Column: The Hate-Crimes Obstacle Course

Column: The Hate-Crimes Obstacle Course

A hate crime is not necessarily a hate crime, legally speaking – at least not in the death of Paul Kessler, after a Nov. 5 altercation due to a war 8,000 miles to the east.

Kessler, 69, who was Jewish, carried an Israeli flag to protest a day of savagery – Oct. 7 – when Hamas terrorists slaughtered 1,200 people in southern Israel. In Westlake Village, Calif., 40 miles north of Los Angeles, he clashed with pro-Arab protestors where he fell down and struck his head on the pavement. He died in a hospital early the next morning.

Authorities are still investigating the incident, but they arrested the 50-year-old Loay Abdelfattah Alnaji in nearby Moorpark on Thursday last week. They charged him with two felony counts of involuntary manslaughter and battery causing serious bodily injury.

An unofficial version of the episode contends that Alnaji struck Kessler in the face with a megaphone before his fall, and yet another version contends that Kessler was harassing pro-Palestinian activists when he fell, without it being clear if he was even hit by the megaphone.

If the first version is true, in which Alnaji intentionally assaulted Kessler, the incident must have amounted to a hate crime. How could it not? Ventura County District Attorney Erik Nasarenko described the obstacle course that could preclude the episode from constituting a hate crime.

“Looking at the statements as well as the words that accompany this act, we cannot at this time meet the elements of a hate crime,” he said at a press conference last Friday, the Jewish Telegraphic Agency reports. “We will continue to explore and investigate that offense as well as that special allegation.”

Nasarenko added that investigators are inquiring “whether or not the acts, the impact, the force, was accompanied by specific hate speech, specific statements or words that demonstrate antipathy or hatred toward a specific group.”

If this is a dependable guide, then Nasarenko can nail Alnaji for committing hate crimes if he called Kessler “a dirty Jew” or proclaimed that “all Jews must die.”

What are the chances that Alnaji would utter such stark words? What if he called Kessler “a dirty Zionist” or said “from the river to the sea. Palestine will be free?” For all we know, pro-Arab activists can be talking about New Jersey, as in the Delaware River to the Atlantic. Legally, these comments can be way too vague to amount to antisemitism. He could have gotten away with saying “destroy Israel.”

Bigots often talk in code, whether they’re targeting Jews, Blacks, gays, etc. That is because they fear getting into trouble if they are more direct in voicing their beliefs.

Authorities need to employ common sense when determining if an incident qualifies as a hate crime. In a scenario that appears too difficult to parse, they merely need to connect the dots.

Let’s break down the elements of the Westlake incident: Supporters of the Palestinians staged a demonstration to protest Israel’s bombing of Gaza which Hamas claims snuffed out 12,000 lives. Israel is a Jewish state, and it is the only Jewish state in the world. Israel’s bombing campaign commenced because of Hamas’ massacre of Israelis and others, most of whom were Jews, along with the kidnapping of 240 people, also mostly Jews.

Kessler likely felt a strong emotional tie to Israel because he was Jewish; the pro-Arab group may not have known for certain if he was Jewish, but they knew he was standing for Israel.

Plus: Alnaji reposted a video on his now-deleted Instagram in which activist Shahid King Bolsen compared Hamas to iconic civil rights leaders Nelson Mandela and Mahatma Gandhi, according to Fox News. Bolsen said on the video, “If someone asked me to condemn Hamas I would say, what’s the rush?…Let’s wait to see because you might change your mind on this, too – you condemned (India’s) Mahatma Gandhi until you didn’t.”

So when did Gandhi lead any massacre of 1,200 Britons who lived in New Delhi or Bombay?

Jonathan Oswaks, 69, who was with Kessler at the scene, was disappointed that no hate-crime charges were filed, claiming that a pro-Arab supporter rubbed Kessler’s blood into a sign of hate against Israel. “We endured hate rhetoric. If this isn’t the definition of a hate crime, I don’t know what is,” he told a Los Angeles Times reporter.

He recounted that a demonstrator from the Free Palestine group came from behind him with a megaphone and shouted close to his ear. “I turned around and I said, ‘Get that f— thing out of my ear.” He added that he later spotted the same protester, now identified as Alnaji, striking someone with his megaphone on the opposite corner, where Kessler was carrying an Israeli flag.

Witnesses said that Alnaji “tried to bait” Kessler” before their altercation and with the megaphone shouted directly into the faces of pro-Israel protesters, according to Fox News digital. A witness who asked not to be named said Alnaji wanted “to maybe not kill or hurt (Kessler), but to get in his face and get into an altercation.”

If that is the case, that he provoked Kessler, then this had to be a hate crime. Perhaps Nasarenko can explain why these links would fall short of constituting a hate crime.

It would have been no hate crime if a version from Alnaji’s attorney, Ron S. Bamieh, is true. “He (Kessler) was yelling and screaming at people and got in the face of many of the protesters,” Bamieh said, according to the Times. “He got in the face of my client, and he put his phone in the face of my client, and my client would push the phone away.”

Bamieh added that the evidence wiil show that Kessler accosted Alnaji. “Whether that justifies swatting his phone away or not, that is up to a jury to decide. But the difference between swatting something away – which is battery – and involuntary manslaughter is a big deal.”

His explanation also suggests self-defense, which would mean that Alnaji would have committed no crime at all.

After all my verbiage above, a confession is in order: I am vehemently opposed to prosecuting defendants for so-called hate crimes. We already have sufficient laws to respond to a person’s actions. If Alnaji is proved to have caused Kessler’s death, he will face consequences anyway.

A hate-crime charge could translate into extra punishment for what the suspect thinks, not what he does. It is useful for compiling statistics on offenses based on prejudice.

If hate crimes must be on the table, please do it right.

About Bruce Ticker

Bruce S. Ticker, who writes from Philadelphia, also blogs for The San Diego Jewish World and Smirking Chimp and previously for the suspended Philadelphia Jewish Voice. He was previously a reporter and copy editor for daily newspapers in eastern Pennsylvania.

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