HB-4836, As Passed House, May 20, 2009

HOUSE BILL No. 4836

April 28, 2009, Introduced by Reps. Robert Jones, Stanley, Warren, Donigan, Smith, Bauer, Geiss, Young, Durhal, Leland, Scripps, Gregory, Roy Schmidt and Cushingberry and referred to the Committee on Judiciary.

     A bill to amend 1931 PA 328, entitled

"The Michigan penal code,"

by amending section 147b (MCL 750.147b), as added by 1988 PA 371,

and by adding section 377d.

THE PEOPLE OF THE STATE OF MICHIGAN ENACT:

     Sec. 147b. (1) A person is guilty of ethnic intimidation if

that person maliciously, and with specific intent to intimidate or

harass another person because of that person's race, color,

religion, gender, or national origin, does any of the following:

     (a) Causes physical contact with another person.

     (b) Damages, destroys, or defaces any real or personal

property of another person.

     (c) Threatens, by word or act, to do an act described in

House Bill No. 4836 as amended May 20, 2009

subdivision (a) or (b), if there is reasonable cause to believe

that an act described in subdivision (a) or (b) will occur.

     (2) Ethnic intimidation is a felony punishable by imprisonment

for not more than 2 years, or by a fine of not more than $5,000.00,

or both.

     (1) A person is guilty of a bias-motivated crime if the person

[demonstrates the specific intent to target the victim] of a predicate

 crime based in whole or in part

on 1 or more of the following characteristics, regardless of

whether or not the perpetrator's belief or perception of the

characteristic is correct:

     (a) Disability.

     (b) Gender, gender identity, or expression of gender.

     (c) National origin or ancestry.

     (d) Race, color, or ethnicity.

     (e) Religion.

     (f) Sexual orientation.

     (g) Status as a veteran.

[(h) Age.

(i)] Association with a person or group with 1 or more of the

characteristics in subdivisions (a) to [(h)].

     (2) A predicate crime against private property is bias-

motivated if the perpetrator [demonstrates the specific intent to target]

 the property because of a

characteristic in subsection (1) of any individual associated with

the property.

     (3) A predicate crime against public property is bias-

motivated if the perpetrator demonstrates the specific intent to

intimidate or harass 1 or more individuals because of a listed

characteristic.

     (4) A bias-motivated crime is a felony punishable as follows:

     (a) If the predicate crime is a misdemeanor, by imprisonment

for not more than 2 years or a fine of not more than $5,000.00, or

both.

     (b) If the predicate crime is a felony, by imprisonment within

the statutory range established for the predicate crime except that

the minimum and maximum recommended sentencing range under the

sentencing guidelines for that crime shall be increased by 50% as

provided in section 21 of chapter XVII of the code of criminal

procedure, 1927 PA 175, MCL 777.21.

     (5) A person shall not be convicted of both the lesser

included predicate crime and a bias-motivated crime charged under

this section. This section does not prohibit a person from being

charged with, convicted of, or sentenced for any other violation of

law arising out of the same criminal transaction.

(6) (3) Regardless of the existence or outcome of any criminal

prosecution, a person who suffers injury to his or her person or

damage to his or her property as a result of ethnic intimidation a

bias-motivated crime may bring a civil cause of action against the

person who commits the offense to secure an injunction, actual

damages, including damages for emotional distress, or other

appropriate relief. A plaintiff who prevails in a civil action

brought pursuant to this section may recover both of the following:

     (a) Damages in the amount of 3 times the actual damages

described in this subsection or $2,000.00, whichever is greater.

     (b) Reasonable attorney fees and costs.

     (7) As used in this section:

House Bill No. 4836 as amended May 20, 2009

     (a) "Disability" means a determinable physical or mental

characteristic of an individual that may result from disease,

injury, congenital condition, or functional disorder that

substantially limits 1 or more of the individual's major life

activities.

     (b) "Gender, gender identity, or expression of gender" means a

person's actual or perceived gender or gender-related appearance,

self-image, behavior, or expression, whether or not traditionally

associated with the person's assigned sex at birth.

     (c) "Predicate crime" means a violation of any of the

following, but not if proof of a characteristic identified in

subsection (1)(a) to [(H)] is an element of the violation:

     (i) Chapter X.

     (ii) Chapter XI.

     (iii) Chapter XXXIII.

     (iv) Chapter XLV.

     (v) Chapter LVI.

     (vi) Chapter LXIV.

     (vii) Chapter LXXVI.

     (viii) Chapter LXXXIII-A.

     (ix) Sections 223 to 234c.

     (x) Section 240.

     (xi) Section 411a(2).

     (xii) Section 411h or 411i.

     (xiii) Any other provision of this act that includes as an

element of the offense the specific intent to intimidate or harass

another person or persons.

     (d) "Sexual orientation" means an orientation for

heterosexuality, homosexuality, or bisexuality or a history of or

identification with that orientation.

     Sec. 377d. For purposes of sections 377a to 377c, 380, 383,

and 387, a person who, with intent to intimidate, does any of the

following on property without the express permission of the

property owner is considered to have injured or altered that

property, whether or not any physical damage is caused:

     (a) Hangs, affixes, or otherwise places a noose on the

property.

     (b) Burns, or places with intent to burn, a cross or cross-

shaped object on the property.

     Enacting section 1. This amendatory act does not take effect

unless Senate Bill No.____ or House Bill No. 4835(request no.

01144'09 a) of the 95th Legislature is enacted into law.