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HomeMy WebLinkAboutStaff Report 14079 City of Palo Alto (ID # 14079) City Council Staff Report Meeting Date: 5/9/2022 Report Type: Action Items City of Palo Alto Page 1 Title: Report on Palo Alto's Response to Hate Crimes and Hate Incidents, and Discussion of the Policy and Services Committee Recommendation that the City Council Consider the Idea of Developing a Misdemeanor Ordinance to Deter Hateful Speech and Support the Human Relations Commission (HRC) to Bring the FBI and Community Resources to Palo Alto to do Community Education on Hate Crimes From: City Manager Lead Department: City Manager Recommendation Staff recommends that the City Council receive a report on City responses to hate crimes and hate incidents, including the idea of developing a misdemeanor ordinance to deter hateful speech, which was recommended by the Policy and Services Committee in September 2021, and Support the Human Relations Commission (HRC) to bring the Federal Bureau of Investigations (FBI) and community resources to Palo Alto to further community education on hate crimes (per the HRC March 10 Motion). Background The City has been focused on topics of inclusion and addressing hate crimes and incidents as part of the race and equity efforts over the past two years. A recent blog post of race and equity efforts (https://medium.com/paloaltoconnect/palo-alto-race-equity-priorities-progress- update-61bdb152b3be) shares information about how the public can report hate crimes or incidents and participate in this important dialogue. The Policy and Services Committee reviewed quarterly race and equity updates in September 2021 and February 2022. At both meetings, the Committee made unanimous recommendations to the City Council related to a variety of topics including hate crimes and incidents. The Committee decided that the discussion of whether to pursue a hate crimes ordinance was one that should come to the full City Council for action before additional resources are dedicated to it. The rest of the items from those September and February motions were forwarded to the City Council on the May 2, 2022 Consent Agenda (CMR #14194; pdf page 35). The specific action related to whether to pursue a hate crimes ordinance came from the Policy City of Palo Alto Page 2 and Services Committee at the September 14, 2021 Meeting. The motion was: Enable the HRC to further develop the idea of a misdemeanor ordinance and other method to deter hateful speech while complying with the constitution. As the Human Relations Commission (HRC) continues to discuss this topic, they voted at the March 10, 2022 meeting to support a recommendation to bring the FBI and community resources to Palo Alto to do community education on hate crimes. In addition, the HRC voted to make a recommendation to the City Council to increase public awareness and marketing on how to report a hate crime and hate incidents. Discussion Federal studies have shown a troubling growth in hate crimes nationally in recent years with hate incidents becoming an increasing concern locally and regionally. The City of Palo Alto strives to be a welcoming and inclusive community for people of all backgrounds and ethnicities and this is a core goal of the race and equity work of the City. In this effort of promoting an inclusive community, the City has increased focus on prevention of and response to hate crimes. This includes increasing partnerships with local organizations to expand awareness of how to report a hate crime or incident as well as safe ways to intervene (if appropriate); this also includes the efforts of the Police Department and legal system to be most responsive when hate crimes or incidents do occur. This staff report is in response to both the Policy and Service Committee and HRC discussions on hate crimes and seeks City Council input on recommendations following additional research on this important issue. After researching state and federal law on hate crimes and hate incidents, staff recommends that Palo Alto’s efforts to combat hate crimes and incidents be directed toward expanding community awareness, increasing incident reporting, and supporting victims, their families, and communities, rather than developing a new criminal ordinance at the municipal level. Specifically, Palo Alto can continue and seek to enhance its use of communication channels and other tools to foster residents’ knowledge of their rights and resources that can be made available. Palo Alto can also continue to strongly encourage victims to report hate incidents and crimes to the police, with a goal of ensuring that incidents rising to a criminal level are fully investigated and prioritized for prosecution, and that other hate incidents are recognized and appropriately responded to. Existing state laws punish hate-based criminal conduct to the extent permitted by the U.S. Constitution. A local ordinance would have to comply with the same Constitutional limitations and would not likely be a useful tool for police or prosecutors. Increasing awareness and promoting reporting, on the other hand, could make valuable contributions to the effort to foster healthy and safe communities where all residents can experience a strong sense of belonging without fear. Completed and Ongoing Communications and Community Engagement Efforts Related to Hate Crimes and Hate Incidents City of Palo Alto Page 3 In 2021, the Police Department established a procedure of sharing news releases to increase public information about hate crimes that occur in Palo Alto. The goal of sharing details on these incidents is three-fold; asking the public for help in gaining more details about specific incidents, increasing public awareness, and encouraging the public to report these types of incidents so that the Department can investigate and pursue prosecution of hate crimes. In addition, to build community awareness about the complexity of these types of incidents, the Police Department hosted a town hall meeting in the fall of 2021 on hate crimes and other community events in 2021 related to this topic. Finally, the City released a blog post about how the community can report these types of incidents to the Police Department and other tools to foster community knowledge of their rights and resources available, and the importance of reporting these incidents so that the Police Department can fully investigate these issues. Community events hosted in 2021 to build community awareness about hate crimes and hate incidents included: • March 17, 2021: Hate Crimes Presentation to HRC (including the Palo Alto Police Department and District Attorney representatives) • April 19, 2021: Safety and Awareness at Avenidas #1 • April 26, 2021: Safety