Lipp v. State

Lipp v. State, No. 181, September Term, 2019, Opinion by Graeff, J. CRIMINAL LAW – HATE CRIMES – DEFACEMENT OF PROPERTY Md. Code (2012 Repl. Vol., Supp. 2019) § 10-305 of the Criminal Law Article (“CR”) prohibits the defacement, damage, or destruction of property when “there is evidence that exhibits animosity against a person or group, because of the race, color, religious beliefs, sexual orientation, gender, disability, or national origin of that person or group[.]” Appellant challenged his conviction under CR § 10-305 on the grounds that it violated his First Amendment right to freedom of speech. The plain language of the statute, however, makes clear that a conviction may not be based solely on speech. Rather, the statute permissibly regulates harmful conduct, not the content of the speech.

Accordingly, CR § 10-305 does not violate the First Amendment right to freedom of speech. Appellant may have had a First Amendment right to spray paint on his own property the offensive words and symbols used here. Once he combined that action with a criminal act, however, in this case defacing property of another, his criminal activity was not protected by the First Amendment. Circuit Court for Howard County Case No. C-13-CR-18-000211 REPORTED IN THE COURT OF SPECIAL APPEALS OF MARYLAND No. 181 September Term, 2019 ______________________________________ MATTHEW J. LIPP v. STATE OF MARYLAND ______________________________________ Graeff, Nazarian, Harrell, Glenn T., Jr. (Senior Judge, Specially Assigned), JJ. ______________________________________ Opinion by Graeff, J. ______________________________________ Filed: April 30, 2020 Pursuant to Maryland Uniform Electronic Legal Materials Act (§§ 10-1601 et seq. of the State Government Article) this document is authentic.

Suzanne Johnson 2020-04-30 13:09-04:00 Suzanne C. Johnson, Clerk Matthew Lipp, appellant, was convicted in the Circuit Court for Howard County of defacing property where there is evidence exhibiting animosity against groups because of race, color, religious beliefs, or sexual orientation, in violation of Md. Code (2012 Repl. Vol.), § 10-305 of the Criminal Law Article (“CR”). Appellant contends that the circuit court erred in denying his motion to dismiss, arguing that CR § 10-305 is unconstitutional because it violates the First Amendment right of freedom of speech. For the reasons set forth below, we disagree, and therefore, we shall affirm the judgment of the circuit court.

FACTUAL AND PROCEDURAL BACKGROUND1 At approximately 11:30 p.m. on May 23, 2018, appellant and three other individuals went to Glenelg High School and spray-painted graffiti on the school building, sidewalks, and trash receptacles. The graffiti included swastikas, anti-LGBTQ phrases, and other offensive writings, including “KKK,” “n****rs,” and “fuck jews.” In addition, there was graffiti on a sidewalk that stated: “Burton is a n****r,” referring to the school principal, who is African-American. The suspects subsequently were identified as four students attending the school, including 18-year-old appellant. The students ultimately confessed to the incident.

On July 12, 2018, appellant was indicted on seven criminal charges: two counts of defacing real and personal property where there is evidence exhibiting animosity against groups because of their race, color, religious beliefs, or sexual orientation in violation of 1 The transcript of the plea proceeding was not included in the record. Accordingly, the facts, which are not in dispute, are taken from the parties’ briefs. CR § 10-305(2); one count of conspiracy to commit a violation of CR § 10-305(2); one count of malicious destruction of property over $1,000; one count of conspiracy to commit malicious destruction of property over $1,000; one count of school trespass and damage; and one count of conspiracy to commit school trespass and damage. On December 3, 2018, appellant filed a motion to dismiss the charges involving CR § 10-305(2), which provides that [a] person may not deface, damage, or destroy . . . the real or personal property connected to a building that is publicly or privately owned, leased, or used, including a . . . school . . . if there is evidence that exhibits animosity against a person or group, because of the race, color, religious beliefs, sexual orientation, gender, disability, or national origin of that person or group or because that person or group is homeless.

He argued that the statute violated the First Amendment because it impermissibly regulated protected speech, similar to the city ordinance struck down by the United States Supreme Court in R.A.V. v. City of St. Paul, 505 U.S. 377 (1992). On December 18, 2018, the circuit court held a hearing on appellant’s motion to dismiss.2 Appellant’s attorney argued that, pursuant to CR § 10-305, it was permissible to use graffiti and refer to someone as a thief, but if that person used an offensive epithet, that would be illegal. Therefore, counsel asserted that CR § 10-305 regulated content-based speech and was unconstitutional under R.A.V. Counsel distinguished Wisconsin v. Mitchell, 508 U.S. 476 (1993), noting that the Wisconsin statute provided for enhanced 2 An attorney for one of the other defendants charged in the incident also appeared at the motions hearing, but the cases were not otherwise consolidated. 2 penalties for a person who committed a violent crime with a particular motive, whereas CR § 10-305 criminalizes specific speech. The State argued that the court should deny the motion to dismiss, asserting that CR § 10-305 targets conduct, not speech.

