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2016 Rewind: The stand at Standing Rock

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Voters navigate maze of new voting rules

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What happens when gay bashing is not a hate crime

Last April, police say, a Marshall University football player saw two men kissing on a West Virginia street, hopped out of the passenger seat of a car, shouted homophobic slurs and attacked the men, punching them in the face.

Those charges against Steward Butler may sound like a textbook hate crime case. But, a year later, the former running no longer faces charges of violating the men’s civil rights.

That’s partly because West Virginia, like 19 other states, does not have a hate crime law that protects people targeted specifically because of their sexual orientation, according to the Human Rights Campaign. And while the U.S. Justice Department is still weighing its options in the case, some observers say it may not fit the federal definition of a hate crime, if only for technical reasons.

In a decision this month, Cabell County Circuit Court Judge Paul Farrell said West Virginia civil rights law protects people based on sex, but not sexual orientation, and ruled to drop the hate crime charges against Butler in 60 days, giving prosecutors time to appeal. Many other states specifically mention sexual orientation in listing the categories that elevate violence or threats of violence to a hate crime. West Virginia lawmakers had plenty of chances to follow suit but didn’t, Farrell wrote.

The ruling leaves two options for West Virginia prosecutors: hope for a favorable upcoming appeal with the state Supreme Court, or — if they lose — lobby for changes to state law with a Legislature that typically hasn’t added LGBT protections.

“I don’t know whether there’s really been an incident to highlight it until now,” said Cabell County Prosecutor Sean “Corky” Hammers. “We now have an incident where two men were battered and their rights were violated, and I think that even if we don’t win at the Supreme Court, we definitely put the spotlight on the statute that says, ‘hey, it should be interpreted to cover sexual orientation.’”

Butler — who was kicked off the Marshall football team after the attack, and did not graduate, according to school spokeswoman Ginny Painter — pleaded not guilty to two counts of felony civil rights violations and two counts of misdemeanor battery in June 2015 over in the incident in Huntington, an industrial city along the Ohio River that’s home to the university.

If convicted of violating the state’s civil rights law, Butler would have faced up to 10 years in prison, but with those charges dropped, he faces a maximum of two years on the misdemeanor counts.

So far, no federal charges have been brought under the U.S. hate crime law.

“(Federal prosecutors) certainly have not come knocking on my door at all to say, ‘Hey can we take a look at this case?”” Hammers said. The case remains open, according to an email from the office of U.S. Justice Department spokeswoman Dena Iverson, but officials there declined to comment further.

The applicable federal law — called the Matthew Shepard and James Byrd Jr. Hate Crimes Prevention Act — makes it illegal to physically harm someone based on race, religion, national origin, gender or sexual orientation, among other characteristics.

Butler’s case could fall under that law, but establishing federal jurisdiction might be tricky, said Seth Marnin of the Anti-Defamation League, which advocates for a variety of civil rights.

The federal law requires that the crime “affected interstate or foreign commerce or occurred within federal special maritime and territorial jurisdiction.” So, some connection often has to be drawn across state lines — for instance, in a shooting, if a gun was manufactured in another state.

That’s more difficult when a crime is committed with someone’s fists, as in the West Virginia case, Marnin said.

But Indiana University law professor Jeannine Bell said the federal law was crafted for this exactly type of case: “federal action for crimes that wouldn’t be prosecutable at the state level.”

Hammers has announced plans to appeal the decision to drop the state hate crime charges, giving justices another look at the case. The state Supreme Court declined to answer a previous question by Farrell about whether sexual orientation was covered under the category of “sex” in the state law.

Hammers has argued that sexual orientation should be covered under the category of sex, questioning, for instance: If one of the two men had been a woman, would the attack have happened?

In that vein, the federal Equal Employment Opportunity Commission has interpreted existing sex discrimination provisions to protect lesbian, gay, bisexual and transgender applicants and employees against employment bias.

But Butler’s attorney, Raymond Nolan, said in an interview he’s confident the law is as the circuit court judge ruled. “Had the Legislature intended to include sexual orientation in the ‘hate crime’ statute, they would have done so,” he said.

