U.S. seeks authority over cross-burnings

February 18, 1994|By Lyle Denniston | Lyle Denniston,Washington Bureau of The Sun

WASHINGTON -- Nearly two years after the Supreme Court seemed to scuttle much of the government's power to outlaw cross-burning as a form of racist protest, the Clinton administration is seeking clear federal authority to deal with those incidents.

Days before the latest reported incident -- early this week outside the home of a black woman in suburban Sterling, Va., west of here -- the Justice Department took the first steps to put the issue back before the Supreme Court in a new constitutional test.

Continuing a policy of the Bush administration, the department wants to use three federal criminal laws against those who burn crosses aimed at minorities or at whites who associate with minorities. Conflicting lower-court rulings that followed the Supreme Court's 1992 decision, however, have put some of that power in doubt.

In its ruling in June two years ago, the Supreme Court split 5-4 in declaring that the government may not single out specific hate messages, conveyed by speech or by symbolic gestures, and outlaw only those messages. That ruling struck down a St. Paul, Minn., ordinance explicitly aimed at cross-burning that is used to convey a message of racial hatred.

Since then, cross-burnings have continued to occur, according to data from the Klanwatch project of the Southern Poverty Law Center in Montgomery, Ala. Based on what it concedes is incomplete data, the project counted 117 cross-burnings in 1992 -- the last year reported. That was up from 110 a year earlier. The project's preliminary data for 1993 indicate some decline from the 1992 total.

David Webb, the Klanwatch project researcher, said "there is a low level of awareness among law enforcement agencies about hate crimes," and thus many of those incidents, including cross-burnings, do not get reported officially.

When the Justice Department prosecutes for a cross-burning outside a home, it usually files charges under three laws: a post-Civil War law against plots to interfere with civil rights; a 1968 law protecting equal housing rights; and a 1982 law against arson.

The FBI this week was investigating whether any of those laws may have been violated when a crudely made wooden cross, bound to a shovel, was set afire in a snowbank near the front door of Patricia Lansdown of Sterling on Monday night. Ms. Lansdown is black; two white men were arrested Tuesday on charges of violating Virginia laws for that incident, the Loudon County sheriff's office reported.

Two of the federal laws often used against cross-burning are under constitutional challenge in a case awaiting Supreme Court action, growing out of two cross-burnings in 1989 in Keeneyville, Ill., a town west of Chicago. The third is under challenge in a case that began with a cross-burning in a field near a mixed-race apartment project in Coon Rapids, Minn., a suburb of Minneapolis, also in 1989.

The Clinton administration will spell out its constitutional defense of all three federal laws when it files replies to the pending appeals early in March.

But it also has filed its own appeal in the Coon Rapids case to test its authority to use the 1982 anti-arson law in cross-burning cases. A federal appeals court had ruled in that case that that law was aimed only at arson, not at using fire to carry out other crimes.

When it replies to the other appeals next month, the Clinton administration told the court, it will defend the constitutionality of using the civil rights conspiracy and equal-housing laws against cross-burning.

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