It asserted that the statute “takes what is already criminal conduct,” i.e., defacement of property, and “merely adds a sentence enhancement.” As a result, the State argued that Mitchell is “directly on point to Maryland’s hate-crime statute.” The State also argued that it made no difference that CR § 10-305 is a separate criminal penalty, as opposed to a sentencing enhancement accompanying an existing criminal statute, stating that the General Assembly is permitted to establish penalties by either method. At the conclusion of the hearing, the court denied appellant’s motion to dismiss. It explained: I find that pursuant to the Supreme Court’s holding in Wisconsin v. Mitchell, 508-US-476, that the First Amendment does not protect biased-motivated speech when it is coupled with non-verbal conduct otherwise proscribed. In this particular case, malicious destruction of property, trespass on the school grounds, damaging school property.

The court found “that the Maryland hate-crime statute is essentially a sentence enhancement statute,” and it is constitutional under Mitchell and “Maryland’s Ayers case.” On February 6, 2019, appellant was convicted of one count of violating CR § 10- 305(2).3 The State nolle prossed the other charges. The court then sentenced appellant to 3 The State asserts in its brief that appellant was found guilty after entering a plea of not guilty pursuant to an agreed statement of facts. Appellant, in contrast, states that he “entered into a conditional guilty plea to one count preserving his right to appeal.” As 3 three years’ incarceration, all but 48 days suspended, to be served over 15 consecutive weekends, with supervised probation for three years, 250 hours of community service, and fines and court costs.4 This appeal followed. STANDARD OF REVIEW “[T]he standard of review of the grant or denial of a motion to dismiss is whether the trial court was legally correct.” Howard v. Crumlin, 239 Md. App. 515, 521 (2018) (quoting Blackstone v. Sharma, 461 Md. 87, 110 (2018)), cert. denied, 463 Md. 153 (2019).

Therefore, we review the dismissal of a motion to dismiss de novo. D.L. v. Sheppard Pratt Health Sys., Inc., 465 Md. 339, 350 (2019). DISCUSSION Appellant argues on appeal that the trial court erred in denying his motion to dismiss, asserting that CR § 10-305 is unconstitutional because it “penalizes a viewpoint,” and therefore, it violates the First Amendment right to freedom of speech. He contends indicated, the transcript of the plea proceeding was not included in the record, but regardless of the procedural posture, there is no dispute that appellant was convicted as stated. 4 On May 9, 2019, appellant filed a Motion for Modification requesting that the matter be held sub curia pending a requested hearing to reconsider the guilty finding and grant a probation before judgment.

On May 13, 2019, the circuit court issued an order stating: “ORDERED, that Defendant’s Motion for Modification of Sentence is held sub curia and shall be set for a hearing upon Defendant’s request.” No further action has been taken in this regard. 4 that “nonverbal expressive activity can be banned because of the action it entails, but not because of the ideas it expresses.” 5 The State contends that the circuit court properly denied appellant’s motion to dismiss because CR § 10-305 is constitutional. It asserts that, pursuant to “Supreme Court precedent, states may not punish pure expression, but they may [punish] criminal conduct that is motivated by bias.” It argues that CR § 10-305 does not violate the First Amendment because it targets conduct, not speech. I. Free Speech Rights and Hate Crime Statutes The First Amendment of the United States Constitution, applicable to the states through the Fourteenth Amendment, prohibits Congress from making any law “abridging the freedom of speech.” Virginia v. Black, 538 U.S. 343, 358 (2003). Content-based regulation of speech is presumptively invalid under the First Amendment.

R.A.V., 505 U.S. at 382 . And the First Amendment “affords protection to symbolic or expressive conduct as well as to actual speech.” Black, 538 U.S. at 358 . See Spence v. Washington, 418 U.S. 405, 409 (1974) (Flag-burning as a form of protest is protected speech under the First Amendment.). The right to freedom of speech, however, is “not absolute at all times and under all circumstances.” Chaplinsky v. New Hampshire, 315 U.S. 568, 571 (1942); Black, 538 U.S. at 359 . “The First Amendment permits ‘restrictions upon the content of speech in a few 5 Appellant bases his argument solely on the First Amendment.

