With seven-in-10 reported hate crimes in San Francisco occurring against gay men — the FBI is fully committed to enforcing federal hate crimes statutes regardless of who is in the White House, agents told an audience in the Castro.
That was the message that six members of the bureau brought to The Academy events venue in the LGBTQ neighborhood for a two-hour session August 30 where FBI, San Francisco police, and Castro Community on Patrol officials informed the community about hate crimes: why they're important to law enforcement, what they are, and what kinds are most prevalent.
The session began with remarks from San Francisco Police Chief William Scott, who said forums like these are important because they lay the groundwork for solving bias-motivated crimes.
"It's really important for both of our organizations to build relationships, particularly in this hate crime world," Scott said, referring to the San Francisco Police Department and the FBI. "Against the LGBTQ+ community, it's still a significant problem, and what we're seeing in our nation is more of it, more violence; we saw what happened in New York, what happened in Florida, the race-motivated killings."
Scott was referring to two recent crimes that garnered national headlines. Earlier this month, a New York City grand jury charged a 17-year-old male with homicide as a hate crime in the killing of O'Shae Sibley, a 28-year-old gay man stabbed to death while dancing at a gas station. The August 26 killing of three Black people at a Dollar General store in Jacksonville, Florida, by a 21-year-old white man was racially-motivated, according to the local sheriff. The killer wore a flag patch of Rhodesia, an unrecognized apartheid state that saw a race war from when it seceded from the British Empire in 1965 until it became Zimbabwe in 1980.
Scott introduced Christopher Del Gandio, the first out gay captain in the SFPD, and executive sponsor of the chief's LGBTQ advisory forum, and Greg Carey, a gay man who is co-chair of the forum and chair of Castro Community on Patrol.
The SFPD's advisory forum provides an opportunity for civilians to work "directly with the command staff of the police department," Carey said, including the chief. Castro Community on Patrol is a group of citizen volunteers who provide a visible safety presence in the Castro and serve as a liaison to law enforcement. They also put on self-defense workshops.
Robert Tripp, who was named as special agent in charge for San Francisco's FBI office, spoke next. Tripp, who was appointed to the position by FBI Director Christopher Wray last year, said he joined the FBI because he's passionate about protecting American ideals.
"One of those key ideals is that all of us, no matter who we are, are given certain rights," Tripp said. "I get it, 1776, the idea of who these people are was narrow, but it's expanded. These are constitutionally-guaranteed rights, which is the FBI's sworn mission to protect for you. The FBI's mission is to keep the community safe and to uphold the Constitution."
Primer on hate crimes
Tripp introduced key members of his team, including investigator Shaina Witter.
The FBI is to federal law enforcement what city police and county sheriffs departments are to state law enforcement, Witter explained, and there are two kinds of hate crimes statutes, federal and state. The FBI only investigates violations of federal law.
Hate crimes are "criminal offenses motivated, in whole or in part, by the offender's bias against race, religion, disability, sexual orientation, ethnicity, gender, or gender identity," according to the FBI's uniform crime reports.
Sexual orientation and gender identity have been covered under federal hate crime statutes since the Matthew Shepard and James Byrd Jr. Hate Crimes Prevention Act was signed by then-President Barack Obama in 2009. California has covered sexual orientation since 1984 (it was the first in the nation) and gender identity since 1998, but many states don't cover either, or only cover sexual orientation.
Both United States and California law require that for a hate crime to be proved there is a burden of proof on the prosecution to show bias and there is a requirement for proof of "but for" causation (proving that but for someone's protected class, the crime wouldn't have occurred). But the federal government can only get involved in cases that affect, in some way, interstate commerce, Witter said.
While some in the crowd expressed confusion on this, it's important to note that a whole host of federal laws, including parts of the Civil Rights Act of 1964, find their legal justification in the Constitution's commerce clause (in Article I, section VIII), which allows Congress "to regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes."
Witter gave an example of a hate crimes case in Santa Cruz, United States v. Hougen, that she said would have only led to the defendant serving weeks in county jail — but due to the involvement of FBI investigators, ended in an 82-month sentence.
