‘Is it a hate crime or not?’ Investigating hate is complicated. In Wisconsin policing, it’s at times misunderstood.

The State of Hate is a five-part series based on a review of hundreds of pages of hate investigation police reports as well as five years’ of criminal charges in Wisconsin. This is Part Two, covering how hate crimes are defined in Wisconsin.

“When people think of hate crimes, it’s probably different than simple graffiti,” Janesville Police Chief David Moore said. 

Understanding hate and how to investigate and prioritize it starts at the top of a law enforcement agency. A News 3 Investigation requested hate-based police reports from dozens of agencies reporting crimes across the state. In follow-up phone calls and interviews, a spectrum of perspectives emerged in how agencies understand and prioritize hate.

The Janesville Police Department, which has incorporated bias training into some annual requirements, has had at least seven hate investigations in the past three years. A couple ultimately weren’t classified as hate crimes — once in 2018 because they weren’t able to locate the victim after an intoxicated suspect harassed him with a knife on the street. Other instances were graffiti, including an anti-Trump incident that officers at first thought might be an anti-white crime before the classification was corrected. Another was a father threatening his daughter when she chose to date outside the family’s Muslim culture, or two school-based bullying incidents.

Most of the investigations, Moore said, have been low level crimes. 

“Officers are aware that’s part of their duty,” Moore said. “I don’t want to diminish those concerns, but there are many incidents where really no harm comes to someone but still qualifies as a hate crime.”

Black Lives Matter protests prompt hate tags initial investigations

As thousands protested police violence and racial discrimination last year in the wake of George Floyd’s murder in Minneapolis and the shooting of Jacob Blake in Kenosha, some officers used hate crime tags on reports involving anti-police rhetoric or Black Lives Matter graffiti before the Wisconsin Department of Justice reviewed their reports.

The initial classifications provide insight into how some law enforcement understand the BLM movement as well as enforcement of Wisconsin’s hate crime laws. Black Lives Matter is not classified as a hate group, nor do state hate crime laws protect people based on their occupation. 

In Lodi, police chief Wayne Smith said BLM and anti-police graffiti in a local park last summer was first classified as a hate crime because of law enforcement bias. While Smith said he thought the classification was an error, he said there was still confusion and it was a “gray area” because he believed it was discrimination against law enforcement.

“This clearly seems to be based in hate over racial things or racial concerns and it’s directed at law enforcement,” he said in a phone call. “So is it a hate crime or not? I really don’t know. But does it have a background in what’s driving it? I think it does. So what do you call it?” 

In the most recent data from the state DOJ’s database on hate crimes, which updates after corrections and reviews, the incident was still marked as hate-based.

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BLM and anti-police graffiti in a Lodi park, first tagged as hate last year

Police reports show Barron’s police chief Raymond Parr spent days tracking down juveniles involved in a graffiti investigation after “BLM” and “No justice no peace” was spray painted on the side of a pavilion at Barron’s Anderson Park.

The incident was first tagged as a hate crime when News 3 reached out to the agency for the reports. After filing the request, the department said they submitted a correction to the DOJ, part of annual reviews that happen at agencies statewide for reported hate.

It was a similar story in Wisconsin Dells, where the police department said a report had been misclassified as a hate crime for “BLM” graffiti spray painted on a concrete wall in Bowman Park. The theft of a ‘Back the Blue’ flag in Stanley also made the cut. Other times, like in the theft of a Confederate flag in Bloomer last fall still classified as being hate-motivated, political motivations also underpin the hate-based classification.

Some of those classifications could ultimately be included in FBI hate crime annual reports, since several weren’t reviewed by the mid-March deadline. Corrections submitted to the state after that deadline are automatically updated in the Wisconsin Department of Justice database, and the DOJ said the FBI will do its own review if they flag a jurisdiction as having an unusually high or low number of crimes.

“District attorneys in each county are really the ultimate voice on what exactly is a hate crime enhancer and what is not,” Steve Wagner said, the DOJ’s Training and Standards Bureau director. “We would encourage officers to gather all the information whether they think it is or not.”

The current political climate has made law enforcement both more aware of hate but also more defensive when police are targeted, former U.S. Attorney for the Western District of Wisconsin John Vaudreuil explained. But there’s also clear lines of what is and isn’t a hate crime.

“There shouldn’t be any misunderstanding,” Vaudreuil noted. “We could all tick it off right now: Race, color, religion, national origin, gender, sexual orientation, disability. It doesn’t say, ‘If you say defund the police.'”

Confusions over reporting

In some cases, police may not report hate in an incident to the DOJ because it wasn’t charged as a hate crime. That’s not a requirement to be reported, as many reported crimes like vandalism often go without suspects or subsequent charges.

In Evansville last year, a burned pride sign went unreported because attorneys didn’t have enough evidence to bring the hate penalty, Police Chief Patrick Reese said. Because the suspect’s motivations seemed to be based more in hate to the overall community than just the LGBTQ’s community, charges weren’t brought — and the department didn’t report hate last year.

He noted, however, that he would be checking to determine whether it could have been reported to the DOJ.

“It was a shocker for a lot of people here, so they were pushing us to try to do something with the hate crime,” Reese noted. “The attorney said there’s just not enough here to do that with.”

The standard for what gets reported or not appears mixed from agency to agency across Wisconsin, a review of reports found. Racially-charged vandalism is a common hate crime in the state’s official statistics. But when Mayville reported the n-word scrawled on a school wall, the crime was ultimately deemed not to be hate-based. (Part Three of this series will delve further into how some crimes get reported, others don’t, and the mixed standards for what ultimately gets counted.)

The solution to underreporting is more training and funding, Wisconsin’s top law enforcement official said. Attorney General Josh Kaul joined in with 35 other attorneys general to voice support for the Congressional No Hate Act, passing the House of Representatives this week. The bill would direct more federal funding into better training and data collection of hate crimes nationwide.

Hate: A complex investigation

Investigating hate takes more time and a different approach than the average crime, investigators and prosecutors say. It takes an investment of police leadership and resources to properly understand. 

“[Police] are used to investigating what happened, who did it. These are ‘why’ crimes,” Vaudreuil said. “It is a more complex investigation that requires them to figure out why this person did something, what they were thinking.”

Like many states, the legal mechanism is a penalty enhancer and not its own crime, so it’s up to police to report any evidence that bias might have been a motivating factor in a crime like vandalism, disorderly conduct, or assault. More than that, police need to collect evidence to help determine whether a victim was specifically targeted for reasons that would put them in a protected class.

Currently, officers receive eight hours of bias training during police academy training, according to the DOJ. Beyond that, it’s up to police agencies whether to prioritize additional bias training as part of annual hour-based training requirements. Janesville Police Department, for example, has incorporated more bias training into annual sessions.

“You really have to understand the motivation behind the crime, and they have to collect evidence to show that there was motivation they were targeting that person specifically because of them being in a protected class,” Stephanie Pederson with the Wisconsin DOJ’s Training and Standards Bureau said.

Taya Dolsen, a detective at the Madison Police Department, has investigated hate for years. It’s the instructions that would be read to a jury that have helped her over the years understand better what to investigate and report, she said.

“I have been disappointed at times when I did believe it was, you know, racially motivated or something along those lines, but didn’t have the proof,” she said. 

“We can’t get inside someone’s head to see what they really intended.”