He makes no claim based on Article 40 of the Maryland Declaration of Rights. 5 limited areas, which are “of such slight social value as a step to truth that any benefit that may be derived from them is clearly outweighed by the social interest in order and morality.”’” Black, 538 U.S. at 359–60 (quoting R.A.V., 505 U.S. at 382–83). Examples include obscenity, defamation, and “‘fighting words,’ i.e., ‘conduct that itself inflicts injury or tends to incite immediate violence.’” R.A.V., 505 U.S. at 380 (quoting In re Welfare of R.A.V., 464 N.W.2d 507, 510 (Minn. 1991)). “[T]he First Amendment also permits a State to ban a ‘true threat,’” i.e., a statement meant to “communicate a serious expression of an intent to commit an act of unlawful violence to a particular” person. Black, 538 U.S. at 359 . In assessing the constitutionality of CR § 10-305, the parties rely extensively on R.A.V and Mitchell.

In these cases, “the Supreme Court staked out the boundary between a state’s unconstitutional regulation of unpopular beliefs in the marketplace of ideas and the permissible regulation of conduct motivated by those beliefs.” People v. Rokicki, 718 N.E.2d 333 , 336–37 (Ill. App. Ct. 1999). We begin our analysis with a discussion of these cases. A. R.A.V. and Mitchell In R.A.V., 505 U.S. at 379 , a juvenile and several other teenagers burned a cross on the yard of an African-American family.

The defendant was convicted under St. Paul’s hate crime ordinance, which provided: 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 6 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. Id. at 380 (quoting St. Paul, Minn., Legis. Code § 292.02 (1990)). The Minnesota Supreme Court held that the ordinance did not violate the First Amendment.

Id. It found that the modifying phrase “arouses anger, alarm or resentment in others” limited the ordinance to “fighting words,” and therefore, it reached only expression “that the first amendment does not protect[.]” Id. at 380–81 (quoting In re Welfare of R.A.V., 464 N.W.2d at 510 ). The Supreme Court reversed, holding that, even if “all of the expression reached was proscribable under the ‘fighting words’ doctrine,” the ordinance was facially unconstitutional because it was a content-based and viewpoint-based regulation of speech. Id. at 381, 391.

The Court noted that the ordinance was not a prohibition “of fighting words that are directed at certain persons or groups (which would be facially valid if it met the requirements of the Equal Protection Clause),” but rather, the ordinance prohibited only fighting words containing “messages of ‘bias-motivated’ hatred and in particular, as applied to this case, messages ‘based on virulent notions of racial supremacy.’” Id. at 392 (quoting R.A.V., 464 N.W.2d at 508, 511 ). The Court explained: [T]he only interest distinctively served by the content limitation is that of displaying the city council’s special hostility towards the particular biases thus singled out. That is precisely what the First Amendment forbids. The politicians of St. Paul are entitled to express that hostility—but not through the means of imposing unique limitations upon speakers who (however benightedly) disagree.

Id. at 396 (footnote omitted). 7 One year later, in Mitchell, the Supreme Court addressed a First Amendment challenge to a Wisconsin statute that provided for an enhanced sentence if the defendant committed a crime and intentionally selected the person against whom the crime was committed or the property which was damaged “because of the race, religion, color, disability, sexual orientation, national origin or ancestry of that person or the owner or occupant of that property.” 508 U.S. at 479 , 480 n.1 (quoting Wis. Stat. § 939.645 (1989)). In that case, a group of African-American men and boys severely beat a young white boy based on his race. Id. at 479–80.

Mitchell was convicted of aggravated battery. Id. at 480 . This offense ordinarily had a maximum sentence of two years, but because Mitchell intentionally selected his victim because of the victim’s race, he received an enhanced sentence pursuant to § 939.645. Id.

The Supreme Court rejected Mitchell’s argument that, because the statute enhanced the maximum penalty for conduct motivated by a discriminatory motive or point of view, the statute violated the First Amendment by punishing the offender’s bigoted beliefs. Id. at 485, 490. It found no constitutional violation because the statute was “aimed at conduct unprotected by the First Amendment.” Id. at 487–88, 490. The Court noted that “a physical assault is not by any stretch of the imagination expressive conduct protected by the First Amendment.” Id. at 484.

Nor are “other types of potentially expressive activities that produce special harms distinct from their communicative impact” entitled to constitutional protection. Id. (quoting Roberts v. United States Jaycees, 468 U.S. 609, 628 (1984)). In reaching its conclusion that the enhanced punishment based on a defendant’s discriminatory motive for acting did not render the statute unconstitutional, the Court noted 8 that motive for committing an offense has long been an acceptable consideration during sentencing.

Id. at 485. Although “a defendant’s abstract belief, however obnoxious to most people, may not be taken into consideration by a sentencing judge[,]” the “Constitution does not erect a per se barrier to the admission of evidence concerning one’s beliefs and associations at sentencing simply because those beliefs and associations are protected by the First Amendment.” Id. at 485–86 (quoting Dawson v. Delaware, 503 U.S. 159, 165 (1992)). Moreover, the Court noted that “motive plays the same role under the Wisconsin statute as it does under federal and state antidiscrimination laws,” which prevents discrimination based on