The FBI investigators were able to devote the time to finding that the defendant, Ole Hougen, had a pattern of attacking Black men along the West Coast. His rap sheet was 120 pages long, Witter said.
However, the FBI could only get involved because the weapon in the Santa Cruz attack was a knife that'd been made in China — therefore opening up a commerce clause intervention.
When the jury did vote to convict, it took only 19 minutes — "the shortest deliberation in the entire Northern [California] district," Witter said.
Witter also stressed that there's a difference between a hate incident and a hate crime.
"A hate incident doesn't rise to the level of a hate crime," Witter said. "There's a lot of heinous language that is a First Amendment right, but not if it rises to a true threat."
Attendee Sister Roma of the Sisters of Perpetual Indulgence asked how law enforcement can distinguish between hateful language and true threats, which are not constitutionally-protected speech.
Violent aspirations don't lead to the level of a true threat, Special Agent Ethan Quinn said.
"We look for an articulated threat," Quinn explained. "An actual plan to cause you or a loved one harm."
By the numbers
FBI Analyst Allie Levison explained that the City and County of San Francisco has not seen the precipitous rise of all reported hate crimes since 2020 that has afflicted other parts of the state and nation, according to FBI statistics.
"In San Francisco, the hate crimes we see had a spike, 50% in 2018, but in 2020 we saw a 20% decline, which was unusual for that year," Levison said.
Indeed, hate crimes statewide are on the rise, according to a June report from the office of state Attorney General Rob Bonta, which as the Bay Area Reporter previously reported, showed that reported hate crime events rose 20.2% last year, including increases in crimes reported against gay men, lesbians, and trans people.
"Bias crimes typically follow the demographics of the area," Levison said. "Anti-gay male bias are the most prevalent hate crime reported in San Francisco in the last five years specifically," accounting for 70% of the total.
The next-most common in San Francisco are anti-Black hate crimes, which are "the highest in most jurisdictions" nationwide, Levison said. (Anti-Black hate crimes were also the most reported in Bonta's report.)
The highest number of reported hate crimes against trans people in San Francisco was in 2017-18, Levison said, but "it's good to see it has gone down and stayed steady," as it has been only two-per-year since.
Of hate crimes, Levison repeated numbers from an Anti-Defamation League report this year that found the overwhelming majority of hate crimes are harassment, followed by vandalism and assault. Of anti-LGBTQ hate crimes, "one of the many trends they [ADL] saw is 40% of those incidents were related to drag shows and performers. The grooming conspiracy, the pedophile conspiracy, was cited in over half of the incidents related to drag events and performers," Levison said.
Academy co-owner Nate Bourg, a gay man, asked if the FBI changes its work depending on who is president, specifically mentioning Republican former President Donald Trump.
"I can say without exaggeration it does not change at all," Tripp said. "Director Wray has served ably in the last administration and ably in this administration. He is incredibly apolitical and mission driven."
Quinn added that the FBI is "obviously an apolitical organization" but that it does keep an eye on what people say online about different groups — "the flavor-of-the-month harassment" — to assess potential threats.
Patrick Batt, a gay man who owns Auto Erotica on 18th Street, asked if people can report to the FBI directly if they don't trust local law enforcement to take hate crimes seriously.
"There's certainly a long history of that in our country — especially in the Jim Crow-era South," Quinn said. "That's why we have these specific statutes."
Batt was pleased with Quinn's answer.
"I go back to the J. Edgar Hoover times," Batt told the B.A.R. after the event, referring to the FBI's powerful first director (and closeted gay man), who served from 1924 to 1972. Under Hoover's leadership, the FBI conducted all types of surveillance of people and groups, including the late Reverend Dr. Martin Luther King Jr. "Very different FBI, and I was curious what they would say about the question I asked, if you lived in the panhandle of Florida."
Nonetheless, in San Francisco, it's best to report hate crimes to the local police first, Del Gandio said, and if it rises to the level of a federal case, SFPD will get the FBI involved.
The message from all the speakers was report, report, report — even if you are unsure if there was a crime or if it was bias-motivated, evidence can help build future cases.
"Most of this stuff is not reported," Carey said. "If you've been either assaulted or threatened, file a report with the police department. If it doesn't get reported, it never happened."
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