Tempers can flare during an arrest, leading some people to say ill-advised and even cruel things.
But, where does protected speech end and criminal speech begin?
That line is being blurred by police in Pennsylvania who are using the state’s hate crime statute called ethnic intimidation—defined as “malicious intention toward the race, color, religion or national origin of another individual or group of individuals”—against people who direct vitriol at them.
On Sept. 23, 2016, Robbie Sanderson, a 52-year-old Black man from North Carolina, was arrested for retail theft in Crafton, a small town near Pittsburgh.
During the arrest, Sanderson called police “Nazis,” “skinheads” and “Gestapo,” according to an affidavit of probable cause filed by the Crafton Borough police.
For that, he was charged with a hate crime.
“This is completely ridiculous,” said Mary Catherine Roper, deputy legal director for the ACLU of Pennsylvania. “This is not what the hate crime statute was for. This is criminalizing pure speech and that violates the First Amendment.”
It all began that late September day when the police responded to a CVS Pharmacy for a possible active burglary, according to the police affidavit.
A passing motorist called police to say that she saw an older black man pulling on the rear doors of the store.
The store was open at the time, but when police arrived they found no one at the rear so they went inside.
Police then spoke with a CVS employee who identified Sanderson as the man pulling on the store’s doors; the employee told the police that the man was at the cashier station.
The police approached Sanderson by the cash registers, detained him, and searched his backpack, according to the affidavit. Inside the backpack, police allegedly found a little more than $100 worth of stolen merchandise, including beef jerky and Dr. Scholl’s shoe inserts.
After Sanderson called the police derogatory names, the affidavit states, he also told them “that’s why motherfuckers are killing y’all out here” and “all you cops just shoot people for no reason.”
And police said that Sanderson told one officer, Brian Tully, that he was going to find his wife and have sex with her.
Tully then charged Sanderson with summary retail theft for allegedly stealing the items from the CVS, as well as misdemeanor terroristic threats, institutional vandalism and resisting arrest for incidents that occurred during the arrest, according to court records.
Sanderson was also charged with “felony ethnic intimidation”—Pennsylvania’s hate crime statute—for making angry comments to the police.
Roper of the ACLU told The Appeal that ethnic intimidation is supposed to be used only when an underlying crime like making terroristic threats or simple assault is motivated by a bias or hatred of race, ethnicity, or religion. It is not supposed to be used merely because a defendant made racially driven remarks around the time of an incident if the underlying offense was not motivated by such bias.
“Where the underlying crime is shoplifting or the underlying crime is resisting arrest,” Roper explained, “none of that is motivated by ethnic bias.”
The grading of an offense—whether it is a felony or a misdemeanor—is based on the grading of the underlying offense.
So, by definition, ethnic intimidation increases the penalty for a crime by making the grading one step higher than the underlying alleged bias-motivated offense.
In Sanderson’s case, police claimed the terroristic threats charge was bias-motivated. That offense is graded as a first-degree misdemeanor, meaning the ethnic intimidation charge Sanderson faced was then upgraded to a third-degree felony.
Sanderson is not the only Pennsylvania resident to face ethnic intimidation charges for what appears to be simply making comments to the police that could be considered racist. The Appeal identified at least three other such cases in the state in 2016.
In January that year, Sannetta Amoroso, a 43-year-old Black woman from Pittsburgh, was charged with multiple counts of first-degree felony ethnic intimidation by McKees Rocks police Officer Brandy Harcha. According to police, Amoroso became angry while trying to report a crime and said “I’m going to kill all you white bitches” and “death to all you white bitches.”
Then in June, Pennsylvania State Police Trooper Robert Wareham charged Steven Ray Oller, 47, of Chambersburg, with misdemeanor ethnic intimidation for threatening officers and using a racial slur directed at a Latinx trooper during an arrest for suspected DUI.
And in August, Trooper James Welsh of the state police charged Seneca Anthony Payne, a 39-year-old Bucks County man, with misdemeanor ethnic intimidation. Payne allegedly called an officer a “Gandhi motherfucker” during a welfare check at Payne’s home.
Despite filing such charges, in 2016 these departments reported to the Pennsylvania State Police Uniform Crime Reporting System that no hate crimes occurred in their jurisdictions.
“What you have is police officers essentially punishing people for disrespect to police officers by adding on criminal charges,” Roper explained. “And that’s just inappropriate. The things they are saying are deeply offensive, but they are not criminal.”
Perhaps unsurprisingly, the ethnic intimidation charge was later dropped in all four cases, including Sanderson’s, according to court records.
Sanderson pleaded guilty to retail theft and resisting arrest and was sentenced to one year probation and ordered to pay $915 in fines and fees.
Only 12 of the 65 total cases involving ethnic intimidation in Pennsylvania in 2016 resulted in a conviction, according to The Appeal’s analysis.
Three cases were still awaiting disposition at the time of publication.