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No decision yet on hate-crime designation in charges against white supremacists

BISMARCK — The prosecutor who charged two white supremacists with terrorizing for approaching residents of Leith with loaded firearms said Tuesday a decision hasn’t been made yet on whether to seek a hate-crime designation for the alleged offenses.

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The FBI, which investigates hate crimes as civil rights violations, has been consulting with the Grant County Sheriff’s Office, FBI spokesman Kyle Loven said.

“But as far as whether or not there will be hate crime charges, that is something the U.S. attorney would have to decide,” he said.

U.S. Attorney Timothy Purdon said he could neither confirm nor deny whether his office is investigating possible hate crimes in Leith, where white supremacist Craig Cobb has tried to attract like-minded people to help him take over the town’s government.

Cobb, 62, and Kynan Dutton, 29, were each charged Tuesday in Grant County District Court with seven counts of terrorizing, a Class C felony punishable by up to five years in prison. Five of the felony counts carry mandatory minimum sentences of two years because they involve firearms.

Cobb and Dutton are accused of terrorizing five people with loaded firearms during incidents on Friday and Saturday and raising canes in a threatening manner as they approached two women in a vehicle in a separate incident Saturday.

Both men are being held without bond at the Mercer County Jail. Their next court appearance, a preliminary hearing and/or arraignment, is set for Dec. 9.

Grant County Assistant State’s Attorney Todd Schwarz said Tuesday that that if federal authorities pursue a hate-crime charge, it won’t be at his urging.

“The hate crime designation, I think, is a dangerous thing,” he said. “Let’s judge the actions by the actions.”

The FBI defines hate crime — also known as bias crime — as a traditional criminal offense such as murder, arson or vandalism, motivated by the offender’s bias against a race, religion, disability, sexual orientation or ethnicity/national origin.

North Dakota law makes it a Class B misdemeanor to injure, intimidate or interfere with someone “because of his sex, race, color, religion or national origin and because he is or has been exercising or attempting to exercise his right to full and equal enjoyment of any facility open to the public.”

But state law doesn’t list bias as one of the 14 factors for judges to consider at sentencing, and a lawmaker’s attempt to add it in 2011 failed.

The bill, introduced by Sen. Carolyn Nelson, D-Fargo, would have added as a sentencing factor that “The defendant’s conduct showed bias based on race, color, religion, sex, sexual orientation, disability, age or national origin.” The bill failed on a 44-2 vote in the Senate, with critics claiming it was overly broad and unnecessary.

Nelson said she would reintroduce it if her constituents want her to do so.

“I think there’s people who are concerned, it’s just that they’re not in the majority at this point,” she said.

Schwarz said First Amendment rights are important, and the hate-crimes designation is “a slippery slope.

“I don’t advocate racism or hate speech,” he said, but he added. “I’m not prosecuting Mr. Cobb because of his beliefs … I’m prosecuting him because of his actions, just as I would prosecute somebody who did the same thing to Mr. Cobb.”

Schwarz said if federal authorities find grounds to pursue charges with an element of bias, the state’s attorney’s office will cooperate and assist in any way it can.

 “If it becomes appropriate for the feds to step in, that doesn’t mean that our charges will go away,” he said, noting there could be dual prosecution.

Cobb is a hate crimes fugitive from Canada, having been charged Dec. 31, 2010, in Vancouver, British Columbia, for the willful promotion of hatred. He fled to the United States.

A member of the Royal Canadian Mounted Police’s British Columbia Hate Crime Team has said that Cobb can’t be extradited back to Canada because there is no similar law for the offense in the United States.

The Matthew Shepard and James Byrd Jr. Hate Crimes Prevention Act of 2009 broadened the federal hate-crimes law to include crimes committed because of gender, sexual orientation, gender identity or disability. It also allowed federal authorities to pursue the prosecution of hate crimes when local authorities are unable or unwilling to do so.

The FBI keeps track of hate crime incidents through its Uniform Crime Reports system. In 2011, the most recent year for which statistics were available on the FBI’s website, North Dakota agencies reported 27 hate-crime incidents: 19 motivated by race, three by religion and five by sexual orientation.

Purdon said his office is assembling a civil rights team to take referrals of hate crime cases and work with the Justice Department’s efforts to counter violent extremism. The team, which also will expand on an existing outreach program, should be finalized in the next couple of weeks, he said. 

Mike Nowatzki

Mike Nowatzki reports for Forum News Service. He can be reached at (701) 255-5607.