and Awareness at Avenidas #2 (including Chiefs Galea and Jonsen, and a bilingual officer) • October 20, 2021: from 6-8pm CommUNITY Together: Recognizing and Reporting Hate Crimes in the Community (hosted by City of Palo, in partnership with the HRC and including a panel of experts including the Palo Alto Police Department, the District Attorney’s Office and Stanford University) Each of these events included education on applicable laws and Department policies and procedures, explanation of the distinction between hate crimes and hate incidents, a statistical overview, discussion of recent incidents, and question and answer sessions. Current Practices in Response to Hate Incidents and Crimes The Police Department’s existing policies and procedures provide for the thorough investigation and documentation of both hate crimes and hate incidents. Consistent with state law, the Department has a Hate Crimes policy (§338). The Hate Crimes policy (Attachment A) promotes the safety and security of individuals in Palo Alto by providing detailed requirements for investigation, evidence collection, victim support, community outreach, and training. See attached policy for additional detail. The Department also provides related training to its officers beyond what is provided as part of the CA POST basic police academy curriculum (which already provides all peace officers in California with specific training on hate crimes). In addition to this state-mandated basic training, the Department provides continued professional training relating to hate crimes to its officers on a regular basis and with more frequency than required by POST. The Department City of Palo Alto Page 4 also complies with the guidelines established by the Santa Clara County Hate Crimes Protocol (Attachment B), which standardizes the responses of agencies within the County and ensures compliance with applicable state law. See attached policy for additional detail. The Department thoroughly investigates hate crimes. This includes interviews with victims, witnesses and suspects; evidence collection; canvassing of neighborhoods for any available surveillance video; working with regional law enforcement partner agencies to identify any similar cases; and meticulously documenting all these steps in a crime report. If probable cause exists for an arrest, the Department will make an arrest. If the circumstances warrant, the Department can also send the crime report to the District Attorney’s Office for review for any appropriate charges. The Department works closely with subject matter experts at the Santa Clara County District Attorney’s Office to ensure that hate crimes with an identified suspect are correctly classified, charged and prosecuted. And, while the Department had always conducted investigations and completed reports regarding non-criminal hate incidents, in 2021, the Department created a separate reporting classification of “Hate Incident” to make these incidents more readily recognizable and trackable over time. Collecting this data allows the City to better support affected communities, provides credible information for the public, shows victims that they are not alone, and helps researchers in determining trends in hate incidents. Beyond these measures, as noted above, the Department continues to take steps to build public awareness of hate incidents and hate crimes. Over the past twelve months, in the conjunction with the Santa Clara County District Attorney’s Office, the Department led numerous public informational sessions regarding hate crimes and hate incidents, including a bilingual event. These events reinforce the message that hate incidents are taken seriously by the Department, even if they are not criminal. The Department also uses these events to inform the public about how to respond if they witness a hate incident or hate crime. Public engagement is a key element of the Department’s efforts to reduce the instances and impacts of hate incidents and hate crimes. Hate Incidents and Crimes under the California Criminal Code and U.S. Constitution California has enacted numerous statutes to address hate crimes, including expanding the characteristics protected under hate crime statutes. Please see Attachment C for a detailed description of California hate crimes laws, as well as the requirements of the state and federal constitutions that circumscribe criminalization of hate speech in some cases. Attachment C also includes information about how hate crime prosecutions are handled by the Santa Clara County District Attorney’s Office. California law is responsive to hate incidents and hate crimes to the extent permitted by the state and federal constitutions. A municipal misdemeanor ordinance could not go further than state law currently does to deter or punish hate incidents. The Penal Code also provides a robust structure of punitive, preventative, and restorative tools to address the harms City of Palo Alto Page 5 committed to the victims of hate crimes.1 Additionally, the State Legislature appears to be committed to refining and supporting a strong statewide approach to hate crimes and hate incidents. Human Relations Commission Work on Hate Crimes & Incidents The Human Relations Commission (HRC) discussed hate crimes and incidents at their March 10, 2022 meeting and determined that further community education is necessary on this topic. They proposed bringing the Federal Bureau of Investigations (FBI) and other community resources to Palo Alto to help with this community education and awareness. Additionally, the HRC proposed the recommendation for the City Council to increase public awareness and marketing on how to report hate crimes and hate incidents. Enhancing existing staff work on this topic would require resources as there is currently no budget to expand further than noted above. The City Council could consider allocating resources to this effort per the HRC recommendation if desired to enhance existing work underway. Resource Impact As discussed in this report, Staff does not recommend the pursuit of a local hate crimes ordinance. In 2021, the City has expanded communications related to hate crimes and hate incidents occurring in the community, including hosting community meetings and a town hall, issuing news releases on hate crimes that have occurred, publishing a blog post sharing details about how to report hate crimes and hate incidents, and additional public information and awareness using existing City communications channels. If the City Council would like to pursue increased public awareness and marketing on how to report a hate crime and hate incident, staff would assess costs associated. Stakeholder Engagement Community engagement is an integral part of Palo Alto’s