First case under city's hate crime ordinance to be prosecuted

Defendant headed for possible trial, while FBI reviewing two other cases for possible higher federal prosecution.

The Fargo Municipal Court opened in 2010 at at 402 NP Ave., the former site of the Greyhound Bus terminal.
The Fargo Municipal Court opened in 2010 at at 402 NP Ave., the former site of the Greyhound Bus terminal.
File photo / The Forum
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FARGO — The Fargo city prosecutor's office has filed its first hate crime case since a new ordinance took effect in July.

In addition, two cases have also been referred to the FBI for review for possibly more serious prosecution under federal law.

Fargo City Prosecutor William Wischer said he has reviewed several other cases forwarded to him by Fargo police, but this is the first one he believed warranted prosecution.

Under the new law, he said a hate crime can be attached to any simple assault, harassment or criminal mischief allegations. It's a Class B misdemeanor, which carries a penalty of up to 30 days in jail or a $1,500 fine, or both.

He didn't know how many cases he has looked at, but said it can be difficult to prove that someone acted in a certain way or "what was in their head" when they committed the crime.


The notice of this first case was part of a report given this week to the Fargo City Commission by Police Chief David Zibolski, who receives updates on bias and hate crime investigations from Lt. Jared Crane.

In 2021, the report said officers took 23 reports where the initial responding officer indicated a possible bias by the offender. Seven of those had facts that supported a possible charge after a secondary review as recommended by the FBI.

Crane wrote in the report that offenses that are motivated, in whole or in part, by the offender's bias against a race, religion, disability, sexual orientation, ethnicity, gender or gender identity are reported to the FBI if the police investigation reveals objective facts that would lead a "reasonable and prudent person" to conclude the offender's actions were motivated by bias.

The first city case now headed to a possible trial in Fargo municipal court involves a simple assault charge involving a Lake Park, Minnesota, man who is charged with punching a gay man numerous times in the face after using a profanity-laced gay slur against the victim.

The incident took place last Oct. 29 at Cactus Jack's in southwest Fargo, with the slurs occurring inside the bar, according to the charges, and the punches thrown outside during an apparent struggle.

The defendant, in what Wischer said was a rare step, wrote a five-page letter to the court asking that the "false complaint" be removed from the court docket when he learned of the charge late last month. What makes it unusual, said Wischer, is that 36-year-old Kirk Jensen hasn't yet been served his summons to appear in court, and a letter isn't usually filed in such a case.

Jensen outlines his side to the case, in which he already pleaded guilty to resisting arrest by a police officer in the higher district court, in the letter.

Jensen wrote "only the truth can help me now and is my only hope in preventing an unjust charge of assault and unwarranted character defamation of hate crime from following me around for the rest of my life."


In the incident, he said he experienced for the first time a "period of blackout" and that it only applies to the part of his case involving when he resisted arrest by police.

He denies the assault charge and said he was "attacked" by the victim and others outside the bar, he only acted in self defense and that he possibly blacked out after that because of a blow to the head.

Prior to the incident outside the bar, Jensen admitted to the gay slur against the victim, but that he had no prior insight into his sexual orientation or preferences.

He wrote he was "ashamed and remorseful at my choice in words," and added it "was not something I did out of hate or bigotry toward him or any type of person."

Under review

While that case is proceeding, those two other cases are pending a review by the FBI.

One of those involves Blair Rebecca Whitten, of Barnesville, Minnesota, who was convicted of defacing a statue of Jesus in front of St. Mary’s Cathedral in downtown Fargo and was charged with misdemeanor criminal mischief for spray-painting the face of the statue last April 17. The police report said the case could go further, potentially fitting federal hate crime laws because it involved damage to religious property.

The other case involves a Sept. 21 incident where a suspect is accused of assaulting a juvenile Black female by slapping her, pulling her hair and lifting her off the ground by her neck, causing her airway to be restricted, among other injuries. The victim and the victim's sister both stated that the suspect used racial slurs towards them during the incident. He was arrested for aggravated assault and the case was given to the state's attorney office as it would be a possible felony.

In two of the other seven cases last year that advanced after secondary reviews by police, there were no criminal charges filed at all. In another case, the suspect hasn't been identified.


In the final case police advanced for possible further hate crime prosecution, police suggested a hate crime when a Black suspect pulled a knife and walked aggressively towards a Native American victim last July in downtown Fargo. During a police interview, the suspect said he was angry with the victim because he was panhandling and that he "hates Indians." The suspect was arrested for felony terrorizing and prosecuted. The FBI, however, declined to adopt that case for any federal hate crime violations, police said.

Wischer said he wouldn't pursue any prosecution under the newly adopted city hate crime ordinance until after the FBI made a decision on whether to pursue the cases under federal law.

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