A man in the grocery store made an ominous gesture toward an Asian couple shortly after the COVID-19 pandemic began last year. Pointing his hand in a gun gesture, he said, "If I had an AK-47, I would kill you (expletive) Chinese right now."
The incident, as related by Santa Clara County Deputy District Attorney Erin West during a recent Palo Alto Human Relations Commission meeting, is one of many examples of hate crimes county and city law enforcement and prosecutors are dealing with, they said.
Hate crimes and hate incidents — demonstrations of hatred that are not associated with a criminal act — are rising dramatically in Santa Clara County and in Palo Alto, police and the Santa Clara County District Attorney's Office said during a Palo Alto Human Relations Commission meeting in mid-March.
The troubling trend caught the commission off guard. The rise was far steeper and the range of incidents were more alarming than they knew, said commission members, who have been aware of multiple hate incidents in the city since at least 2020.
Representatives of the Palo Alto Police Department and the DA's office presented the sobering news as the commission was preparing a letter of concern to the City Council that asks for specific actions to help combat hate crime and incidents in the city.
Chief Assistant District Attorney Jay Boyarsky, who spoke at the meeting, said there are hate incidents and hate crimes. While there are far fewer known hate crimes, the number of incidents is likely in the hundreds or thousands in Santa Clara County, and most of the crimes and incidents go unreported.
Boyarsky said there are important distinctions between a hate crime and a hate incident, although both are abhorrent. A hate incident does not necessarily involve racial, ethnic, gender or other targeted epithets and can be targeted at any group, and it is separate from a crime because it doesn't involve violence or the threat of harm or property damage.
"Given the First Amendment, it does not constitute a crime, unless it's accompanied with a specific threat to cause someone bodily harm or injury. But if you commit a crime such as a battery or vandalism, and there's evidence that shows it was done substantially because of the victim's actual perceived race, color, religion, etc.," it constitutes a hate crime, he said.
It's also the only crime where prosecutors need to prove beyond reasonable doubt that there was a motive, making convictions difficult. A prosecutor doesn't have to show a motive for a murder conviction, but for a hate crime, the DA must show what was in the person's mind when they committed the crime, he said. This bias against the victim must be substantial.
In a recent hate crime in Palo Alto, where a panhandling woman attacked a man of Middle Eastern descent and beat him with a laptop, one could argue she attacked him because he didn't give her money when she asked.
"But there was another cause. We know it was a bias because she then started calling him a terrorist, and saying go back to where you came from. So there were multiple causes, multiple motives. The bias is substantial. It doesn't need to be the main fact," he said.
Palo Alto police acting Capt. James Reifschneider said from 2006-2015, the city had an annual average of 3.6 hate crime reports. The number jumped to seven in 2016 and bounced between three and five through 2019. In 2020, the city had six hate crime reports, mostly involving tampering with yard signs or theft of yard signs.
In 2020, two crimes involved criminal threats. During a dispute between a passenger and a bus driver, the passenger made a threat to injure the driver and used a slur during the threat. The second case was a road-rage incident where one of the drivers made a threat against the other, using a slur.
So far in 2021, the city has had one report, which was a battery that involved the woman with the laptop.
Reifschneider said many of Palo Alto's hate crimes involve property theft or vandalism as opposed to violent hate crimes, the opposite of an FBI report that found more than 66% of hate crimes involved violence nationwide. In Palo Alto, more than 60% of hate crimes are property-based. It's often difficult to catch vandals and people who steal or damage signs and banners because there are usually no witnesses. The charges can range from an infraction if damage is under $250, a misdemeanor for damage or theft costing up to $400 or a felony for $400 or more. Damage to a religious institution is always a felony, however, he said.
Some Palo Alto cases that appeared to be clear acts of hate-based vandalism have not risen to the level of an arrest. In one case, an artist's messages in support of racial solidarity were affixed to city pavement with wheat paste. A person painted over the messages, which would constitute vandalism, but the wheat-paste art was on city property, the artist didn't have a permit to place them there, and the city's Public Art Commission did not approve the project. Police made contact with the person who painted over the messages and took a report, but no arrest or charges were filed, Reifschneider said.
First Amendment rights to free speech also protect speech that is hateful and abhorrent, but in which there are no threats of harm to others and are not attached to a crime, such as a battery.
The city began tracking hate-crime incidents in 2017.
"I think that it's important that we track incidents, even though they're not crimes, because they can potentially escalate to criminal behavior later, or they can give us some insight of trends or areas that we need to pay particular attention to," he said. The city has reported five hate incidents since 2017, he said.
Deputy District Attorney Erin West, who prosecutes hate crimes throughout the county, said the office filed 14 hate crimes in 2020. In 2019 and 2018, her office only filed two and three cases respectively. This year is showing troubling signs. In just the first three months of the year, there are six cases. If the trend continues at its current pace, there could be as many as 24 cases filed by the DA's office, she said.
The cases referred to her office in 2020 occurred throughout the county, including San Jose, Palo Alto, Santa Clara, Gilroy and Morgan Hill. Five victims were African American, four were Latino, two were Asian, one was LGBTQ, one was Jewish and one was Middle Eastern.
In 2021, two crimes occurred in San Jose and one each occurred in Palo Alto, Mountain View, Sunnyvale and Morgan Hill. Those victims include two African Americans, two Asians, one LGBTQ person and one Middle Easterner.
The incidents were disturbing, the commissioners said, after West described the details. In one case, the defendant overheard his neighbor speaking to his sons in Hebrew in the backyard and began yelling through the fence, "You Jewish? What language do you speak? I'm going to show you," and then sprayed them with a hose. A young Hispanic gang member told an older Black woman sitting on a park bench to "get her Black a-- out of there or he would kick her in the face" and he called her the "N word" several times. In Mountain View, a woman approached an Asian couple having lunch, spat on them and told them to go back to their country. A man in an apartment told his neighbor and the neighbor's girlfriend to go back to Africa, to go back to being slaves and picking cotton. He threatened to get someone with a gun to go after them and threatened to smash their car windows, then made a hand gesture simulating a noose.
Some crimes have been violent. A man living in a mental health group home became agitated with a person who tried to calm him down, strangled him, and said it was because he was Black. A Valley Transportation Authority bus driver was called a "wetback" by a boarding passenger who said Mexicans are dirty and struck the driver on the chin with his closed fist.
Boyarsky, who grew up in Los Angeles and was the frequent target of bullying incidents as a teenager, said he became an attorney to prosecute hate crimes.
"What I always say is a hate crime is a crime against three: It's a crime against the victim and it's also a crime against everyone in the community that is like that victim because it's sending a message to other people that are like that victim that they're not welcome here.
"And it's a crime against our country because in the United States, we have the right to life, liberty and the pursuit of happiness be free. When a crime is committed based on something that you cannot and should not have to change, it is a crime against the very foundation of our country," he said.
Boyarsky said it's important for more people to feel it is safe for them to report hate crimes. People should call the police or make a report online when they feel threatened so that these crimes can be prosecuted, statistics can be kept and authorities can identify trends.
He noted that the dialog appears to be shifting and people are taking these crimes and incidents seriously. A recent rally in San Jose attracted more than 300 people who stood together against hate.
"I think it's incredibly important, particularly now when we see these trends, for the public to see the media coverage, and to see leaders and nonleaders — ordinary citizens — coming together to condemn. Because the voices of hundreds then drown out the actions of the few who do these terrible things," he said.