race and equity work. Engaging the community at large to provide feedback for the City’s Race and Equity strategy has been a priority throughout this process as shown in the Framework. The City continues to engage the community through a series of Race and Equity conversations. Updates on the City’s ongoing efforts can be found on the Race and Equity webpage on the City website (www.cityofpaloalto.org/raceandequity). Related to hate crimes and incidents, the City continues to look for community partners to help increase awareness similar to the work the HRC continues to lead. Environmental Review This action is not a project and therefore not subject to environment review in accordance with the California Environmental Quality Act. 1 For more information about sentencing, restorative justice, and civil law responses to hate crimes, see the California Attorney General’s Guidance to Prosecutors on Hate Crimes (Jul. 2021), https://oag.ca.gov/system/files/media/hc-prosecutor-guidance.pdf. City of Palo Alto Page 6 Attachments: • Attachment A: PAPD.Policy.338 • Attachment B: Santa Clara County Hate Crimes • Attachment C-Hate Crimes and Hate Incidents under the California Penal Code and the State and Federal Constitutions Policy 338 Palo Alto Police Department Policy Manual Copyright Lexipol, LLC 2022/04/20, All Rights Reserved. Published with permission by Palo Alto Police Department Hate Crimes - 204 Hate Crimes 338.1 POLICY The Palo Alto Police Department recognizes and places a high priority on the rights of all individuals guaranteed under the state and federal constitution and incorporated in state and federal law. The Palo Alto Police Department hate crimes policy is drafted in accordance with the Santa Clara County Protocols. Personnel are required to read and follow the additional guidelines set forth in the Santa Clara County Protocols Section 10 - Santa Clara County Law Enforcement Policy Statement Regarding Hate Crimes. 338.2 POLICY ISSUE DATE Updated: 12-8-16 Updated: 5-3-17 Updated: 3-19-20 Updated: 1-13-21 338.3 PURPOSE AND SCOPE This policy is designed to assist in identifying and handling crimes motivated by hate or other bias toward individuals and groups with legally defined protected characteristics, to define appropriate steps for assisting victims, and to provide a guide to conducting related investigations. It outlines the general policy framework for prevention, response, accessing assistance, victim assistance and follow-up, and reporting as related to law enforcement’s role in handling hate crimes. It also serves as a declaration that hate crimes are taken seriously and demonstrates how the Palo Alto Police Department may best use its resources to investigate and solve an offense, in addition to building community trust and increasing police legitimacy (Penal Code § 13519.6). 338.3.1 DEFINITION AND LAWS In accordance with Penal Code § 422.55; Penal Code § 422.56; Penal Code § 422.6; and Penal Code § 422.87, for purposes of all other state law, unless an explicit provision of law or the context clearly requires a different meaning, the following shall apply: Bias motivation - Bias motivation is a pre-existing negative attitude toward actual or perceived characteristics referenced in Penal Code § 422.55. Depending on the circumstances of each case, bias motivation may include but is not limited to hatred, animosity, discriminatory selection of victims, resentment, revulsion, contempt, unreasonable fear, paranoia, callousness, thrill-seeking, desire for social dominance, desire for social bonding with those of one’s “own kind,” or a perception of the vulnerability of the victim due to the victim being perceived as being weak, worthless, or fair game because of a protected characteristic, including but not limited to disability or gender. Palo Alto Police Department Policy Manual Hate Crimes Copyright Lexipol, LLC 2022/04/20, All Rights Reserved. Published with permission by Palo Alto Police Department Hate Crimes - 205 Disability - Disability includes mental disability and physical disability as defined in Government Code § 12926, regardless of whether those disabilities are temporary, permanent, congenital, or acquired by heredity, accident, injury, advanced age, or illness. Disability bias - In recognizing suspected disability-bias hate crimes, officers should consider whether there is any indication that the perpetrator was motivated by hostility or other bias, occasioned by factors such as but not limited to dislike of persons who arouse fear or guilt, a perception that persons with disabilities are inferior and therefore “deserving victims,” a fear of persons whose visible traits are perceived as being disturbing to others, or resentment of those who need, demand, or receive alternative educational, physical, or social accommodations. In recognizing suspected disability-bias hate crimes, officers should consider whether there is any indication that the perpetrator perceived the victim to be vulnerable and, if so, if this perception is grounded, in whole or in part, in anti-disability bias. This includes but is not limited to situations where a perpetrator targets a person with a particular perceived disability while avoiding other vulnerable-appearing persons, such as inebriated persons or persons with perceived disabilities different from those of the victim. Such circumstances could be evidence that the perpetrator’s motivations included bias against persons with the perceived disability of the victim and that the crime must be reported as a suspected hate crime and not a mere crime of opportunity. Gender - Gender means sex and includes a person's gender identity and gender expression. Gender expression - Gender expression means a person's gender-related appearance and behavior, regardless of whether it is stereotypically associated with the person's assigned sex at birth. Gender identity - Gender identity means each person's internal understanding of their gender, or the perception of a person's gender identity, which may include male, female, a combination of male and female, neither male nor female, a gender different from the person's sex assigned at birth, or transgender (2 CCR § 11030). Hate crime - “Hate crime” includes but is not limited to a violation of Penal Code § 422.6, and means a criminal act committed, in whole or in part, because of one or more of the following actual or perceived characteristics of the victim: (a)Disability (b)Gender (c)Nationality (d)Race or ethnicity (e)Religion (f)Sexual orientation (g)Association with a person or group with one or more of these actual or perceived characteristics: Palo Alto Police Department Policy Manual Hate Crimes Copyright Lexipol, LLC 2022/04/20, All Rights Reserved. Published with permission by Palo Alto Police Department Hate Crimes - 206 1.