The law, which passed in 1987 and hasn’t been amended, protects residents against violence or the threat of violence base on their “race, color, religion, ancestry, national origin, political affiliation or sex.” Attempts to add LGBT protections have had little success, whether under Democrats, or the more recently installed Republican legislative leadership.

Witness to Michael Brown shooting arrested

The man who was with Michael Brown when he was shot by a Ferguson police officer last summer was charged with misdemeanor resisting arrest during a new confrontation with police.

St. Louis city prosecutors charged Dorian Johnson, 23, with resisting arrest or interfering with a lawful stop or detention, on May 7, one day after St. Louis police arrested him with two other people, including his younger brother, Demonte Johnson. The criminal complaint alleges Johnson tried to hinder his brother’s arrest “by using or threatening the use of violence, physical force or physical interference.”

Each brother’s bond was set May 7 at $1,000 cash-only.

Dorian Johnson was a prominent witness of the shooting death in August of Brown, a black, unarmed 18-year-old who was killed by white Ferguson officer Darren Wilson during a confrontation in a street. Brown’s death led to at times violent protests in Ferguson and other U.S. cities, spawning a national “Black Lives Matter” movement seeking changes in how police deal with minorities.

A St. Louis County grand jury and the U.S. Justice Department declined to charge Wilson, who later resigned. But the Justice Department later released a scathing report that cited racial bias and racial profiling in Ferguson policing and in a profit-driven municipal court system that frequently targeted blacks.

Dorian Johnson’s arrest came exactly a week after he sued Ferguson, Wilson and the city’s former police chief.

One of Johnson’s attorneys, James Williams, declined to comment on the May 7 charge, saying he didn’t yet have any details.

“Dorian has this target on his back,” his grandmother, Brenda Johnson, told KMOV.com.

She said that she thinks police have been on the lookout for Dorian because he spoke out about what happened the day Mike Brown was shot.

Dorian Johnson claims he was just trying to help his brothers during the May 6 skirmish with police.

“I have injuries on my body, Dorian Johnson told KMOV.com. “I have injuries and scars from 9when the officer) slammed my face down on the concrete. (They) hit me on the cruiser, put me in the cruiser, raised up all the windows, and put it on high heat.”

In a probable-cause statement attached to the criminal complaint against Dorian Johnson, a law enforcer, identified only as “E.B.,” wrote police encountered Johnson while fielding a report of a possible disturbance involving a group possibly armed with guns or knives.

E.B. wrote that he noticed a person identified only as “O.M.” with a bulging waistband that he suspected might be a concealed gun and moved in to investigate. The officer wrote that Demonte Johnson then grabbed him by an arm and told him to release the man, saying that the officer “was not going to take O.M. to jail.”

As another officer grabbed Demonte, Johnson to pull him away, Dorian Johnson “ran toward” that officer and demanded that his brother be released, the probable-cause statement read.

“Dorian Johnson further stated that the police could not arrest any of them,” the affidavit continued, adding that Dorian Johnson “then struggled with me and tried to pry himself away from me.”

“I had to physically struggle with Dorian Johnson until I was able take him to the ground and get handcuffs on him,” the affidavit read.

Demonte Johnson, 21, was charged May 7 with resisting arrest and with a misdemeanor account of assault on a law enforcement officer, according to online court records. The records did not say whether he had an attorney who could comment on the charges.

California school district settles complaint brought by transgender student

A Southern California school district has settled a government claim that it discriminated against a transgender student who said she was forbidden to wear makeup, was harassed by other children and was encouraged to change schools.

The Downey Unified School District agreed to give the teenager access to the same facilities and activities as other female students, including athletic tryouts and district-sponsored overnight events, according to a statement from the U.S. Department of Education’s Office for Civil Rights.

Without acknowledging any violations of federal law, the district southeast of Los Angeles also agreed to ensure that the middle-school student wouldn’t be disciplined “for acting or appearing in a manner that does not conform to stereotypical notions of masculinity or femininity,” according to an agreement reached Oct. 8.

The district will also review and revise policies, if necessary, to ensure that transgender students have equal access to school activities; will train administrators about gender-based harassment and will add instruction on gender identity and discrimination to its curriculum, the agreement said.

The district worked with the federal agency to craft the agreement, Superintendent John Garcia said.

