State v. Stalder

• Decision Date: 27 January 1994
• Docket Number: Nos. 79924 and 80126,s. 79924 and 80126
• Citation: 630 So.2d 1072
• Parties: , 19 Fla. L. Weekly S56 STATE of Florida, Petitioner, v. Richard STALDER, Respondent. STATE of Florida, Petitioner, v. Evan Dean LEATHERMAN, Respondent.
• Court: Florida Supreme Court

Page 1072

630 So.2d 1072

62 USLW 2488, 19 Fla. L. Weekly S56

STATE of Florida, Petitioner, v. Richard STALDER, Respondent.

STATE of Florida, Petitioner, v. Evan Dean LEATHERMAN, Respondent.

Nos. 79924 and 80126.

Supreme Court of Florida.

Jan. 27, 1994.

Robert A. Butterworth, Atty. Gen., Parker D. Thomson, Sp. Asst. Atty. Gen., Miami, Gregory Durden, Chief of Civ. Rights, Hollywood, and Michael J. Neimand, Director, Crim. Law, Miami, of Dept. of Legal Affairs, for appellant.

D. Robert Silber, D. Robert Silber, P.A., Fort Lauderdale, and Susan B. Gellman, Capital University Law School, OH, on behalf of Richard Stalder and Evan Dean.

No appearance for Leatherman.

Benedict P. Kuehne and Neal R. Sonnett, Sonnett, Sale & Kuehne, P.A., Miami, and Joan S. Peppard, Associate Southern Counsel, FL Regional Office, for Anti-Defamation League.

Mark Stern and Lois Waldman, New York City, for American Jewish Congress, amicus curiae, for Anti-Defamation League, American Jewish Congress, and Intern. Ass'n of Jewish Lawyers and Jurists (American Section).

Jeanne Baker and Christine Stebbins Dahl, Baker & Moscowitz, and Nina E. Vinik, Staff Counsel, American Civ. Liberties Union Foundation of Florida, Inc., Miami, amicus curiae, for The American Civ. Liberties Union Foundation of FL, Inc.

Robert Augustus Harper, Law Firm of Robert Augustus Harper, P.A., Tallahassee, Chairman, FACDL Amicus Curiae Committee, James T. Miller, Co-Chairman, L. Donald Murrell, President, and Robert S. Griscti, Turner & Griscti, P.A., Gainesville, amicus curiae for FL Ass'n of Crim. Defense Lawyers (FACDL).

SHAW, Justice.

We have for review a trial court order declaring section 775.085, Florida Statutes (1989), commonly referred to as Florida's Hate Crimes Statute, unconstitutional. The order was certified by the district court as passing on an issue of great public importance requiring immediate resolution by this Court. We have jurisdiction. Art. V, Sec. 3(b)(5), Fla. Const. We quash the order.

Herbert Cohen went to Richard Stalder's home on April 14, 1991, to retrieve the earrings of a friend. Stalder then assaulted Cohen and maligned his Jewish heritage, according to the police complaint affidavit:

On the above date the victim went [to] the above address [with] his friend, Denise Avard, [she] being a victim of a battery. The victim made contact with the above subject and when the above answered the door, he stated "Hey Jew boy, what do you want?" The victim stated that he was looking for Denise Avard's earrings. According to sworn statements of both the victim and Denise Avard, the above subject started to yell statements to the victim about his Jewish descent. At one point the above subject pushed the victim and this was witnessed by the subject, Denise Avard. The victim called the police and the above went into his house and locked the door and refused to answer the door. According to the victim, about two months later the victim was by Denise Avard's house and the above subject drove by in a vehicle and yelled at the victim "Hey Jew boy, I'll see you in court."

On the court date the victim went to court and was confronted by the above subject, who stated, "Hey Jew boy, suck on my cock." The victim in giving a statement to this officer feels that the above subject has a hate for Jewish people and that the above subject has a mind set against people who are Jewish. Every time the victim comes in contact with the above subject he makes obscene remarks against him and the Jewish religion. The undersigned detective feels that the victim does have the right to believe that the above subject hates Jews. Statements from both the witness and victim indicate that the charge of battery could be upgraded to a "hate crime."

The State noted as additional proof of Stalder's commission of a "hate crime" the fact that he denounced Cohen during the initial encounter at Stalder's home as a "Jewish lawyer": "Jew boy, you fat Jewish lawyer get the hell off my property...." and "Jewish kike, come on Jewish lawyer ... I'm going to kick your ass...."