“Association with a person or group with one or more of these actual or perceived characteristics" includes advocacy for, identification with, or being on the premises owned or rented by, or adjacent to, any of the following: a community center, educational facility, family, individual, office, meeting hall, place of worship, private institution, public agency, library, or other entity, group, or person that has, or is identified with people who have, one or more of the characteristics listed in the definition of “hate crime” under paragraphs 1 to 6, inclusive, of Penal Code § 422.55(a). Note: A “hate crime” need not be motivated by hate but may be motivated by any bias against a protected characteristic. Hate incident - A hate incident is an action or behavior motivated by hate or bias but legally protected by the First Amendment right to freedom of expression. Examples of hate incidents include: •Name-calling •Insults and epithets •Distributing hate material in public places •Displaying hate material on your own property Hate speech - The First Amendment to the U.S. Constitution protects most speech, even when it is disagreeable, offensive, or hurtful. The following types of speech are generally not protected: •Fighting words •True threats •Perjury •Blackmail •Incitement to lawless action •Conspiracy •Solicitation to commit any crime In whole or in part - “In whole or in part because of” means that the bias motivation must be a cause in fact of the offense whether or not other causes also exist. When multiple concurrent motives exist, the prohibited bias must be a substantial factor in bringing about the particular result. There is no requirement that the bias be a main factor, or that a crime would not have been committed but for the actual or perceived characteristic. Nationality - Nationality means country of origin, immigration status, including citizenship, and national origin. Race or ethnicity - Race or ethnicity includes ancestry, color, and ethnic background. Palo Alto Police Department Policy Manual Hate Crimes Copyright Lexipol, LLC 2022/04/20, All Rights Reserved. Published with permission by Palo Alto Police Department Hate Crimes - 207 Religion - Religion includes all aspects of religious belief, observance, and practice and includes agnosticism and atheism. Sexual orientation - Sexual orientation means heterosexuality, homosexuality, or bisexuality. Victim - Victim includes but is not limited to: •Community center •Educational facility •Entity •Family •Group •Individual •Office •Meeting hall •Person •Place of worship •Private institution •Public agency •Library •Other victim or intended victim of the offense 338.4 PLANNING AND PREVENTION In order to facilitate the guidelines contained within this policy, [department/office] members will continuously work to build and strengthen relationships with the community, engage in dialogue, and provide education to the community about this policy. [Department/Office] personnel are also encouraged to learn about the inherent issues concerning their communities in relation to hate crimes. Although hate incidents are not criminal events, they can be indicators of, or precursors to, hate crimes. Hate incidents should be investigated and documented as part of an overall strategy to prevent hate crimes. 338.4.1 HATE CRIMES COORDINATOR A [department/office] member appointed by the Chief of Police or the authorized designee will serve as the Hate Crimes Coordinator. The responsibilities of the Hate Crimes Coordinator should include but not be limited to (Penal Code § 422.87): (a)Meeting with residents in target communities to allay fears; emphasizing the [department/office]’s concern over hate crimes and related incidents; reducing the potential for counter-violence; and providing safety, security, and crime-prevention Palo Alto Police Department Policy Manual Hate Crimes Copyright Lexipol, LLC 2022/04/20, All Rights Reserved. Published with permission by Palo Alto Police Department Hate Crimes - 208 information. Cultural diversity education and immersion programs (if available) could facilitate this process. (b)Finding, evaluating, and monitoring public social media sources to identify possible suspects in reported hate crimes; to identify suspects or suspect groups in future hate crimes or hate incidents affecting individuals, groups, or communities that may be victimized; and to predict future hate-based events. (c)Providing direct and referral assistance to the victim and the victim’s family. (d)Conducting public meetings on hate crime threats and violence in general. (e)Establishing relationships with formal community-based organizations and leaders. (f)Expanding, where appropriate, preventive programs such as hate, bias, and crime- reduction seminars for students. (g)Reviewing the Attorney General’s latest opinion on hate crime statistics and targets in order to prepare and plan for future crimes, specifically for Arab/Middle Eastern and Muslim communities (Penal Code § 13519.6(b)(8)). (h)Providing orientation of and with communities of specific targeted victims such as immigrants, Muslims, Arabs, LGBTQ, black or African-American, Jewish, Sikh, and persons with disabilities. (i)Coordinating with the Personnel and Training Lieutenant to include in a training plan recognition of hate crime bias characteristics, including information on general underreporting of hate crimes. (j)Verifying a process is in place to provide this policy and related orders to officers in the field; and taking reasonable steps to rectify the situation if such a process is not in place. (k)Taking reasonable steps to ensure hate crime data is provided to the Technical Services Division for mandated reporting to the Department of Justice. (l)Reporting any suspected multi-mission extremist crimes to the agency Terrorism Liaison Officer, the assigned designee, or other appropriate resource; and verifying that such data is transmitted to the Joint Regional Information Exchange System in accordance with the protocols of the Technical Services Division Policy. (m)Maintaining the [department/office]’s supply of up-to-date hate crimes brochures (Penal Code § 422.92; Penal Code § 422.87). (n)Annually assessing this policy, including: 1.Keeping abreast of the Commission on Peace Officer Standards and Training (POST) model policy framework for hate crimes for revisions or additions, including definitions, responsibilities, training resources, and planning and prevention methods. 