***WARNING: VIDEO CONTAINS GRAPHIC LANGUAGE AND VIOLENCE***
To some who watched a grainy cellphone video of Saturday’s brutal mob attack outside an East Memphis grocery store, the math is simple: Black assailants plus white victim equals hate crime.
As further proof, these critics point to the inelegant remark made by a black woman who watched and videotaped the crowd of black teens pouring across a Kroger parking lot.
As several teens kicked a white Kroger worker who curled into a fetal position to protect himself, the woman can be heard on the video laughing and saying, “They got a white dude.”
But the insistence that the federal government investigate the attack as a hate crime — as actor James Woods demanded on Twitter this week — illustrates a fundamental misunderstanding of what a hate crime is, say legal observers.
Woods used the woman’s words as the social media equivalent of a gavel in his demand for an investigation by the U.S. Attorney General.
“Mr Holder,” @realjameswoods tweeted Wednesday to his 158,000-plus followers, “stand above politics and address the cancer of ALL racism in America. Go to Memphis. #holderchallenge #TheyGotaWhiteDude.”
— James Woods (@RealJamesWoods) September 10, 2014
The 11 alleged assailants arrested to date are black. Two other Kroger employees intervened — one white and one black — and were both slightly injured for their efforts.
But no amount of retweets or clamor — some of which came in the form of profanity-laced, slur-laden emailed threats to Memphis police director Toney Armstrong — can make the facts match the elements required to prosecute this as a racially motivated attack.\
“The current civil rights intimidation statute of the state of Tennessee does not cover the facts as we know them right now that happened on the Kroger parking lot,” Shelby County Dist. Atty. Gen. Amy Weirich said this week.
Mark Potok, senior fellow at the Southern Poverty Law Center, which tracks hate crimes, said Woods’ logic was often employed by white nationalists who “call for crimes like this to be charged as hate crimes when there is no evidence to support this.”
“Many people feel that any kind of interracial violent crime is a hate crime and that’s not true,” Potok said.
“These are people who feel that whites are somehow under attack by black people and that the government is not on white people’s side.”To prove that the assailants wanted to beat up a white person requires evidence of intent, said Steve Mulroy, a law professor at the University of Memphis who teaches both criminal and civil rights law.
That proof could come in many forms, he said, starting with an admission by the defendant that the victim was targeted because of his or her race.
A prosecutor might also look for a pattern of similar crimes or comments made to others that indicated a bias toward a particular protected class.
And while the words of the woman who took the video, with at least 500,000 views on YouTube, may be jarring to the ears, Potok said, “she’s an observer who’s simply commenting on what she sees.”
Said Mulroy: “There’s no evidence to suggest that the woman who was taking the video was in any way allied with the attacker.”
“If the woman said, ‘Aha, they got themselves a redhead!’ would we say this is an anti-ginger hate crime?”
According to the Tennessee Bureau of Investigation, black people made up 47 percent and white people 37 percent of the 348 victims of reported hate crimes in Tennessee last year. White perpetrators accounted for a slightly larger share of hate crime offenders than black ones, at 46 percent to 45 percent.
In 2013, anti-black bias was linked to nine cases of aggravated assault reported by Memphis Police; four cases of simple assault and one case of intimidation reported by Millington Police; and six cases of simple assault and one case of aggravated assault reported by the Shelby County Sheriff’s Office.
That same year anti-white bias was tied to one case of simple assault and another of intimidation reported by Memphis Police.
What the federal government labels hate crimes, state law calls civil rights intimidation.
Weirich and Armstrong acknowledged the feedback they’ve gotten from people who, like Woods, are insistent that the case has the elements of a hate crime.
“I have read the administration’s release saying there is no justification to view this racist beating as a hate crime,” wrote a critic in an email to Armstrong. “My planned visit is now canceled. I will not support a racist city or its bigoted, racist administration. Shame on you.”
This is a direct challenge to Eric Holder: Are you, Sir, going to Memphis, TN to address the Kroger racial hate crime? #holderchallenge
— James Woods (@RealJamesWoods) September 9, 2014