People v. Nitz

No. 3--96--0276
_________________________________________________________________

IN THE

APPELLATE COURT OF ILLINOIS

THIRD DISTRICT

A.D. 1996
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THE PEOPLE OF THE STATE OF ) Appeal from the Circuit Court
ILLINOIS, ) of the 14th Judicial Circuit,
) Rock Island County, Illinois
Plaintiff-Appellee, )
)
v. ) No. 95--CF--838
)
DOUGLAS E. NITZ, ) Honorable
) Larry Vandersnick,
Defendant-Appellant. ) Judge Presiding
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JUSTICE McCUSKEY delivered the opinion of the court:
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The defendant, Douglas E. Nitz, who is white, appeals from his
conviction on two counts of the offense of hate crime (720 ILCS
5/12-7.1 (West 1994)), based on his racially-motivated harassment
of his neighbor, Rochelle Gaines, who is African-American. On
appeal, Nitz raises several constitutional challenges to the
Illinois hate crime statute. For the reasons which follow, we
affirm.
FACTS
Nitz was charged with three counts of hate crime (720 ILCS
5/12-7.1 (West 1994)) and one count of contributing to the
delinquency of a minor (720 ILCS 130/2a (West 1994)). The hate
crime charges were based on the predicate crimes of disorderly
conduct (720 ILCS 5/26-1 (West 1994)) and misdemeanor criminal
damage to property (720 ILCS 5/21-1 (West 1994)). The alleged
incidents occurred in August 1995.
The Nitz family lives across the street from the Gaines family
in Milan, Illinois. The State maintained that on one occasion,
Nitz's son, Brian, became engaged in a shouting match with Gaines'
children. As things escalated, Brian threw a glass bottle and some
rocks at the Gaines residence. Gaines testified that some of the
rocks struck her house and a glass fragment struck her. As Brian
threw the items he screamed at Gaines, calling her a "black nigger
bitch" several times.
Nitz, a self-described "incomplete paraplegic," emerged from
his house in his wheelchair to determine what was going on. Gaines
testified that Nitz watched Brian throw things and yell racial
epitaphs and did nothing to intervene. In addition, Nitz yelled at
Gaines that "if it wasn't for the nigger moving in the neighborhood
we wouldn't have all these problems. Ever since this nigger moved
in the neighborhood has been nothing but problems. Niggers is
nothing but problems. What they needs to do is go back to Africa."
Gaines testified that after approximately fifteen minutes of abuse,
Brian's mother emerged from the house and forced Brian inside.
Gaines was extremely upset, hurt, and moved to tears by the
incident. As a result, she called the Milan police department.
On another occasion, Nitz and a friend of his were standing on
the street removing a police sticker from Nitz's car when Gaines
and her children pulled into her driveway. Gaines testified that
as she and her children walked towards their front door, Nitz or
his friend spit on her and Nitz called her a "black bitch" and a
"fucking nigger bitch." Nitz told Gaines that he "was sick and
tired of the bullshit" and there had "been nothing but problems"
since "you niggers moved into the neighborhood." Gaines said the
encounter left her in tears and ashamed because her children were
subjected to Nitz's use of profanity and racial slurs. She again
notified the Milan police department regarding Nitz's behavior.
Gaines testified that a few days later, Nitz, accompanied by
a friend, confronted her and accused her of calling the police to
get his car towed. Nitz told her that she was a "damned nigger
bitch" and said he would "get" her. Gaines testified that she was
alarmed and disturbed by Nitz's unspecified threat. Consequently,
she called the Milan police department, again complaining about
Nitz's racial slurs.
Several of Nitz's neighbors testified that they witnessed
numerous arguments and disputes between Nitz and Gaines. Nitz
referred to more than one neighbor as a "nigger lover" when he
perceived that a neighbor was intervening in the disputes.
Captain Steven Doyle, a 26-year veteran of the Milan police
department, testified that, for the year 1995, the Milan police
department responded to 65 calls and incidents regarding the Nitz
and Gaines households.
Ultimately, following a jury trial, Nitz was acquitted on two
counts of violating the hate crime statute and was convicted on two
other counts of committing a hate crime. Additionally, Nitz was
acquitted of contributing to the delinquency of a minor. At his
sentencing hearing, the trial court fined Nitz and placed him on
30 months' probation, including a term of six months in the Rock
Island County jail. This timely appeal followed.
ISSUES
Initially, we note that Nitz does not challenge his sentence
and concedes to the underlying conduct which resulted in the hate
crime charges. Nitz claims that the hate crime statute is an
unconstitutional infringement on free speech, is unconstitutionally
vague and unconstitutionally overbroad. Based upon our review of
the record and applicable law, we find no constitutional problems.
ANALYSIS
The Illinois hate crime statute replaces the crime of ethnic
intimidation (Ill. Rev. Stat. 1991, ch. 38, par. 12-7.1). Our hate
crime statute reads:
"A person commits hate crime when, by reason
