Taking hate groups to court.

On a quiet evening in November 1988, Mulugeta Seraw, an Ethiopian graduate student, was being dropped off by two Ethiopian friends in Portland, Oregon. Three skinheads from a racist group, East Side White Pride, spotted them.

Wearing steel-toed boots and military jackets, the skinheads blocked the Ethiopians' path and ordered them to move. When they did not respond immediately, one skinhead took a baseball bat and smashed their car windows. Another skinhead then turned the baseball bat on Seraw. With repeated blows, the angry skinhead crushed Seraw's skull. Seraw was dead before the paramedics arrived on the scene.

Unfortunately, stories like this are not uncommon. Hate crimes have reached epidemic proportions. Hate has motivated more than 100 murders since 1990.(1) According to the Federal Bureau of Investigation, 7,684 incidents of hate crime took place in 1993 alone.2 And these figures do not come dose to measuring the true number of hate crimes in the United States. For every reported hate crime, as many as 9 others may go unreported.[3]

Hate crimes know no geographic boundaries. Once most often associated with violence in the South, these crimes have touched every region of the country in recent years. No group is immune. Once most often associated with violence against blacks by whites, hate crimes now also count Asian Americans, Hispanics, Jews, gays, lesbians, and whites among their victims.(4)

Hate crimes pose unique threats. The victims of these crimes are much more likely to endure severe physical and psychological harm than victims of other violent crimes.(5)

Compounding the problem, hate crimes have the potential to convulse an entire community. The Rodney King beating illustrates how one hate-motivated crime can quickly become a focal point for venting long-simmering grievances. The social strife that often accompanies these crimes can irreparably damage a community's cohesion.

What can attorneys do to reduce hate crimes? One step is to encourage local prosecutors and lawmakers to take all hate-motivated crimes seriously by prosecuting more of them and enacting tougher laws to discourage these acts. Another step is to pursue civil remedies for victims.

A hurdle facing most civil hate-crime suits is that the defendants are penniless. Hate crimes are typically committed by youths who are only marginally employed and have no resources of their own. Those with assets before the crime are likely to spend them on their defense at their criminal trials. As a result, the victim frequently has no defendant worth suing.(6)

Even if a defendant has resources, it is difficult for an individual lawsuit to make a dent in the rate of hate crimes committed each day. The typical reckless youths who commit these crimes are not going to be deterred by the threat of liability even if they happen to hear about a successful civil lawsuit against someone like themselves.

The key to finding a defendant who can both pay the debts on a judgment and have an impact on hate crimes overall often lies in locating those whose behind-the-scenes actions might render them vicariously liable for the perpetrator's actions. Those people are often the leaders of hate groups.

Organized hate groups commit 15 percent of all hate crimes. They also influence many more people to follow their violent example.(7) Racist skinheads, for instance, often depend on hate groups for their slogans and leadership. As hate-crime experts Jack Levin and Jack McDevitt have noted,

There may be thousands of alienated

youngsters looking for a role model

who will encourage them to express

their profound resentment. Such impressionable

youths may not actually

join some hate group. They may not

be willing to shave their heads and don

the uniforms of skinheads, but they are

nonetheless inspired by the presence

of such groups and intrigued by the

use of their symbols of power.(8)

In Mulugeta Seraw's case, the youths who killed him belonged to a local racist skinhead group, East Side White Pride. One of them, David Mazzella, actually belonged to a much larger hate organization, the White Aryan Resistance (WAR). Its leader, Tom Metzger, and his son John, head of WAR Youth, recruited Mazzella in California when he was only 16. They initiated him into the world of racist violence and trained him to organize skinheads to commit racist attacks. To that end, they sent him to Portland and introduced him to East Side White Pride, where he spurred the group on to commit the brutal assaults that culminated in Seraw's murder.

Focusing on the link between Mazzella and the Metzgers, the Southern Poverty Law Center successfully brought a civil damage suit on behalf of Seraw's family against the Portland skinheads, Tom and John Metzger, and WAR.(9) Lawyers from the Anti-Defamation League worked with us.

Our goal in the Portland case and similar lawsuits has been to hold the leaders of hate groups responsible for the violent actions of their members. First, we aim to bankrupt the organizations or individuals responsible for hate crimes. Second, we seek to separate the foot soldiers from the leaders, whose combined charisma and intelligence make them less replaceable. Through these means, we hope to not only put the groups themselves out of business but also stop their leaders from encouraging so many youths to perpetrate hate violence.

