As you probably have heard, on September 10, 2002, the Topeka City Council passed a bias crimes ordinance that took effect on September 18, 2002. The ordinance is No. 17885, and a copy is attached hereto.

    In a nutshell, anyone who commits a battery, assault, disorderly conduct, criminal damage to property, criminal trespass, telephone harassment, carrying a deadly weapon, discharging a firearm or drawing a weapon on another, by reason of any motive or intent "relating to, or any antipathy [a strong feeling of aversion or repugnance], animosity or hostility based upon, the race, religion, color, sex, sexual orientation, disability, national origin or ancestry, or age of the individual or group of individuals," can get an enhanced sentence for the crime.

    Please note there must be sufficient evidence to prove, beyond a reasonable doubt, that the suspect was actually motivated by their bias. Usually this will require some proof that the suspect had knowledge of the condition at the time they committed the crime.

    If you decide to charge a bias crime, the underlying offense (assault, battery, etc.) should not be charged in addition to the bias crime count. In City of Wichita v. Edwards, 23 Kan.App.2d 962, 973, 939 P.2d 942 (1997), the Kansas Court of Appeals held that convictions for ethnic intimidation and battery and disorderly conduct were multiplicitous, meaning the City attempted to punish the defendant more than once for one criminal act. The government can only impose one penalty per criminal act. Accordingly, charge only a violation of the bias crime ordinance, not the underlying offense.

    Until Ordinance No. 17885 is codified and assigned a chapter and section number in the city code book, citations should list the charge as "17885" and the description as "Bias Crime." The narrative, whether it appears on the back of the citation form or in an offense report supplement, will need to specify facts showing which of the several listed crimes the suspect committed (battery, assault, etc.) and what evidence exists to suggest the crime was motivated by the suspect's bias towards a group or individual. Please advise if you have any questions