of the actual or perceived race, color, creed,
religion, ancestry, gender, sexual
orientation, physical or mental disability, or
national origin of another individual or group
of individuals, he commits assault, battery,
aggravated assault, misdemeanor theft,
criminal trespass to residence, misdemeanor
criminal damage to property, criminal trespass
to vehicle, criminal trespass to real
property, mob action or disorderly conduct."
720 ILCS 5/12-7.1 (West 1994)).
A first offense under the statute is punishable as a Class 4
felony.
Nitz's hate crime convictions are based on the predicate crime
of disorderly conduct. A person commits disorderly conduct "when
he knowingly does any act in such unreasonable manner as to alarm
or disturb another and to provoke a breach of the peace." 720 ILCS
5/26-1 (West 1994). A violation of this section of the statute is
punishable as a Class C misdemeanor.
There is no dispute that Nitz's conduct amounted to disorderly
conduct, which formed the basis of the hate crime charge. Nor does
Nitz suggest that Illinois' disorderly conduct statute is
unconstitutional. See People v. Raby, 40 Ill. 2d 392, 240 N.E.2d 595 (1968).
I. Free Speech
First, Nitz claims that the hate crime statute is
unconstitutional because it impermissibly infringes on his free
speech rights. We do not agree.
Initially, we note that a statute is presumptively valid and
a party challenging the constitutionality of a statute bears the
burden of establishing its invalidity. People v. Warren, No.
79680, slip. op. at 3 (Sept. 26, 1996). Whenever reasonably
possible, we will construe a statute so as to sustain its
constitutionality. Warren, slip. op. at 3.
Our analysis is controlled by the United States Supreme
Court's decision in Wisconsin v. Mitchell, 508 U.S. 476, 124 L. Ed. 2d 436, 113 S. Ct. 2194 (1993). The Wisconsin statute examined in
Mitchell is a penalty-enhancement statute which increases the
penalty for various crimes based on the selection of a victim who
is a member of a protected class. The Illinois hate crime statute
is not technically a penalty-enhancement statute. Instead, section
12-7.1 creates a crime within itself. However, this does not
diminish the applicability of the Supreme Court's analysis in
Mitchell to the question of whether or not our statute
unconstitutionally infringes upon free speech. See In re Vladimir
P., No. 1-95-2141, slip op. at 7-8 (Sept. 20, 1996).
In Mitchell, the Court rejected a first amendment challenge to
the Wisconsin statute, and concluded that the statute was "aimed at
conduct unprotected by the First Amendment." Mitchell, 508 U.S. at
487, 124 L. Ed. 2d at 447, 113 S. Ct. 2194. The Court
distinguished its decision in R.A.V. v. St. Paul, 505 U.S. 377, 120 L. Ed. 2d 305, 112 S. Ct. 2538 (1992), which struck down an
ordinance that prohibited the use of fighting words which insulted
on the basis of race, color, creed, religion or gender. R.A.V.,
505 U.S. at 391, 120 L. Ed. 2d at 323, 112 S. Ct. 2538. The Court
found the ordinance in R.A.V. invalid because it prohibited a class
of fighting words based on the content of the speech. R.A.V., 505 U.S. at 391, 120 L. Ed. 2d at 323, 112 S. Ct. 2538. The ordinance
struck down in R.A.V. was directed at bias-motivated speech, while
the statute in Mitchell was aimed at conduct unprotected by the
first amendment. See Mitchell, 505 U.S. at 487, 124 L. Ed. 2d at
446-47, 113 S. Ct. 2194.
In Vladimir P., the Appellate Court, First District,
considered a hate crime case based on the predicate crime of
aggravated assault (720 ILCS 5/12-2 (West 1994)). In Vladimir P.,
several minors yelled obscene insults at a jewish youth, based on
his religion. One youth threw a knife handle at the victim and the
respondent threw the knife blade. The victim was not hit by the
handle or the blade. Following Mitchell, the first district
rejected the respondent's claim that the hate crime statute
punishes protected speech. Vladimir P., slip. op. at 8. The court
in Vladimir P. stated that the hate crime statute "does not punish
an individual for merely thinking hateful thoughts or expressing
bigoted beliefs. Instead, section 12-7.1 punishes an offender's
criminal conduct in choosing a victim by reason of those beliefs or
hatred, and then committing one of the criminal acts included in
section 12-7.1." Vladimir P., slip op. at 8. We agree with this
analysis.
Nitz claims that our inquiry should reach a different result
than Vladimir P. because the predicate crime of disorderly conduct
can result in a punishment based on mere speech alone. Again, we
do not agree with the defendant's argument. We note initially
that, in Mitchell, the Supreme Court upheld the constitutionality
of the Wisconsin statute which included disorderly conduct as one
of the predicate crimes. See Wis. Stat. 947.01 (1994). Even so,
we recognize that Mitchell and Vladimir P. do not involve hate
crime charges predicated solely on disorderly conduct.
Nonetheless, Nitz is incorrect in asserting that the Illinois
hate crime statute, predicated on the offense of disorderly
conduct, permits punishment based on the use of offensive words.
In Raby, our supreme court rejected the proposition that the
disorderly conduct statute punishes speech protected by the first
amendment. Raby, 40 Ill. 2d at 397, 240 N.E.2d at 598. The court