The Seraw case presented a complicated factual picture. The Oregon defendants were like so many other disenchanted, violent youths one reads about in newspapers every day. We could easily link them to the crime, but they were penniless and replaceable in the world of bias violence. The California defendants, on the other hand, were 1,500 miles away when the crime occurred and did not even know it was happening. Still, their actions and guidance led to Seraw's death.

As the Seraw case demonstrates, hate groups can spawn violence even when they do not directly participate in the crimes. This fact suggests that we, as lawyers, must take aim at hate groups. In addition to helping to combat the 15 percent of hate crimes for which these groups are directly responsible, these suits have an effect on the remaining 85 percent by eliminating the poisonous impact hate groups have on the rest of society.

Moreover, the groups and their leaders are much more likely to have resources than the youths whose actions they direct. Successful civil suits against hate groups and their leaders also provide victims a remedy they would otherwise not have.

Before the Seraw case, the Southern Poverty Law Center had taken hate groups to court on many occasions:

* In 1981, we enjoined the Ku Klux Klan from harassing and intimidating Japanese fishermen in the exercise of their legal rights to fish in Galveston Bay, Texas.10

* In 1987, we won a substantial verdict for the mother of a black youth lynched by the Klan.(11)

* In 1988, the center secured a criminal contempt conviction against the Klan for violating a consent decree that was designed to protect black people in North Carolina.(12)

* In 1989, we won a large verdict against two Klan groups, several Klan leaders, and numerous Klan members for a violent assault against our clients during their peaceful civil rights march in all-white Forsyth County, Georgia.(13)

* In 1994, we obtained a sizable default judgment for a mother whose son was killed by a 'reverend" of a white supremacist group, the Church of the Creator, that we intend to use to collect "church" assets held by other neo-Nazi leaders.(14)

Civil Remedies

If a victim wants to bring a civil action, several sources of law may afford a remedy. Federal law provides civil remedies for discriminatory interferences with federally protected rights.(15) Thirty-five states have enacted their own hate-crime statutes.(16) Twenty-two of these statutes provide special civil remedies for victim.(17) Some of the statutes make attorney fees or treble damages available.18 Remedies like assault and battery and wrongful death actions also exist in every state.

The trend toward enacting hate-crime statutes has been important in enabling communities to express their opposition to these crimes. The laws have also led police departments to take these crimes more seriously. But the Southern Poverty Law Center has not relied on the state statutes for two reasons. First, some of these have yet to be tested. Second, we believe that other theories can work as effectively. Although the leaders of hate groups often have assets in their possession, the damages we seek in these cases would bankrupt the groups 10 times over. Under these circumstances, trebling the damage award and collecting attorney fees would serve little purpose.

In our suit against the WAR leaders for Mulugeta Seraw's death, we used Oregon's wrongful death statute in conjunction with traditional principles of vicarious liability: aiding and abetting and civil conspiracy. Most often associated with criminal law, these theories have long been used to attribute fault to people who did not directly cause the victim's harm.

These principles underlie many common law tort claims. Civil conspiracy, for example, can make both drivers involved in a high-speed auto chase liable to someone injured in a collision with just one of the can.(19) Similarly, an aiding and abetting theory can render people who furnish a minor with alcohol civilly liable for injuries caused by the minor's drunk driving.(20) Applied in the hate-crimes context, the aiding and abetting and civil conspiracy theories can each give victims a solid foundation for establishing vicarious liability.

Aiding and Abetting

The aiding and abetting theory assigns liability to defendants who did not carry out the racist attack but provided "substantial assistance or encouragement" to those who did.(21) This principle allows the law to catch defendants whose indirect involvement might otherwise allow them to escape unpunished and remain free to promote future hate crimes. The theory works well in practice because it fits the facts of many hate crimes.

The Restatement (Second) of Torts illustrates aiding and abetting with the classic example of incitement.(22) A encourages B to throw rocks, while throwing none himself. When one of the rocks strikes C, a bystander, A becomes liable to C.(23) This scenario depicts incitement that occurs immediately before a violent act. Although the example fits the facts of some hate crimes, it is not analogous to cases like our Portland lawsuit because the California defendants did not urge the Portland skinheads to kill Seraw at the time or place of the killing.