2.Analysis of the [department/office]’s data collection as well as the available outside data (e.g., annual California Attorney General’s report on hate crime) in preparation for and response to future hate crimes. Palo Alto Police Department Policy Manual Hate Crimes Copyright Lexipol, LLC 2022/04/20, All Rights Reserved. Published with permission by Palo Alto Police Department Hate Crimes - 209 338.4.2 RELEASE OF INFORMATION Establishing a relationship with stakeholders, before any incident occurs, to develop a network and protocol for disclosure often assists greatly in any disclosure. The benefit of public disclosure of hate crime incidents includes: (a)Dissemination of correct information. (b)Assurance to affected communities or groups that the matter is being properly and promptly investigated. (c)The ability to request information regarding the commission of the crimes from the victimized community. Information or records relating to hate crimes subject to public disclosure shall be released as provided by the Records Maintenance and Release Policy or as allowed by law. In accordance with the Media Relations Policy, the supervisor, public information officer, or the authorized designee should be provided with information that can be responsibly reported to the media. When appropriate, the [department/office] spokesperson should reiterate that hate crimes will not be tolerated, will be investigated seriously, and will be prosecuted to the fullest extent of the law. The [Department/Office] should consider the following when releasing information to the public regarding hate crimes and hate incidents that have been reported within the jurisdiction: •Inform community organizations in a timely manner when a community group has been the target of a hate crime. •Inform the community of the impact of these crimes on the victim, the victim’s family, and the community, and of the assistance and compensation available to victims. •Inform the community regarding hate crime law and the legal rights of, and remedies available to, victims of hate crimes. •Provide the community with ongoing information regarding hate crimes and/or hate incidents. 338.5 RESPONSE, VICTIM ASSISTANCE, AND FOLLOW-UP 338.5.1 INITIAL RESPONSE First responding officers should know the role of all [department/office] personnel as they relate to the [department/office]’s investigation of hate crimes and/or incidents. Responding officers should evaluate the need for additional assistance and, working with supervision and/or investigations, access needed assistance if applicable. At the scene of a suspected hate or bias crime, officers should take preliminary actions reasonably deemed necessary, including but not limited to the following: (a)Use agency checklist (per Penal Code § 422.87) to assist in the investigation of any hate crime (see Appendix). (b)Stabilize the victims and request medical attention when necessary. (c)Properly protect the safety of victims, witnesses, and perpetrators. Palo Alto Police Department Policy Manual Hate Crimes Copyright Lexipol, LLC 2022/04/20, All Rights Reserved. Published with permission by Palo Alto Police Department Hate Crimes - 210 1.Assist victims in seeking a Temporary Restraining Order (if applicable). (d)Notify other appropriate personnel in the chain of command, depending on the nature and seriousness of the offense and its potential inflammatory and related impact on the community. (e)Properly protect, preserve, and process the crime scene, and remove all physical evidence of the incident as soon as possible after the offense is documented. If evidence of an inflammatory nature cannot be physically removed, the property owner should be contacted to facilitate removal or covering as soon as reasonably possible. [Department/Office] personnel should follow up with the property owner to determine if this was accomplished in a timely manner. (f)Collect and photograph physical evidence or indicators of hate crimes such as: 1.Hate literature. 2.Spray paint cans. 3.Threatening letters. 4.Symbols used by hate groups. (g)Identify criminal evidence on the victim. (h)Request the assistance of translators or interpreters when needed to establish effective communication with witnesses, victims, or others as appropriate. (i)Conduct a preliminary investigation and record pertinent information including but not limited to: 1.Identity of suspected perpetrators. 2.Identity of witnesses, including those no longer at the scene. 3.The offer of victim confidentiality per Government Code § 6254. 4.Prior occurrences in this area or with this victim. 5.Statements made by suspects; exact wording is critical. 6.The victim's protected characteristics and determine if bias was a motivation “in whole or in part” in the commission of the crime. (j)Adhere to Penal Code § 422.93, which protects hate crime victims and witnesses from being reported to federal immigration authorities if they have not committed any crime under state law. (k)Provide information regarding immigration remedies available to victims of crime (e.g., U-Visa, T-Visa, S-Visa). (l)Provide the [department/office]’s Hate Crimes Brochure (per Penal Code § 422.92) if asked, if necessary, or per policy. (m)Utilize proper techniques for interviewing people with disabilities and be aware of and provide appropriate accommodations (e.g., ADA standards, Braille, visuals, translators for the deaf or hard of hearing). Palo Alto Police Department Policy Manual Hate Crimes Copyright Lexipol, LLC 2022/04/20, All Rights Reserved. Published with permission by Palo Alto Police Department Hate Crimes - 211 (n)Document any suspected multi-mission extremist crimes. 338.5.2 INVESTIGATION Investigators at the scene of, or performing follow-up investigation on, a suspected hate or bias crime or hate incident should take all actions deemed reasonably necessary, including but not limited to the following: (a)Consider typologies of perpetrators of hate crimes and incidents, including but not limited to thrill, reactive/defensive, and mission (hard core). (b)Utilize investigative techniques and methods to handle hate crimes or hate incidents in a professional manner. (c)Utilize proper techniques for interviewing people with disabilities and be aware of and provide appropriate accommodations (e.g., ADA standards, Braille, visuals, translators for the deaf or hard of hearing). (d)Properly investigate any report of a hate crime committed under the color of authority per Penal Code § 422.6 and Penal Code § 13519.6. (e)Document physical evidence or indicators of hate crimes, in accordance with the provisions of the Property and Evidence Policy, such as: 1.Hate literature. 2.Spray paint cans. 3.Threatening letters. 4.Symbols used by hate groups. 5.Desecration of religious symbols, objects, or buildings. (f)Request the assistance of translators or interpreters when needed to establish effective communication. (g)Conduct a preliminary investigation and record information regarding: 1.Identity of suspected perpetrators. 