noted that "[u]nder no circumstances would the [disorderly conduct]
statute allow persons to be punished merely for peacefully
expressing unpopular views." Raby, 40 Ill. 2d at 397, 240 N.E.2d
at 598. As the court stated in People v. Bradshaw, 116 Ill. App.
3d 421, 452 N.E.2d 141 (1983):
"'Vulgar language, however distasteful or
offensive to one's sensibilities, does not
evolve into a crime because people standing
nearby stop, look, and listen. The State's
concern becomes dominant only when a breach of
the peace is provoked by the language.'"
Bradshaw, 116 Ill. App. 3d at 422, 452 N.E.2d
at 142 (quoting People v. Douglas, 29 Ill.
App. 3d 738, 742-43, 331 N.E.2d 359, 363
(1975)).
It is well-settled law that in order to sustain a disorderly
conduct charge, the State must prove the defendant performed an act
in an unreasonable manner and that the defendant's action alarmed
and disturbed another person so that a breach of the peace
occurred. 720 ILCS 5/26-1(a)(1) (West 1994). Following our
review, we find ample evidence in the record supporting the trier
of fact's conclusion that the State proved, beyond a reasonable
doubt, all of the elements of the disorderly conduct statute.
Because Nitz's disorderly conduct conviction is not based
solely on unpopular or bigoted speech, we find no infringement on
the constitutionally-protected right of free speech. In addition,
we find Mitchell and Vladimir P. persuasive authority for our
conclusion that the Illinois hate crime statute is not
unconstitutional.
II. Vagueness
Nitz argues that the hate crime statute is unconstitutionally
vague because it punishes an offender when, "by reason of" a
persons race, one commits a listed crime. Nitz bases his claim on
the assertion that the statute does not say whether bigotry must be
the single motivation of the actor in committing the crime or one
of several motivations. The first district has considered and
rejected the same argument. Vladimir P., slip. op. at 11. Again,
we agree with the first district's conclusion.
Due process requires that a statute must not be so vague that
a person of common intelligence has to guess at its meaning or
application. Warren, slip. op. at 3. Where the statute does not
impinge upon first amendment rights, due process is satisfied if:
(1) the statute contains sufficiently definite prohibitions so when
measured by common understanding and practice, a person of ordinary
intelligence has fair warning as to what conduct is prohibited; and
(2) the statute provides law enforcement officers and triers of
fact with sufficiently definite standards so that its application
does not depend merely on private conceptions. Warren, slip. op.
at 3.
In terms of common understanding, the phrase "by reason of"
means "because of." There is no requirement that the statute
specify whether, for instance, racism must be the main motivation,
or one motivation among many, for the statute to apply. We join in
the first district's conclusion: "[w]e find nothing in the language
of the statute that would prohibit a person with 'mixed motives'
from being prosecuted under the statute." Vladimir P., slip. op.
at 11.
We find the plain language of the hate crime statute clearly
states, in terms commonly used and understood, (1) the nature of
the offense and (2) the guidelines for the proper application of
the statute. Warren, slip. op. at 4. As a result, we find the
Illinois hate crime statute is not unconstitutionally vague.
III. Overbreadth
Finally, Nitz contends that the hate crime statute is
unconstitutionally overbroad because of an alleged "chilling
effect" on free speech. Again, we disagree.
A statute may be deemed overbroad when it discourages people
from exercising their first amendment rights because of fear of
punishment. People v. Anderson, 148 Ill. 2d 15, 26, 591 N.E.2d 461, 466 (1992). The overbreadth doctrine should be employed
sparingly, and only when a challenger can prove that a statute's
overbreadth is real and substantial. Anderson, 148 Ill. 2d at 26,
591 N.E.2d at 466. No such showing has been made in this case.
Nitz offers no case law or authority in support of his claim
that the statute is overbroad other than to say that some may fear
prosecution for uttering protected speech. As we previously
explained, Nitz misconstrues the nature of the statute. The
statute clearly does not punish people for the mere use of words.
In addition, the Supreme Court, in Mitchell, flatly rejected the
argument that the Wisconsin hate crime statute was
unconstitutionally overbroad because of an alleged chilling effect
on free speech. Mitchell, 508 U.S. at 488, 124 L. Ed. 2d at 447-
48, 113 S. Ct. at 2201; see also Vladimir P., slip. op. at 9.
Following the analysis in Mitchell and Vladimir P., we conclude
that the Illinois hate crime statute is not unconstitutionally
overbroad.
CONCLUSION
For the reasons indicated, we find the Illinois hate crime
statute is constitutional in all respects. We determine that the
statute punishes only racially motivated conduct and does not
unconstitutionally infringe upon individual free speech rights. In
addition, we find the statute is not unconstitutionally vague or
overbroad. Accordingly, the judgment of the circuit court of Rock
Island County is affirmed.
Affirmed.
SLATER and MICHELA, JJ., concur.