“It’s important not to lose sight that we’re talking about … a child,” Garcia said. “And as a school district, we want to make sure that all of our children feel safe and comfortable and supported.”

The student filed a complaint in 2011 when she was in elementary school. She was diagnosed with gender dysphoria before starting kindergarten but continued to use a male name and use the boys’ bathroom until she reached the fifth grade, according to a resolution letter sent by the education department’s Office for Civil Rights to the district superintendent.

That school year, staff confiscated her makeup and made her write an apology letter “for making male students uncomfortable” by wearing it, the letter said.

The student also said she was discouraged from discussing her gender identity with her friends, and that she was frequently teased by other students on the bus, who called her “gay,” “fag,” “bitch” and “whore,” according to the letter.

Garcia said the Downey school district already changed its policies last year to comply with a new California law – the nation’s first – requiring public schools to let transgender students choose which restrooms they use and which school teams they join based on their gender identity instead of their chromosomes.

Man sentenced for hate crime against gay gas station patron

A man who admitted to assaulting another man at a Detroit gas station because he believed the victim gay has been sentenced to 18 months in prison.

The U.S. Justice Department says Everett Avery, 26, of Detroit was sentenced in U.S. District Court in Detroit. He earlier pleaded guilty to a hate crime.

Authorities say Avery punched Justin Alesna in the face in March 2011. Alesna says he was in line to buy cigarettes when a man told him he was standing too close and directed anti-gay slurs toward him.

Alesna says he told the man he was gay and was punched twice. One of the blows fractured his eye socket. Alesna later posted an Web video showing his facial injuries from the attack.

“Hate-fueled incidents like this one have no place in a civilized society,” said Thomas E. Perez, assistant Attorney General for the Civil Rights Division. “The Justice Department is committed to using all the tools in our law enforcement arsenal, including the Matthew Shepard and James Byrd Jr. Hate Crimes Prevention Act, to prosecute acts motivated by hate.”

The case was investigated by the FBI.

Feds pledge to pursue hate crimes after acquittal

The federal hate crimes trial of two men in Kentucky accused of beating another man because he was gay quickly grew murky, with tales of substance abuse, drug deals gone bad and same-sex trysts.

The result was an acquittal – an embarrassing blow for prosecutors trying their first case under a hate crimes law expanded in 2009 to apply to crimes motivated by, among other things, a victim’s actual or perceived sexual orientation. The two men, 20-year-old Anthony Ray Jenkins and his cousin, 37-year-old David Jason Jenkins, were convicted in federal court in London, Ky., of conspiracy and kidnapping, however.

Prosecutors pledged to continue to investigate future hate crimes allegations. However, attorneys for the two men said the case was fundamentally about drugs, not hate. And one defense attorney not involved with the case said prosecutors will want to more closely examine the facts the next time the hate crimes provision is applied.

“They chose a poor set of facts. That happens sometimes,” Stetson Law School professor Charles Rose told The Associated Press. “It’s not misconduct. It’s just not smart lawyering.”

Testimony in the case portrayed the Jenkins cousins as hostile to gays, with the victim, 29-year-old Kevin Pennington, and two others describing how the men shouted obscenities and anti-gay slurs during the attack on a mountain road in Kingdom Come State Park in the Appalachian region of Kentucky.

But witnesses also testified about Pennington having a sexual relationship with another member of the Jenkins family and David Jason Jenkins expressing sexual interest in Pennington. And two women who pleaded guilty to lesser charges in the case acknowledged having sexual relationships with other women.

Defense attorneys admitted their clients took part in a brawl on the side of the mountain, but they said it resulted from a drug deal gone sour between the two men and Pennington, an admitted part-time drug dealer and user.

Jurors were told to consider whether anti-gay bias was the substantial factor in the attack – not the sole factor and not just one of many.

Kentucky is one of 45 states, along with the District of Columbia, that have laws criminalizing bias-motivated violence or intimidation. Arkansas, Georgia, Indiana, South Carolina, and Wyoming, do not have such laws. Georgia’s was struck down by the state’s supreme court in 2004.

U.S. Attorney Kerry Harvey, whose office handled the case, declined to speculate on whether the testimony about drug use and allegations of homosexual interests and relationships swayed the jury. Instead, Harvey said he was pleased the case ended in a conviction. The acquittals on the hate crimes charges won’t deter the office from pursuing such cases in the future, Harvey said.