2.Identity of witnesses, including those no longer at the scene. 3.Offer of victim confidentiality per Government Code § 6254. 4.Prior occurrences, in this area or with this victim. 5.Statements made by suspects; exact wording is critical. 6.Document the victim’s protected characteristics. (h)Provide victim assistance and follow-up. (i)Canvass the area for additional witnesses. (j)Examine suspect’s social media activity for potential evidence of bias motivation. (k)Coordinate the investigation with [department/office], state, and regional intelligence operations. These sources can provide the investigator with an analysis of any patterns, organized hate groups, and suspects potentially involved in the offense. Palo Alto Police Department Policy Manual Hate Crimes Copyright Lexipol, LLC 2022/04/20, All Rights Reserved. Published with permission by Palo Alto Police Department Hate Crimes - 212 (l)Coordinate the investigation with the crime scene investigation unit (if applicable) or other appropriate units of the [Department/Office]. (m)Determine if the incident should be classified as a hate crime. (n)Take reasonable steps to provide appropriate assistance to hate crime victims, including the following measures: 1.Contact victims periodically to determine whether they are receiving adequate and appropriate assistance. 2.Provide ongoing information to victims about the status of the criminal investigation. 3.Provide victims and any other interested persons the brochure on hate crimes per Penal Code § 422.92 and information on any local advocacy groups (if asked). (o)Document any suspected multi-mission extremist crimes. (p)Coordinate with other law enforcement agencies in the area to assess patterns of hate crimes and/or hate incidents, and determine if organized hate groups are involved. 338.5.3 SUPERVISION The supervisor shall confer with the initial responding officer and take reasonable steps to ensure that necessary preliminary actions have been taken. The supervisor shall request any appropriate personnel necessary to accomplish the following: (a)Provide immediate assistance to the crime victim by: 1.Expressing the [department/office]’s official position on the importance of these cases and the measures that will be taken to apprehend the perpetrators. 2.Expressing the [department/office]’s interest in protecting victims’ anonymity (confidentiality forms, Government Code § 6254) to the extent reasonably possible. Allow the victims to convey their immediate concerns and feelings. 3.Identifying individuals or agencies that may provide victim assistance and support. Local victim assistance resources may include family members or close acquaintances, clergy, or a [department/office] chaplain, as well as community service agencies that provide shelter, food, clothing, child care, or other related services (per Penal Code § 422.92). (b)Take reasonable steps to ensure that all relevant facts are documented on an incident and/or arrest report and make an initial determination as to whether the incident should be classified as a hate crime for federal and state bias-crimes reporting purposes. (c)Notify other appropriate personnel in the chain of command, depending on the nature and seriousness of the offense and its potential inflammatory and related impact on the community. (d)In cases of large-scale hate crime waves, or in circumstances where the potential exists for subsequent hate crimes or incidents, consider directing resources to protect vulnerable sites (such as assigning an officerto specific locations that could become targets). Palo Alto Police Department Policy Manual Hate Crimes Copyright Lexipol, LLC 2022/04/20, All Rights Reserved. Published with permission by Palo Alto Police Department Hate Crimes - 213 (e)Verify hate crimes are being properly reported, including reporting to the Department of Justice, pursuant to Penal Code § 13023. (f)Verify adherence to Penal Code § 422.93, which protects hate crime victims and witnesses from being reported to federal immigration authorities if they have not committed any crime under state law. Supervisors should also be aware of the immigration remedies available to victims of crime (e.g., U-Visa, T-Visa, S-Visa). (g)Respond to and properly initiate an investigation of any reports of hate crimes committed under the color of authority. (h)Provide appropriate assistance, including activating the California Department of Justice hate crime rapid response protocol if necessary. For additional information refer to the California Department of Justice website. (i)Verify reporting of any suspected multi-mission extremist crimes to the agency Hate Crimes Coordinator. (j)Make a final determination as to whether the incident should be classified as a hate crime and forward to the Chief of Police for approval. 338.6 TRAINING All members of this [department/office] will receive POST-approved training on hate crime recognition and investigation as provided by Penal Code § 13519.6. Training should include (Penal Code § 422.87): (a)Recognition of bias motivators such as ranges of attitudes and perceptions toward a specific characteristic or group, including disability bias, gender bias, and religion bias. (b)Accurate reporting by officers, including information on the general underreporting of hate crimes. (c)Distribution of hate crime brochures. 338.7 APPENDIX See attachments: Statutes and Legal Requirements.pdf Hate Crime Checklist.pdf Santa Clara County Law Enforcement Policy Statement Regarding Hate Crimes Santa Clara County's Law Enforcement Agencies and District Attorney's Office are committed to thorough and effective investigation of hate crimes. This commitment recognizes the importance of respecting victimized persons and holding offenders fully responsible for their criminal conduct. The Santa Clara County Police Chiefs' Association adopts the attached policy statement regarding hate crimes. Chief Bruce Cumming Chair, Police Chiefs' Association 0 Santa Clara County Members: CALIFORNIA HIGHWAY PATROL Captain Cathy Wayne CAMPBELL POLlCE DEPARTMENT Chief David Gullo GILROY POLICE DEPARTMENT Chief Denise Turner LOS ALTOS POLICE DEPARTMENT Chief Tuck Younis LOS GATOS/MONTE SERENO POLICE DEPT. August l±.. 