The D.C. Court of Appeals on Aug. 6 issued a ruling establishing that the city’s Bias-Related Crime Act of 1990 applies to any criminal act, including hate-related threats, even though the statute doesn’t explicitly mention threats in its definition of a hate crime.
The 14-page ruling by a three-judge panel upholds an Oct. 1, 2013 D.C. Superior Court conviction of Adams Morgan shop owner Girma Aboye for making bias-related threats to do bodily harm to a gay male couple.
Police and prosecutors charged that Aboye, 53, confronted Zack Rosen and his then fiancé Michael Eichler while the two were sitting at a sidewalk table at Chief Ike’s Mambo Room restaurant in Adams Morgan on March 11, 2013.
Court records state that Aboye owned a store on the 1700 block of Columbia Road, N.W., located next door to Chief Ike’s Mambo Room and was standing outside his store talking to another person when the incident began.
The appeals court ruling quotes from testimony at Aboye’s trial in which Rosen told how he and Eichler overheard Aboye talking about them with the other person and saying, “Look at those faggots.”
The ruling says that when Rosen responded by telling Aboye, “You know we can hear you,” Aboye replied, “Shut up you faggots…I’m going to kill you with my dog. I’m going to have my dog kill you.”
The dog was described at the trial as a “brindled pit bull mix.”
The ruling says Rosen testified at the trial that Aboye’s outburst “made him feel unsafe” and that Eichler called 911 on his cell phone.
“As he did so, appellant went into his store and returned with his dog on a leash,” walking the dog past the two men and away from the area, the ruling says. It says a D.C. police officer arrived on the scene within a few minutes. Court records show the officer arrested Aboye when he returned to the scene a short time later.
The ruling says Aboye was eventually charged with the misdemeanor offense of bias-related threats to do bodily harm.
Following a non-jury trial, D.C. Superior Court Judge Robert E. Morin found Aboye guilty as charged. Aboye waived his right to a jury trial.
Under the Bias-Related Crime Act, Morin had the option of handing down a sentence one and a half times greater than the sentence designated for a charge of a threat to do bodily harm. The D.C. criminal code calls for a possible maximum sentence of up to six months in jail and/or a $500 fine for a conviction of that offense.
However, court records show that on the day following the conviction Morin sentenced Aboye to 180 days in jail and suspended the entire 180 days. He further sentenced Aboye to 18 months of supervised probation, with the probation to become unsupervised after 9 months if Aboye complied with the terms of the probation. Among the terms was a requirement that he stay away from Rosen and Eichler.
A short time later Aboye through his attorney appealed his conviction to the D.C. Court of Appeals on grounds that the bias-related designation of the charge against him was invalid because the Bias-Related Crime Act didn’t specifically apply to the charge of criminal threats.
During the trial and prior to the verdict, Aboye’s attorney argued that the Bias Related Crime Act doesn’t explicitly list threats under its definition of a hate crime.
The appeals court ruling notes that during the appeal the attorney argued that the statute defines a bias-related crime as a “designated act that demonstrates an accused’s prejudice based on the actual or perceived” characteristic of a person, including the person’s race, religion and a series of other characteristics, including sexual orientation.
The attorney, Diane Bratter, also noted, according to the appeals court ruling, that a “designated act” is defined in the statute to mean “a criminal act, including arson, assault, burglary, injury to property, kidnapping, manslaughter, murder, rape, robbery, theft, or unlawful entry,” and several other criminal offenses.
“Because the offense of threats to do bodily harm is not one of the particularly enumerated crimes in this definition, appellant argues that it is not a ‘designated act’ subject to enhanced punishment under the Bias-Related Crime Act,” the appeals court decision says.
“The government rejoins that the use of the word ‘including’ before the enumeration of particular offenses shows that the list is merely illustrative, not exhaustive, and that the term ‘designated act’ means any criminal act under D.C. law,” the ruling says.
“The trial judge agreed with the government – and so do we,” says the appeals court ruling.
D.C. Court of Appeals Judge Stephen H. Glickman, who wrote the ruling, states that the appeals court panel examined the D.C. Council’s legislative history in drafting and passing the Bias-Related Crime Act and determined that the Council’s “legislative intent” was to cover criminal threats under the statute.
“Thus we are obliged to conclude from the plain language of the statute and the express direction in [Section] 1-301.45 (10) [of the law] that the definition of a ‘designated act…encompasses any criminal act under District of Columbia law, including threats of bodily harm,’” the appeals court ruling states.
Aboye and his attorney couldn’t immediately be reached to determine if they plan to appeal the Aug. 6 ruling to a federal court.
Rosen, reached by email, said he has since moved to Toronto and wanted to take some time to study the appeals court ruling before making a comment.
“We are pleased with the Court’s decision,” Acting U.S. Attorney Vincent H. Cohen Jr. told the Washington Blade in a statement. “The U.S. Attorney’s Office is committed to ensuring that the law fully recognizes the gravity of crimes that target citizens in our LGBT community.”
According to the appeals court ruling, the incident that led to Aboye’s arrest was not the first time Aboye acted in a hostile way toward Rosen and Eichler. It notes that the couple, who lived at the time in Adams Morgan, regularly walked their own smaller dog and crossed paths with Aboye while he walked his dog.
On one prior occasion, the ruling says, Eichler perceived Aboye’s dog Tarzan as appearing friendly toward his and Rosen’s dog Nico, prompting Eichler to approach Aboye and Tarzan. Aboye responded by jerking Tarzan back, according to the ruling, and telling Eichler, “My dog doesn’t like homosexuals. You are a homosexual, right?”
“Eichler affirmed that he was so, and appellant continued, ‘My dog doesn’t like homosexuals; my dog doesn’t like faggots,’” the ruling quotes Aboye as saying.
Court records also show that D.C. police arrested Aboye in August 2011 outside a restaurant on the 6300 block of Georgia Ave., N.W. on a charge of simple assault against a man who claimed Aboye targeted him because he’s Mexican. Court records show prosecutors dismissed the charge against Aboye after he successfully completed a four-month diversion program that allows first-time offenders charged with a misdemeanor to be eligible for the dismissal of certain charges if they comply with the terms of the program.
Lou Chibbaro Jr. has reported on the LGBT civil rights movement and the LGBT community for more than 30 years, beginning as a freelance writer and later as a staff reporter and currently as Senior News Reporter for the Washington Blade. He has chronicled LGBT-related developments as they have touched on a wide range of social, religious, and governmental institutions, including the White House, Congress, the U.S. Supreme Court, the military, local and national law enforcement agencies and the Catholic Church. Chibbaro has reported on LGBT issues and LGBT participation in local and national elections since 1976. He has covered the AIDS epidemic since it first surfaced in the early 1980s. Follow Lou
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