Neo-Nazis, white supremecists and other alt-right factions scuffled with counter-demonstrators near Emancipation Park (Formerly Lee Park) in downtown Charlottesville, Virginia. After fighting between factions escalated, Virginia State Police ordered the evacuation by all parties and cancellation of the Unite The Right rally scheduled to take place in the park in Charlottesville, VA, USA on August 12, 2017. Photo: Albin Lohr-Jones/Sipa via AP

The killing of a legal assistant and injuries to others allegedly committed by a participant in the Charlottesville, Virginia, white supremacist rally over the weekend triggered calls for the defendant to face charges of domestic terrorism and hate crimes. But as the U.S. Supreme Court has shown, hate crime prosecutions, in particular, present difficult legal problems.

James Alex Fields Jr. of Maumee, Ohio, was denied bail in general district court in Charlottesville on Monday after being charged under state law with one count of murder, three counts of malicious wounding and one count of hit-and-run. Fields, who was taking part in the white nationalist rally, allegedly drove his car into a group of counter-protesters, killing Heather Heyer of Charlottesville and injuring 19 others.

U.S. Attorney General Jeff Sessions said Fields’ alleged act fit the definition of domestic terrorism, but he was silent on calls for charges under the federal hate crime law. He announced that the U.S. Department of Justice would open a civil rights investigation into the Charlottesville events.

A hate crime is basically a traditional offense such as murder or arson with the added element of bias. Federal and many state hate-crime statutes provide enhanced criminal penalties when certain crimes are motivated by a bias. Under federal law, that bias includes race, religion, disability, ethnic origin or sexual orientation.

“They are generally sentencing enhancements except the federal law is a substantive law that extends federal jurisdiction over certain kinds of bias crimes that would not otherwise be federal crimes,” said James Jacobs, a constitutional law professor at New York University School of Law. “They really just enhance the punishment for conduct that is already criminal. And they’re not used very much.”

For Fields’ alleged actions to be a hate crime under federal law, much depends on what is the intent and motive, added Jacobs, co-author with Kimberly Potter of “Hate Crimes: Criminal Law and Identity Politics.” “Was this discrimination or perceived discrimination on the basis of race? If it was anger at counter-protestors, maybe it would be more complicated to fit that under the federal hate crime statute.”

But it is too early to decide whether federal hate crime laws can be applied, said a former Justice Department official who requested anonymity.

“The problem right now is: Who knows what the evidence is?” he said. “Let’s wait to see how the evidence is developed over the course of the investigation.” The Justice Department, he added, is likely looking at a variety of statutes, including the Shepard-Byrd Act, Violent Interference with Federally Protected Rights (18 U.S.C. Section 245) and Conspiracy Against Rights (18 U.S.C. Section 241).

Virginia has a state hate crime law, but Fields has not yet been charged with a hate crime. The state law includes stiffer criminal penalties when a crime is motivated by a bias against the victim’s race, color, religion or national origin. In January, Virginia Attorney General Mark Herring announced that he was backing legislation to update the state’s definition to include bias against others because of gender, gender identity, sexual orientation and disability.

Herring’s office said there were 155 hate crime offenses reported in Virginia in 2015 — a 21 percent increase over 2014 — and most were based on racial bias. Nationally, the FBI reported a 6 percent increase in hate crimes in 2015, including a 67 percent increase in crimes against Muslim Americans.

The U.S. Supreme Court has dealt only with state and local hate crime enactments. It considered two cross-burning cases, a Virginia challenge in 2003 and a Minnesota case in 1992. The problems raised by those laws generally involved speech versus conduct under the First Amendment, and the type of evidence of motive that could be introduced.

For example, in 1993 in Wisconsin v. Mitchell, the justices considered the constitutionality of that state’s hate crime law. A group of young black men and boys, “hyped up to move on some white people” after they viewed the movie “Mississippi Burning,” according to the evidence, were convicted of severely beating a young white boy.

The Wisconsin Supreme Court struck down the statute because, it ruled, the law violated the First Amendment directly by “punishing what the Legislature has deemed to be offensive thought.” The court rejected the state’s argument that the law punished only the conduct of “intentional selection of a victim.”

A unanimous high court agreed with the state that the law restricted conduct, not protected speech. As to motive and evidence, Chief Justice William Rehnquist wrote: “Mitchell argues that the Wisconsin penalty enhancement statute is invalid because it punishes the defendant’s discriminatory motive, or reason, for acting. But motive plays the same role under the Wisconsin statute as it does under federal and state antidiscrimination laws, which we have previously upheld against constitutional challenge. Moreover, the Wisconsin statute singles out for enhancement bias inspired conduct because this conduct is thought to inflict greater individual and societal harm.

The First Amendment, moreover, does not prohibit the evidentiary use of speech to establish the elements of a crime or to prove motive or intent. Evidence of a defendant’s previous declarations or statements is commonly admitted in criminal trials subject to evidentiary rules dealing with relevancy, reliability and the like.”

The murder of Heyer would be an “odd fit” under the federal hate crime statute, said Jacobs, because it is a white-on-white crime. The classic case, he added, was the conviction of Dylann Roof last year on 33 counts of federal hate crimes for the slaughter of nine Black parishioners in a church in Charleston, South Carolina.

“I think it would be a stretch [to charge a hate crime in Heyer's death], at least at the moment, I don’t see how they would do that,” he said. “They can be very creative. It would be easier to treat it just as a pure homicide.”

There has been at least one white-on-white federal hate crime prosecution. The leader of a break-away Amish group in Ohio was convicted of hair- and beard-cutting attacks on fellow Amish who had left his group because of religious disagreements. The Supreme Court in February denied review of his challenge to the hate crime law and the kidnapping charge that led to his sentence enhancement.

And in May, a Mississippi man was sentenced to 49 years in prison in the first conviction on federal hate crime charges for the 2015 murder of a transgender woman.