2008 PALO ALTO POLICE DEPARTMENT Chief Lynne Johnson SAN JOSE POLICE DEPARTMENT Chief Rob Davis SAN JOSE STATE UNIVERSITY POLICE DEPT. Chief Andre Barnes SANTA CLARA COUNTY DISTRICT ATTORNEY'S OFFICE Dolores A. Carr, District Attorney Chief Scott Seaman SANTA CLARA POLICE DEPARTMENT MILPITAS POLICE DEPARTMENT Chief Dennis Graham MOUNTAIN VIEW POLICE DEPARTMENT Chief Scott Venneer Chief Stephen Lodge SUNNYV ALE DEPARTMENT OF PUBLIC SAFETY Chief Don Johnson • SANTA CLARA COUNTY LAW ENFORCEMENT POLICY STATEMENT REGARDING HATE CRIMES POLICY The members of the Santa Clara County Police Chiefs' Association (the "Association") agree to focus agency administrative, investigative and enforcement resources toward eliminating hate crimes through enforcement, in-service training, victim assistance and community crime prevention efforts. PROFESSIONAL EXPECTATIONS "Hate Crime" means a criminal act committed, in whole or in part, because of one or more of the following actual or perceived characteristics of the victim: disability, gender, nationality, race or ethnicity, religion, sexual orientation, or association with a person or group with one or more of these actual or perceived characteristics. The underlying bias must be a substantial factor in the perpetrator's motivation to commit the crime. Such crimes attack the basic values of American society by targeting the right of every resident to live safely and freely. They are especially pernicious because they can provoke retaliation, inflict significant emotional harm on their victims, and polarize communities. We recognize the impact of these crimes on victims, their families and our community. Therefore, we are committed to the highest professional standards when dealing with hate crimes. REPORTING The Association acknowledges the critical importance of thoroughly reporting and tracking hate crimes. Each agency is responsible for ensuring its communications staff receive training in identifying hate crimes. This will help ensure an appropriate response to reported hate crimes. In addition, the Association acknowledges the importance of encouraging community members to report all bias-related incidents, even when they do not rise to the level of a hate crime. This will allow agencies to take measures to prevent such incidents from escalating into hate crimes. Reports should contain, when appropriate, suspect's and victim's disability, gender, nationality, race or ethnicity, religion, sexual orientation, or association with a person or group with one or more of these actual or perceived characteristics Such reports should also include information and any quotes which indicate why the crime appears to have been committed substantially because of the victim's disability, gender, nationality, race or ethnicity, religion, sexual orientation, or association with a person or group with one or more of these actual or perceived characteristics. All hate crimes shall be documented on the appropriate crime report forms, ensuring that the hate crime fields are properly marked. All reported bias-related incidents that do not rise to the level of a hate crime will nonetheless be documented. A designee in the agency will collect, review and store all incident reports to assist in pattern analysis and aid in the prosecution of hate crimes. The report, when appropriate, will state suspect's and victim's disability, gender, nationality, race or ethnicity, religion, sexual orientation, or association. This information will be utilized for follow-up and appropriate referral to mutually concerned agencies, including the Santa Clara County Network for a Hate-Free Community. PATROL OFFICER RESPONSE When a patrol officer determines that a hate crime has occurred, the officer shall conduct a thorough preliminary investigation consistent with agency policies and procedures. The investigation will focus on the identification, apprehension and prosecution of suspects. Officers will maintain objectivity in reporting hate crimes. An arrest shall be made when appropriate. Officers shall document elements of the crime, description of injuries and all evidence collected. Officers will be aware of the emotional trauma associated with hate crimes and be sensitive to the victim's feelings, needs and fears. Officers will explain the options available to the victim, including the citizen's arrest process; temporary restraining orders (if applicable), and in cases of arrest, the follow-up procedures and ensuing criminal proceedings. Officers will inform the victim of available department and community resources, including resources available from the Santa Clara County Victim Witness Assistance Center and the Santa Clara County Network for a Hate-Free Community. INVESTIGATION All reported hate crimes will receive thorough follow-up investigation consistent with agency policies and procedures. Investigators will maintain liaisons with appropriate state, federal and local law enforcement agencies for intelligence and information exchange and assistance. To the maximum extent possible, agencies will assign responsibility for investigating hate crimes to a specific team or individual. PREVENTION EFFORTS All agencies will develop and implement innovative strategies designed to prevent and reduce the spread of hate crimes and bias-motivated incidents within their communities. The agencies will develop programs that are consistent with their mission and values statements. Agencies will engage community leaders and organizations in their prevention efforts and have brochures available to the public pursuant to Penal Code section 422.92. TRAINING It is the policy of the Association to encourage and facilitate hate crime training for public safety personnel in accordance with Penal Code section 13519.6. The Association will facilitate the development of training that will assist local agencies in hate crime education. Departments will develop procedures to accomplish formal on~the-job training. The training will follow California Peace Officer Standards and Training guidelines. PROSECUTING A TIORNEY The Santa Clara County District Attorney's Office recognizes the distinctive fear and stress typically suffered by victims of hate crimes, the potential for reprisal and escalation of violence, and the far~reaching negative consequences that hate crimes have on our community. The District Attorney's Office considers hate crimes to be very serious and is committed to prosecuting hate crimes aggressively through vertical prosecution. Attachment C 1 Hate Crimes and Hate Incidents under the California Penal Code and the State and Federal Constitutions Section 422.55 of the Penal Code of the State of California defines a hate crime as follows: A “hate crime” is a criminal act committed, in whole or in part, because of one or more of the following actual or perceived characteristics of the victim: (1) disability, (2) gender, (3) nationality, (4) race or ethnicity, (5) religion, (6) sexual orientation, and (7) association with a person or group with one or more of these actual or perceived characteristics. Penal Code section 422.6 makes it a crime to do either of the following in whole or in part because of one or more