Charges | It may take more than hate to qualify as hate crime

Odd as it may seem, hate alone is not enough to warrant federal hate-crime charges.

State and federal prosecutors spent Monday weighing the pending prosecution of Naveed Afzal Haq, the 30-year-old man accused of killing one employee and wounding five others in a shooting rampage at the Jewish Federation of Greater Seattle on Friday. Haq allegedly stated he was angry at Israel and Jews as he stalked the federation's hallways, indiscriminately shooting workers before surrendering to police.

King County prosecutors are moving toward filing aggravated-murder and attempted-murder charges against Haq, perhaps as early as Wednesday, said Dan Donohoe, a spokesman for the King County Prosecutor's Office. Also at the state's disposal is a malicious-harassment charge — the state's version of a hate-crime law — that could add up to five years to any sentence if Haq is convicted. Donohoe, however, said no final decision has been made as to what charges will be filed.

If convicted of aggravated murder, Haq could face life in prison or the death penalty. In addition, he faces five counts of attempted murder, with additional penalties because he used a gun.

A conviction on state murder charges would not require the state to prove that hate was a motive for the crime.

Nor would it prohibit the federal government from pursuing its own hate-crime charges.

Assistant U.S. Attorney Mike Lang said Monday federal prosecutors have not ruled out federal charges, as they monitor the state's investigation and wait for the FBI to complete a probe of its own.

Lang and Assistant U.S. Attorney Bruce Miyake, who handles civil-rights and hate-crime prosecutions for the office, said proving a hate crime under federal law might be more difficult than it would seem, regardless of Haq's reported statements.

"Hate by itself is not enough," Miyake said. "It's sort of hate-'plus.' "

The "plus," Miyake explained, requires the government to prove that more than race, religious preference or national origin was a factor in the crime. "You also have to be able to show that the individual was interfering with a federally protected right," such as voting, using interstate commerce or attempting to use a public facility.

That's because the law harkens to the civil-rights struggle of the early 1960s, when blacks were assaulted for attempting to eat at segregated lunch counters or to register to vote.

Still, there may be a section of the statute under which Haq could be prosecuted in federal court, Miyake and Lang said. For example, one of the federally protected rights cited by the law is "applying for or enjoying employment."

"The mere fact that they were in the act of working may be enough," Lang said.

There is one final hurdle that the office must overcome: Federal hate-crime prosecutions must be specifically approved by U.S. Attorney General Roberto Gonzales.

The U.S. Attorney's Office in Seattle has successfully prosecuted hate crimes in the past. In the most recent high-profile prosecution, a 54-year-old Snohomish man, Patrick Cunningham, received a 6 ½-year prison sentence in 2002 after he set fire to cars and threatened worshippers with a gun at the Idris Mosque in North Seattle two days after the Sept. 11, 2001, attacks.

Jack Levin, a nationally recognized expert on hate crimes and a professor at Northeastern University in Boston, said Monday that prosecutors are often shy about filing hate-crime charges because of a perception that they are difficult to prove and don't carry heavy-enough penalties.

Levin said two recent studies he conducted for the university's Brudnick Center for Conflict and Violence showed that to be a misperception.

"The issue is going to be whether the state penalties are going to be severe enough," he said. "Washington has a death penalty for murder. You have to ask whether obtaining a federal conviction would be worth it." Moreover, he said there is no evidence that hate-crime convictions act as a deterrent to others.

On the other hand, he said, there may be a symbolic reason for filing hate-crime charges: "Public outrage is high. While it might be overkill, it sends a message to victims everywhere that these kinds of crimes won't be tolerated."

Mike Carter: 206-464-3706 or mcarter@seattletimes.com