“When we find evidence that warrants bringing any particular charge … we will follow that evidence,” Harvey said.

Willis Coffey, who represented Anthony Jenkins, said the evidence led investigators to the wrong conclusion.

“I think this was clear,” Coffey said after the trial. “I think the jury’s pretty clear about this not it _ it was not a hate crime.”

Rose said that defense attorneys acknowledging the fight and drug use gave them credibility with the jury, but also forced them to essentially admit some kind of crime took place, even if it wasn’t a hate crime.

“In that regard, the hate crime law functioned properly” in that it still helped attorneys win a conviction, Rose said. “This is a classic example of the system working the right way to bring justice in line with reality.”

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Mixed verdict from Kentucky jury in U.S. hate-crime case

UPDATED: The first U.S. prosecution under a new federal law against anti-gay violence ended with a Kentucky jury acquitting two cousins of hate-crime charges while finding them guilty of kidnapping in a 2011 attack on a gay man.

Prosecutors had argued that Anthony Ray Jenkins and his cousin David Jason Jenkins attacked 29-year-old Kevin Pennington at a rural state park because of Pennington’s sexual orientation, violating a hate crime law that was expanded in 2009 to cover assaults motivated by bias against gays, lesbians and transgender people.

It was not clear why jurors late on Oct. 24 rejected that argument.

Responding this evening the to result, Brandon Combs of the Kentucky Equality Federation said, “The acquittal of these individuals from the hate crime aspect of this case is truly a disappointment. This is a failing by prosecutors to make their case beyond a reasonable doubt, but this should serve as a rallying point around which the LGBTI community can gather and we thank the U.S. Department of Justice for responding to our request to prosecute this case. If there is any positive to take away from this ruling, it is that Mr. Pennington did receive some measure of justice, albeit not what he deserved.”

Anthony Jenkins’ attorney, Willis Coffey, said after the trial that jurors didn’t find Pennington’s account of the events credible.

“You’d like to have an acquittal on all counts, but he’s happy he was found not guilty of a hate crime,” Coffey said of his client. “So am I.”

Government attorneys have said this is the first U.S. prosecution charging a violation of the sexual orientation section of the Matthew Shepard-James Byrd Jr. Hate Crimes Prevention Act passed in 2009.

Pennington held hands with family members and let out an audible sigh when the not-guilty verdicts on the hate-crimes charges were announced. He left the courtroom without talking to news reporters.

Jimmy Jenkins, an uncle who raised Anthony Jenkins, dropped his head into his hands and cried when the cousins were found guilty on the charges of kidnapping and conspiracy to a kidnapping.

They are scheduled to be sentenced on Feb. 21.

Throughout the trial, the defense argued that any dispute between the Jenkinses and Pennington was over a drug deal gone sour.

Andrew Stephens, the attorney for David Jason Jenkins, argued that his client had at least 21 beers on the day of the assault and was too drunk to have formulated a plan for such an attack.

“These people who were stoned and drunk were going to form a plan? When this event took place, they were all about drugs,” Stephens said.

Coffee argued that Anthony Jenkins has an IQ of roughly 75 and was merely a follower who does not hate gay people. He called the allegations “the nearest thing to nothing I have ever seen.”

Coffey said Pennington pushed the idea that he was attacked for being gay to serve his own political agenda. Coffey invoked the name of President Barack Obama, who is unpopular in Kentucky and lost badly in the state four years ago.

“If the government and President Obama want to bow to the special-interest groups, that’s their business, but they picked the wrong case,” Coffey said.

U.S. Justice Department civil rights attorney AeJean Cha told jurors that the Jenkins cousins and two women planned to kidnap, beat and kill Pennington because of his sexual orientation.

“This is not about drugs, this is about the fact that Kevin is gay,” Cha said.

Hawkins also played a tape of Pennington’s 911 call after the attack. On the tape, Pennington’s voice can be heard cracking as he tries to describe the attack and relay information.

“They’re trying to kill me,” Pennington told the 911 operator on April 4, 2011. “I didn’t know what they were going to do. I think it’s because I’m gay.”