of the actual or perceived characteristics of the victim listed in Section 422.55: . . . by force or threat of force, willfully injure, intimidate, interfere with, oppress, or threaten any other person in the free exercise or enjoyment of any right or privilege secured to him or her by the Constitution or laws of this state or by the Constitution or laws of the United States (Pen. Code, § 422.6(a)); or . . . knowingly deface, damage, or destroy the real or personal property of any other person for the purpose of intimidating or interfering with the free exercise or enjoyment of any right or privilege secured to the other person by the Constitution or laws of this state or by the Constitution or laws of the United States (Pen. Code, § 422.6(b)). A hate incident is legally distinguishable from a hate crime because it involves speech or behavior that, while motivated by hate, is legally protected by the right to freedom of expression granted by the U.S. Constitution’s First Amendment. Examples of hate incidents include: • Name-calling • Insults • Slurs • Distribution of hate material in public places, and • Displays of hate material on one’s own property. The First Amendment to the U.S. Constitution (included in the Bill of Rights) protects hate speech as long as it does not interfere with the civil rights of others. To ensure that First Amendment- protected speech is not criminalized, California Penal Code section 422.6 provides: “[N]o person may be convicted of violating subdivision [422.6(a)] based upon speech alone, except upon a showing that the speech itself threatened violence against a specific person or group of persons and that the defendant had the apparent ability to carry out the threat.” 2 If a hate incident elevates to include threats to a person or property, it may become a hate crime.1 In addition to the crime of using force, threats or vandalism to interfere with civil rights (Pen. Code, § 422.6), as noted above, California law provides for other types of conduct to be prosecuted as hate crimes, such as: • Vandalism of a place of worship (Pen. Code, § 594.3) • Disturbing religious meetings (Pen. Code, § 302) • Terrorizing private property (Pen. Code, § 11411) • Religious terrorism (Pen. Code, § 11412) California law also provides for protection against further harm and other forms of restitution in connection with a hate crime by permitting or requiring the issuance of protective orders or education programs: • Penal Code section 136.2 grants hate crime victims the right to a court order prohibiting additional harassment during the pendency of the criminal proceeding. • As a condition of probation, Penal Code section 422.85 provides for a protective order for the victim and their immediate family or domestic partner, as well as court ordered civil rights training for and restitution by the defendant. • Penal Code section 422.88 requires the court in a criminal proceeding stemming from an alleged hate crime to take all actions reasonably required, including granting restraining orders, to safeguard the health, safety, or privacy of the alleged victim, or of a person who is a victim of, or at risk of becoming a victim of, a hate crime. • Penal Code section 422.865, subd. (b) requires a protective order for the victim or known immediate family or domestic partner in cases where a defendant who is committed to a state hospital or other treatment facility, is either placed on outpatient status or conditional release. • For supervised release of defendants in cases of bias-motivated crimes from state hospitals or treatment facilities, Penal Code section 422.865, subd. (a) allows a court or community program director to order that the defendant complete certain trainings developed or authorized by the court or local agencies in cooperation with organizations serving the affected community. State law addressing hate incidents and hate crimes has also been a recent subject of legislative updates, with statewide updates to law enforcement agencies’ hate crime policies coming into effect as recently as January 1, 2022.2 The state legislature is continuing its efforts to fine-tune and standardize local law enforcement agencies’ handling of hate crimes and hate incidents with Assembly Bill (AB) 1947, currently pending in the Legislature. At the time of this writing, AB 1947 would require, among other 1 See, e.g., In re M.S. (1995) 10 Cal.4th 698; People v. Superior Ct. (Aishman) (1995) 10 Cal.4th 735; and Wisconsin v. Mitchell (1993) 508 U.S. 476. See also Pen. Code, § 11410. 2 See Assembly Bill (AB) 57 (2021). 3 things, that all local law enforcement agencies use the state’s definition of “hate crime,” develop an adequate response policy to hate crimes, and consider key characteristics of a crime that may indicate whether it was motivated by a victim’s protected characteristics. AB 1947 continues the state legislature’s efforts to develop a strong framework to respond to hate crimes and hate incidents and to ensure that these occurrences are addressed in a consistent way throughout California. The requirements of AB 1947, if passed into law, could supersede any local hate crime ordinance. The City Council may wish to support AB 1947. Existing Hate Crime Prosecution by District Attorneys Hate crimes can be challenging to prosecute. Aside from the complex web of state laws that punish individuals who commit hate crimes, there also are state laws and programs protecting victims of hate crimes, which a prosecutor must also heed.3 Due to their complexity, the California Attorney General recommends that local prosecutorial agencies have a designated unit or deputy to review and/or prosecute all hate crimes.4 This kind of specialized prosecution is outside the capabilities of the City of Palo Alto. The City relies on the Santa Clara County District Attorney’s Office to handle complex prosecutions, including hate crimes. As a practical matter, even if Palo Alto was able lawfully to adopt a misdemeanor ordinance punishing hate crimes, a Santa Clara County prosecutor with experience in hate crime prosecution would be highly likely to rely exclusively on state law in their prosecution. The existence of a municipal misdemeanor ordinance would likely have little impact on the prosecutor’s case. 3 See, e.g., Marsy’s Law (Cal. Const. art. I, § 28, subd. (b)), the National District Attorneys Association’s Victim Services and Victims’ Rights: Elevating Victims’ Voices at a Critical Time Best Practices Guide (Apr. 2021), https://ndaa.org/wp-content/uploads/WPS-Victim-Advocacy-Best-Practices-Guide-April-2021-FINAL.pdf 4 See the California Attorney General’s Guidance to Prosecutors on Hate Crimes (Jul. 2021), https://oag.ca.gov/system/files/media/hc-prosecutor-guidance.pdf.