A divided appellate panel on Wednesday reversed the convictions of 16 members of an Ohio Amish community who engaged in a series of hair-shearing and beard-cutting assaults against followers of the faith three years ago.
A jury convicted all 16 members of the Bergholz community of at least one violation of the Hate Crime Prevention Act, which prohibits “willfully causing bodily injury to any person … because of the actual or perceived … religion … of that person.”
In what is believed to be the first federal appellate case involving the 2009 law, a 2-1 panel of the U.S. Court of Appeals for the Sixth Circuit held that the trial judge improperly instructed the jury on the motive element of a prosecution under the hate-crime statute.
That error, Judge Jeffrey Sutton wrote in United States v. Miller, was not harmless. Still, because the government presented enough evidence before the trial to win a conviction, the double-jeopardy clause did not prevent a retrial before a new jury, he said.
Sutton, joined by Judge Richard Griffin, said that motive played a “starring role” in the trial. The hate-crime law requires the government to show that a defendant attacked the victim “because of” the victim’s actual or perceived religion. The district court, he wrote, told the jury that the motive element could be satisfied by showing that a person’s actual or perceived religion was “a significant motivating factor” for the defendant’s action, even if there were other reasons for doing what he or she did as well.
However, Sutton wrote, the defense had the better argument when it claimed that the phrase “because of” requires “but-for” causation—a showing that defendants would not have acted but for the victim’s actual or perceived religious beliefs. In other words, that religion was the “straw that broke the camel’s back.”
Sutton looked to the everyday use of the phrase “because of” and concluded that it indicates a but-for causal link. He also cited the U.S. Supreme Court’s insistence in both the civil and criminal context that laws using the phrase “because of” require a showing of but-for causality, most recently in this year’s Burrage v. United States.
“Our court has said the same thing,” he wrote. “ ‘Because of’ in brief means what it says: The prohibited act or motive must be an actual cause of the specified outcome.”
A standard that required less than the but-for link, he said, “treads uncomfortably” close to the line separating constitutional regulation of conduct and unconstitutional regulation of beliefs. The but-for connection ensures that the criminal law targets conduct and not “bigoted beliefs” with little connection to the crime.
The district judge’s error was not harmless because, Sutton wrote, “When all is said and done, considerable evidence supported the defendants’ theory that interpersonal and intra-family disagreements, not the victims’ religious beliefs, sparked the attacks. And all of this evidence could have given a reasonable juror grounds to doubt that religion was a but-for cause of the assaults.”
Dissenting, U.S. District Judge Edmund Sargus Jr. of the Southern District of Ohio argued the majority had adopted an unduly restrictive interpretation of the law and had required proof of faith-based animus that is nowhere in the statute.
“Overwhelming and uncontested evidence adduced at trial demonstrates that ‘but for’ the victims’ Amish religion, their beards and hair would not have been cut,” Sargus wrote. “Because the record contains no evidence undermining the conclusion that the victims’ Amish religion was a but-for cause of the injury, the trial court’s causation-instruction error was harmless.”
The assaults followed a series of excommunications begun in 2006 by the Bergholz community’s bishop, Samuel Miller. Amish bishops from around the country met in September 2006 to discuss the shunnings and voted unanimously to reverse them.
Tensions within the community increased following a two-year child-custody battle and trial resulting in the award of permanent custody to one of the formerly excommunicated members who had left to join an Amish community in Pennsylvania. Believing that the loss of the children was caused by their sin, Sutton wrote, some Bergholz members cut their hair and shaved their beards as atonement.
“The Bergholz community did not confine this ritual to their own ranks,” he wrote. “They also used it to punish or harm others who were not members of the church district.”
From Sept. 6 to Nov. 9, 2011, Bergholz members committed five attacks on nine individuals, slicing off the men’s beards and cutting the women’s hair. “Religious and personal ties connected the nine victims of these attacks to the Bergholz community,” Sutton wrote. “Some were parents of Bergholz residents, some were friends and some were associated with family members who had left Bergholz for other Amish districts. Also linking the victims was that they participated in overturning the Bergholz excommunications and that, in the eyes of the assailants, they were ‘Amish hypocrites.’ “
Michael Rosman, general counsel of the Center for Individual Rights, represented one of the 16 community members convicted of violating the hate-crime law. The panel’s ruling, he said, was “a mixed blessing. We were hoping for a dismissal of the indictment rather than a retrial, so that part is a little disappointing. But on the other hand, a win is a win.”
Rosman said he and the government would have to consider their options.
“A number of defendants, including my client, already have served their sentences,” he said. “Some were sentenced to longer sentences but a number were sentenced to a year and a day. The district judge, to his credit, staggered some of the sentences so children wouldn’t be left completely without parental supervision.”
Contact Marcia Coyle at firstname.lastname@example.org.