it is understandable. ("Supervisor Christensen is involved because our district encompasses a very large concentration of Chinese Americans," a Christensen aide said when asked why the supe was getting involved in someone else's neighborhood issue.)

The hoopla over the graffiti barely lasted one news cycle. Soon after the graffiti was discovered, residents painted over portions of the slogans to make them read "KNOW MORE CHINESE"; the Department of Public Works soon erased both the original message and the remixes; and less than 72 hours later, a suspect was in custody. But the intense focus on the relatively harmless acts of a single man has produced some very heated rhetoric about what does and does not belong in San Francisco.

A press release from the San Francisco Democratic Party compared the graffiti to the "Yellow Peril" of the 1870s that led to the Chinese Exclusion Act. Supervisor Malia Cohen connected the incident to recent acts of vandalism against an LGBT-themed mural in the Mission and a predominantly African American church in the Bayview (both crimes were investigated by SFPD's hate crimes unit), adding, "Hate and prejudice have absolutely no place in our communities and we will not tolerate this behavior."

The suspect in the case, 62-year-old John Schenone, was charged by the District Attorney's office with 13 crimes, including felony vandalism with a felony hate crime enhancement. His bail was set at $155,000 — far above the $25,000 bail usually required for felony vandalism.

Yali Corea-Levy, Schenone's public defender, describes the situation with a touch of disbelief. "We're exposing a man to somewhere around six years of jail time," he says, "for spray painting."

Schenone isn't the only San Franciscan to face hate crime charges this summer over graffiti. In another, less high-profile case, Russell Samuels, 46, was arrested after he was caught by a security camera scrawling "Fuck You Gooks!" on the Duboce Avenue garage door of a Chinese-American tech entrepreneur. Samuels is being charged with misdemeanor vandalism and a misdemeanor hate crime charge (carrying a sentence of up to one year in prison).

SF Weekly requested data from District Attorney George Gascón's office on its hate crime prosecutions in recent years — how many charges have been brought, what the underlying crime was, how many convictions have been won — but the DA's office did not produce the information by our print deadline (a spokesman said the information might be available in "a few weeks"). Gascón's office did reveal that it reviewed 66 cases relating to hate crimes since 2013 and filed charges in 41 of them.

The information we do have on Gascón's record prosecuting hate crimes suggests that San Francisco juries don't jump to penalize defendants for perceived motives. In 2010, the beating of two Mexican nationals by three white men outside a Tenderloin dive bar supposedly unmasked what Gascón said was a ring of TL-based white supremacist groups, with ties to national "hate groups." However, a jury looked at the evidence (in this case, one of the suspects had pictures of Hitler on his laptop) and found the defendants not guilty of hate crimes.

In 2010, a jury also acquitted the notorious Katherine Dunbar (a.k.a. "KKKatie") of felony hate crimes charges for the offensive, possibly Ku Klux Klan-related graffiti she sprayed around the city.

According to a 2011 report in SF Weekly, between 2009 and 2011, the DA's office brought four felony hate crime cases to trial and received convictions in none of them. The most recent successful hate crime prosecution in San Francisco we could find via news searches was the 2008 felony conviction of an apparent Holocaust denier who yanked Nobel laureate and Holocaust survivor Elie Wiesel off an elevator in the Argent Hotel.

Corea-Levy believes Schenone is being overcharged for political reasons. "The DA is an elected official. It's easy to see this is going to be popular," he says. "Think about the degree of press this gets versus a young man getting killed in the Bayview."

That's troubling, because Corea-Leavy sees the hate crime allegations in this case as challenging his client's First Amendment rights. "The real test of our belief in the U.S. Constitution is our defense of unpopular, minority beliefs." His client's statements "might be offensive and hurtful," he says, "but that doesn't make them criminal. They're not inciting anyone to attack Chinese people. It's hard to see how these statements are threatening any individuals."

Gascón press secretary Alex Bastian disagrees. "Anytime anyone uses force, uses threats, or destroys property in order to interfere with another's exercise of civil rights, it is a crime that hits the very fabric of who we are as a city, as a state, and as a country," he says. "As far as 'free-speech' is concerned, the First Amendment is always a sacred principle that our office holds dear, however, as you know, not only did the examples you mention above include defacing property, they also infringed on other residents' exercise of civil rights."

But if Schenone or Samuels had merely shouted their messages on the 30-Stockton bus or in a City Hall meeting instead of writing them on a wall, they'd be in the clear.

According to California state law, an individual has a right to engage in hate speech as long as they're not committing a crime at the same time.

Perhaps surprisingly, the American Civil Liberties Union — which is well known for its defense of free speech, even when that speech involves neo-Nazis or the Westboro Baptist Church — agrees that hate crime enhancements do not infringe on freedom of speech.

"It's not a crime to have hateful views, but it is a crime to do vandalism," says Alan Schlosser, senior counsel for the ACLU of Northern California. "If you're committing a crime because of your hateful views, we feel it is appropriate to have an enhanced penalty."

But what is the value of increased penalties? "It's a big lingering question in the criminal justice system whether adding on additional years to a person's sentence [through hate crime enhancements] does anything to deter hate crimes," says Saira Hussain, a staff attorney with Asian Law Caucus, a civil rights organization serving Asian Americans in San Francisco.

"Is it merely to punish? Do hate crime enhancements do anything to rehabilitate people?" Hussain asks. "If we want to address the problem, instead of adding to mass incarceration, we should look at a systemic level and ask why people are targeting certain populations."

To Hussain, hate crimes occur in a specific context — one that includes the anti-Mexican immigrant demagoguery of Donald Trump and Islamophobia that has gripped the country since the attacks of September 11, 2001. "These acts don't exist in a vacuum," she says. "This behavior is learned."

Of course, considering the context of hate crimes — and the society that produces them — makes it harder to fully endorse hate crime laws. Under our current system, we are asked to assess the total damage of a hate crime as being more than the sum of its material parts. We want the individual who writes "NO MORE TECHIES" on a wall to pay for the cost of removing the paint. We want the individual who writes "NO MORE CHINESE" on a wall to pay for the cost of removing the paint — plus the cost of centuries of discrimination against immigrants and people of color, most of which he wasn't even alive to witness, let alone commit.

Or we think that's what we want. The logic is obscure.

Perhaps we want to deter hateful thinking by making it clear that you can express hateful views while running for president but not while tagging a wall. Perhaps we believe that the extra year in prison a hate criminal serves will be the year he really focuses on confronting his internal biases. Perhaps we want to feel like we're doing something.

Perhaps we just want to win reelection.

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About The Author

Julia Carrie Wong

Bio:
Julia Carrie Wong's work has appeared in numerous local and national titles including 48hills, Salon, In These Times, The Nation, and The New Yorker.

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