Another example from the restatement, however, describes an additional category of potentially liable defendants. When a police officer "advises other policemen to use illegal methods of coercion upon B," the officer is liable to B "for batteries committed in accordance with the advice."(24)

This hypothetical assumes no close temporal link between the advice and the battery. Instead, it rests on the close relationship between the speaker and the actor, both of whom are police officers.

When the speaker occupies a higher position than the actor, the argument for liability becomes even stronger because the speaker knows that the actor will probably act on the speaker's advice. When an organized crime boss orders one of his henchmen to kill someone, for example, the boss becomes vicariously liable for the subordinate's acts. The fact that the henchman waited a month to execute the killing does not negate the boss's liability for the murder. Although that temporal lapse would be fatal to an incitement claim, it has no bearing on other aiding and abetting theories.

Despite the fact that the Metzgers were in California when Seraw was murdered, two elements helped make them legally accountable. First, they had a pre-existing relationship with the perpetrators. They had known Mazzella for years and trained him to lead others in committing racist violence. They also wrote a letter to East Side White Pride in which they offered to work with group members and introduce them to Mazzella.

Second, the Metzgers sat in positions of authority over the Portland skinheads, through the Metzgers' leadership of WAR and WAR Youth. Like the tic between the crime boss and the henchman, the relationship between the Portland and California defendants pointed to the significance of the Metzgers' role in causing the murder.

As the Metzger case illustrates, the aiding and abetting theory fits the facts of many hate crimes. It depicts two or more independent actors, at least one of whom encouraged the other(s) to act. A tremendous body of law on the aiding and abetting theory in civil suits allows lawyers to invoke the theory with relative case.

Elements of proof. To prove a claim, lawyers must establish several elements. The defendant must have provided the actor with substantial assistance or encouragement with the intention that the actor commit hate-motivated violence. The encouragement must have been a substantial factor in causing the violent conduct. The crime must also have been a foreseeable result of the assistance. Cases involving an agent, such as Mazzella in the Portland case, require additional proof that the defendant authorized the agent to provide the rendered assistance.

Civil Conspiracy

Victims can also use a civil conspiracy theory to assign liability to all those responsible for bias crimes.(25) When the relationship between two or more people is close enough, one can infer that a conspiracy exists. Two people, for example, who join in planning and carrying out a cross-burning in front of an African American family's home have presumably conspired to burn the cross.

Instead of invoking the aiding and abetting assumption of two independent actors, civil conspiracy envisions an agreement between two or more people. That agreement, rather than the help one gives the other, forms the basis for liability.(26) A meeting of the minds occurs, transforming the acts of one defendant into the acts of the other(s).

Some cases can be viewed as both conspiracy cases and aiding and abetting cases. For example, we presented both theories in the Portland trial. To prove the conspiracy claim, we stressed the direct ties between the Metzgers and East Side White Pride during the trial. Before Mazzella, the WAR export, arrived in Portland, John Metzger sent a letter to the skinhead group introducing Mazzella and offering to work with the group. After Seraw's killing, the skinhead who wielded the bat called Tom Metzger from jail. Facts such as these helped to establish the close link between the Metzgers and the Portland skinheads that ultimately led the jury to find that a civil conspiracy existed.

As every criminal lawyer knows, conspiracy law is broad. The conspirators need not know the identity or even the existence of all other conspirators. A defendant need not have been involved throughout the conspiracy, nor know the details of the illegal plan. Defendants may be held liable without having planned or known about the specific injurious action.

As a practical matter, an attorney can prove civil conspiracy by demonstrating that the defendants contemplated violence from the outset and that the violent incident was a foreseeable result of the defendants' plan.

Elements o proof. The plaintiff must prove several elements. The defendants must have agreed on a course of action. The primary purpose of that agreement must have been to promote incidents of hate violence. This violence must also have furthered the agreed-on course of action, and it must have been illegal or independently tortious.

First Amendment Issues

Although hate mongers are no friends to civil rights, there is one right they all know: the right to freedom of speech under the First Amendment. Klan groups have often filed lawsuits to protect their right to picket and march. They can be expected to raise a First Amendment challenge to the claim in any lawsuit that seeks to hold the groups or leaders liable for their members' actions.

Of course, the Constitution offers widespread freedom for people to say what they want. It has protected the National Association for the Advacement of Colored People's (NAACP) speech during an economic boycott that erupted in violence,(27) and it ought to protect neo-Nazi groups' speech as well. In the anti-abortion movement, people who advocate the killing of doctors who perform abortions receive First Amendment protection to speak their views.