Stalder was charged with violating section 784.03(1), Florida Statutes (1989) (simple battery) for pushing Cohen, and the penalty was subject to reclassification pursuant to section 775.085(1) from a first-degree misdemeanor to a third-degree felony. The trial court granted Stalder's pretrial motion to dismiss the enhancement charge, adopting Stalder's argument that the statute violates the Free Speech Clause of the United States Constitution. The State appealed and the district court certified the matter as requiring immediate resolution by this Court. ¹

Stalder contends that the statute is both vague and overbroad and punishes pure thought and expression in violation of the First Amendment. The State, on the other hand, contends that section 775.085 is neither unconstitutionally vague nor overbroad--the statute simply enhances punishment for those crimes that are committed because the victim has one of several identified characteristics. It is the State's position that the statute punishes criminal action, not speech, and thus does not implicate the First Amendment.

We note that Florida's district courts are in disagreement on this issue. See Richards v. State, 608 So.2d 917 (Fla. 3d DCA 1992) (section 775.085 void for vagueness); Dobbins v. State, 605 So.2d 922 (Fla. 5th DCA 1992) (section 775.085 neither vague, overbroad, nor violative of the First Amendment).

Section 775.085 requires penalty enhancement where the commission of any felony or misdemeanor evidences prejudice based on certain characteristics of the victim:

775.085 Evidencing prejudice while committing offense; enhanced penalties.--

(1) The penalty for any felony or misdemeanor shall be reclassified as provided in this subsection if the commission of such felony or misdemeanor evidences prejudice based on the race, color, ancestry, ethnicity, religion, or national origin of the victim:

(a) A misdemeanor of the second degree shall be punishable as if it were a misdemeanor of the first degree.

(b) A misdemeanor of the first degree shall be punishable as if it were a felony of the third degree.

(c) A felony of the third degree shall be punishable as if it were a felony of the second degree.

(d) A felony of the second degree shall be punishable as if it were a felony of the first degree.

Section 775.085(1), Fla.Stat. (1989). ²

Giving plain meaning to the statute's text and title, the provision punishes all who "evidence," or demonstrate, prejudice in the commission of a crime based on an enumerated characteristic of the victim. The statute has three requirements: 1) The perpetrator must demonstrate prejudice, or bias; 2) the bias must be evidenced in the commission of a crime; and 3) the bias must be based on one or more of the enumerated characteristics of the victim. In assessing the constitutionality of this bias-evidencing crimes statute, we turn to two key United States Supreme Court cases: one dealing with bias-inspired expression; the other addressing bias-motivated crimes.

The United States Supreme Court recently addressed the issue of bias-inspired expression in R.A.V. v. City of St. Paul, --- U.S. ----, 112 S.Ct. 2538, 120 L.Ed.2d 305 (1992). There, a juvenile allegedly burned a cross made of broken chair legs on an African-American family's lawn in the early morning hours of June 21, 1990, and was charged with violating a St. Paul, Minnesota, ordinance that bans use of discriminatory symbols or other bias-inspired expression:

Whoever places on public or private property a symbol, object, appellation, characterization or graffiti, including, but not limited to, a burning cross or Nazi swastika, which one knows or has reasonable grounds to know arouses anger, alarm or resentment in others on the basis of race, color, creed, religion or gender commits disorderly conduct and shall be guilty of a misdemeanor.

St. Paul, Minn. Legis.Code Sec. 292.02 (1990). The trial court held that the ordinance violated the First Amendment, but the state supreme court reversed, ruling that because the ordinance reached only expressive activity falling under the rubric of "fighting words" the Free Speech Clause was unavailable. The court noted that this category of expression has traditionally received no First Amendment protection. In re Welfare of R.A.V., 464 N.W.2d 507 (Minn.1991).

The United States Supreme Court disagreed and held the St. Paul ordinance unconstitutional. The Court reasoned thusly: The First Amendment prevents government from banning expressive activity because of disapproval of content or ideas except in certain narrowly defined instances where the category of expression involved is of little social value, such as where the speech constitutes "fighting words." Even with "fighting words," however, a government restriction must operate across the board and may not classify and ban only certain types of "fighting words," ³ for instance only those directed against others based on "race, color, creed, religion or gender." Such a restriction would open the door to government favoritism and protectionism of certain topics and viewpoints and implicit censorship of disfavored ones, as was the case with the St. Paul ordinance:

Although the phrase in the ordinance, "arouses anger, alarm or resentment in others," has been limited by the Minnesota Supreme Court's construction to reach only those symbols or displays that amount to "fighting words," the remaining, unmodified terms make clear that the ordinance applies only to "fighting words" that insult, or provoke violence, "on the basis of race, color, creed, religion or gender." Displays containing abusive invective, no matter how vicious or severe, are permissible unless they are addressed to one of the specified disfavored topics. Those who wish to use "fighting words" in connection with other ideas--to express hostility, for example, on the basis of political affiliation,...