The guidelines say you get an extra three-level enhancement if the sentencing court "determines beyond a reasonable
doubt that the defendant intentionally
selected any victim or any property as the
object of the offense of conviction because of
the actual or perceived race, color, religion,
national origin, ethnicity, gender, gender
identity, disability, or sexual orientation of
any person." In other words -- and in its classic incarnation -- if you decide to assault someone who's gay because you hate homosexuals, your sentence may be slightly higher. (I understand that there are people who disagree with whether this should be the rule, but this case involves the interpretation of that rule, not its normative wisdom.)
The district court said that in order to be eligible for this enhancement, all that matters is that you chose the victim "because" he had the protected quality, not whether you had distaste for that group. Here, the defendant contacted his (gay) victims over Grindr; that way, they'd be less likely to go to the police after he robbed them (for fear of being outed). So according to the district court, that qualifies for a three-level enhancement; he selected his victims "because" of a protected characteristic (sexual orientation).
The Ninth Circuit unanimously disagrees with that, though there's a split as to precisely why. Judge Tashima says that a but/for "because" (as here) isn't good enough; that, instead, the enhancement requires proof of animus. His basic point (which is a good one): "Patterson used the dating platform Grindr to find people
who would be willing to meet him alone so that he could rob
them. That is, their membership in the protected group was
a proxy for other information about them – their willingness
to agree to meetings where he knew they would be alone.
This is insufficient to impose the hate crime enhancement
without finding beyond a reasonable doubt that Patterson
was motivated by hatred or animus of the victims because of
their membership in the protected group."
So for Judge Tashima, you've got to prove animus, so the Ninth Circuit remands on this issue, since the district court made no such finding.
Judge Christen concurs in the result, but articulates the relevant test in a slightly different way. She says: "By requiring a finding that the
defendant selected the victim “because of” the victim’s
actual or perceived membership in a protected class, the
enhancement bakes in the requirement that the protected
characteristic at issue—e.g., sexual orientation—was the
defendant’s motivation for selecting the victim. In my view,
nothing more is required to establish the requisite animus
needed to impose the hate crime motivation enhancement." So for her, you're not required to find animus; or, to put it differently, "animus" is found whenever a characteristic is your "motivation" for selecting a particular victim.
I wonder, though, if both groups of judges aren't using the word "animus" slightly differently than how it's typically employed.
I agree that most hate crimes are motivated by animus. Some others -- like, perhaps, the one here -- aren't motivated by animus, but rather by ancillary (correlated) characteristics. You might elect to prey on women, or certain minority groups, because they're physically smaller. Or less likely to contact the police. Or stereotypically less likely to resist. Tons of reasons. You don't "hate" that group. They just make easy (or at least "easier") pickings.
Now, maybe, for Judge Christen, that itself constitutes "animus". Though I could see you having no real "animus" at all. Maybe I love women, or believe that, on balance, Asians (or homosexuals, or whatever) are wonderful, and actually prefer their company to anyone else, and think they're better overall people and should rule the world. It's just that, for my particular present purpose -- robbery -- they're a better set of victims. Just like I rob empty houses; it's not that I hate empty houses, or have animus towards them, as compared to owner-occupied houses; it's just that they're easier to rob.
So if you think of "animus" as ill-will -- which is the classic definition -- I'm not really certain that what Judge Christen is getting at is "animus" at all. (Now, maybe we don't care about animus at all -- we just want to protect a certain group from differential victimization. That's fine. It's just that Judge Christen continues to use the word "animus" in her description of the underlying mental state, and that word is typically used to describe a particular mental state that doesn't always exist in her chosen definition.)
I'll go even further. It's true that many crimes are motivated by animus, but many crimes aren't, and it's at least conceivable that at least some crimes are motivated by the exact opposite. For example, imagine that I love Christians -- absolutely love them, and am one myself -- and desperately want them to go to heaven when they die. (Whereas I give not one whit about Muslims, atheists and the like.) But I also believe that a big impediment to going to heaven is having too much wealth, and that it's better to be a Christian that's impoverished, because that way they'll struggle and focus more on God and not be so concerned with material wealth and will therefore be more likely to spend eternity in Paradise. So to ensure that Christians -- whom I prefer -- go to heaven, I steal from them, exclusively. I select victims based entirely on their religion, so their religion is a but/for cause of their victimization.
I think that Judge Tashima would say that there's no animus in this scenario and no enhancement. Whereas Judge Christen would say that there was animus "baked in" because "the protected characteristic at issue [being Christian] was the defendant’s motivation for selecting the victim" and "nothing more is required to establish the requisite animus needed to impose the hate crime motivation enhancement."
That's fine. But loving someone and wanting them to go to heaven is hardly how we usually use the term "animus". It's kind of exactly the opposite, no?
So, yes, animus is often present, and there are lots of settings in which the competing definitions of that requirement advanced by Judges Tashima and Christen overlap.
But it seems like there are at least some settings in which they definitely don't. Including at least some in which I'd be hard-pressed to find "animus" and that we wouldn't typically define as a "hate crime".