But preparing organized groups for violence is quite different from delivering a speech at a public gathering. The Supreme Court decision in Brandenburg v. Ohio explicitly protected the abstract advocacy of violence.(28) But in Noto v. United States, the Court explained that preparing a group for violence does not come within the protection of the First Amendment.(29) Later Court decisions, including Brandenburg, have cited the Noto rule with approval.(30) Thus, someone who secretly makes violent plans with loyal comrades and then carries those plans out leaves the First Amendment's protection far behind.

In an aiding and abetting claim, the question becomes whether the substantial help given the perpetrator is more similar to preparations for violence than to abstract advocacy. Training people to commit racist violence can involve physical demonstrations or even the use of words alone. Trainers need not know what crimes will be committed to be liable for them, but only that their efforts are preparing foot soldiers to commit violence.(31)

In the case of civil conspiracy claims, the First Amendment is not really an issue. Under conspiracy law, the act of one defendant is the act of all defendants. Once a civil conspiracy to commit the act has been proven, nothing in the First Amendment blocks imposing liability. The critical factor here lies simply in establishing that the conspiracy existed, a showing made by proving an agreement to commit hate violence.

Neither aiding and abetting nor civil conspiracy claims conflict with the First Amendment. The amendment clearly anticipates that defendants' words can be used against them to establish their liability. Holding people's words against them is common in our legal system.

The Supreme Court has always recognized that the fact that a crime was committed by words alone does not immunize it from being unlawful. No one, for example, seriously questions whether the state can prosecute someone for price fixing based on words alone. Similarly, the Court in NAACP v Claiborne Hardware Co. made clear that the speeches of an NAACP leader could be used as evidence that he instructed others to commit violence.(32)

Thus, the First Amendment does not present significant barriers to lawsuits that claim that hate groups' leaders are vicariously liable for hate violence. People have a right to hate in our country, but not a right to lead others to hurt.

At Trial

Trying cases against people accused of committing hate crimes poses unique obstacles. Extraordinary pre-trial preparation is required because discovery has only limited value. Terrorist groups do not keep records of crimes they have committed. Interrogatories will not work because defendants will not admit to perpetrating past attacks. The value of discovery is often limited to uncovering information in the hands of third parties, such as phone records that can show contacts between actors and leaders. Lawyers can also us depositions to allow defendants to paint themselves into a comer.

To compensate for the weaknesses of discovery, we have had to turn to alternative sources of information. We perform our own detective work. We also try to cultivate ties to insiders who want to come clean and do something to make up for their past racist acts. In the Portland case, Mazzella cooperated with us and testified against the defendants.

The trial itself demands great attention to detail. Although there are often many state and common law causes of action available, we winnow down the number of claims to simplify issues for jurors. We also try to give jurors a sense of the importance of the case for both the victim and society.

The Metzger case demonstrates that theories of vicarious liability, like aiding and abetting and civil conspiracy, can work successfully in the context of hate-crime litigation. Using them, we can fix blame and give the victim a greater recovery-financially and emotionally. The Portland jury found all the defendants liable on all counts and awarded Seraw's family substantial damages.

Winning a judgment against hate mongers is often only the first step in putting hate groups out of business. Unlike a corporation, neo-Nazi organizations are not in the habit of paying their legal debts to their victims. They can be expected to hide their property. Painstaking follow-up work is usually required to identify and seize a defendant's assets.

Lawyers can learn a great deal about a group's assets by collecting white supremacist literature and monitoring the group's activities and public statements. We once located additional assets by tracing a defendant's bank accounts through third-party contributions. Although difficult, enforcing judgments against hate groups helps to compensate current victims and prevent these groups from finding new Mulugeta Seraws to harm.

Lawyers cannot literally stop hate violence before it occurs. But we can financially burden both the leaders and foot soldiers who provoke racist confrontations. In so doing, we can give victims a measure of recovery and deter the leaders who incite hate-motivated violence from continuing down that deadly, racist path.

Notes

(1) Klanwatch Report: Violent Hate Crime Remains at Record Levels Nationwide, KLANWATCH INTELLIGENCE REP. (Southern Poverty Law Center), Feb. 1994, at 1. (2) David E. Rovella, Attack on Hate Crimes Is Enhanced, NAT'L L.J., Aug. 29,1994, at Al A19. (3) See Brian Levin, Bias Crimes: A Theoretical Practical Overview, 4 STAN. L. & POL'Y REV. 165, 166 n.13 (1992-93) (noting that 70 to 90 percent of hate crimes against gays go unreported). The Hate Crimes Statistics Act of 1990 requires the FBI to keep statistics on hate crimes over a five-year period. But failure of law enforcement agencies to collect data has hampered efforts. Participation up in FBI's 1993 Hate Crime Report, KLANWATCH INTELLIGENCE REP. Southern Poverty Law Center), Aug. 1994, at 16. (4) Angelo N. Ancheta, Fighting Hate Violence, TRIAL, July 1993, at 16. (5) Levin, supra note 3, at 166-67. (6) Although the youths who commit hate crimes are themselves penniless, some states allow victims to recover damages from parents. California makes a parent liable for the first $10,000 in damage. See CAL. CIV. CODE [subsections]1714.1, 1714.3 (West 1985 & Supp. 1994). (7) JACK LEVIN & JACK MCDEVITT, HATE CRIMES: THE RISING TIDE OF BIGOTRY AND BLOODSHED 104 (1993). (8) Id. (9) Berhanu v. Metzger, No. A 8911-07007 (Or., Multnomah County Cir. Ct. Oct. 25, 1990), aff'd, 850 P.2d 373 (Or. Ct. App. , review denied, 865 P.2d 1296 (Or. 1993), cert. denied, 114 S. Ct. 2100 (1994). (10) Vietnamese Fishermen's Ass'n v. Knights of the Ku Klux Klan, 518 F. Supp. 993 (S.D. Tex. 1981) and 543 F. Supp. 198 (S.D. Tex. 1982). Donald v. United Klans of Am., Inc., No. 84-0725-CS (S.D. Ala. filed June 14, 1984). (12) Person v. Miller, 854 F.2d 656 (4th Cir. 1988) cert. denied, 489 U.S. 101 1 (1989). (13) McKinney v. Southern White Knights, No. 89-8092, (11th Cir. Dec. 12,1989), aff'd per curiam sub nom. Williams v. Southern White Knights, 890 F.2d 1166 (11th Cir.), reh'g denied, 893 F.2d 346 (11th Cir. 1989) (en banc), cert. denied, 495 U.S. 957 (1990). (14) Mansfield v. Church of the Creator, Inc., No. 94-345-CA (Fla., Escambia County Cir. Ct. filed Mar. 7, 1994). (15) See 42 U.S.C. [subsection]1982 (1988) (property rights); 42 U.S.C. [subsection]3613 (1988) (housing rights). (16) ANTI-DEFAMATION LEAGUE, HATE CRIMES LAWS: A COMPREHENSIVE GUIDE 7 (1994). (17) Id. at 8-10, 36-37. (18) See LU-IN WANG, HATE CRIMES LAW 14-9 n.11, 14-10 (1993); Rosalind Resnick, Damages Sought for Hate Crime, NAT'L L.J., July 8, 1991, at 7 (discussing Florida's statute providing treble damages and attorney fees). (19) RESTATEMENT (SECOND) OF TORTS [subsection]876(a), cmt. a, illus. 2 (1979). 20 See Fassett v. Delta Kappa Epsilon, 807 F.2d 1150, 1162-64 (3d Cir. 1986), cert. denied, 481 U.S. 1070 (1987). (21) See RESTATEMENT [subsection]876(b). (22) Id. cmt. b, illus. 4. (23 Id. (24) Id. cmt. b, illus. 5. (25) Id. [subsection]876(a). (26) See Halberstam v. Welch, 705 F.2d 472, 478 (D.C. Cir. 1983). (27) See NAACP v. Claiborne Hardware Co., 458 U.S. 886, reh'g denied, 459 U.S. 898 (1982). (28) 395 U.S. 444,449 (1969). (29) 367 U.S. 290, 298 (1961). (30) 395 U.S. 444,447-48. (31) See Kent Greenawalt, Speech and Crime, 1980 AM. B. FOUND. RES. J. 645, 747. (32) 458 U.S. 886,927.

Morris Dees is cofounder and chief trial counsel of the Southern Poverty Law Center in Montgomery, Alabama. Ellen Bowden is a law center fellow.