FARGO — Fargo's City Commission voted 3-2 on Monday night, March 22, to have the city attorney look into the legality of imposing a city hate or bias crime law.

The ordinance would address crimes in which an individual is targeted with violence or threats of violence because of their race, skin color, ethnicity, national origin, religion, disability, gender, sexual orientation or gender identity.

Proposed by City Commissioner Arlette Preston, she said she wanted to "communicate clearly to the community that bias crimes won't be tolerated and will be prosecuted."

"We want everyone to feel safe and welcome in the community," she said.

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However, commissioners Tony Gehrig and Dave Piepkorn wondered if state law would allow the city to have its own ordinance, as a similar proposed state law was voted down in this session of the state Legislature.

"Wouldn't this be contradictory to state law?" Gehrig asked.

Assistant City Attorney Nancy Morris said she would seek an opinion from state Attorney General Wayne Stenehjem. She said Minnesota and South Dakota have state laws on bias crimes, although North Dakota's Legislature this session defeated a proposed law similar to Preston's suggestion.

If the city law is considered legal by Stenehjem, Morris would then draft a city ordinance for such a law.

Preston, Mayor Tim Mahoney and Commissioner John Strand supported looking further into the measure and likely would be the votes in favor of the law.

Gehrig and Piepkorn voted against looking into the issue any further.

Fargo Police Chief David Zibolski could name eight hate or bias crimes in the city in 2019, Preston said. There were another 10 such crimes reported through the first nine months of 2020.

Bias crimes would be a secondary charge attached to other criminal offenses such as simple assault, harassment, criminal mischief or discharge of a weapon. Violations would carry a fine of up to $1,500, 30 days in jail or both, which is the highest penalty a city ordinance can impose under North Dakota law.

The ordinance would also call for restitution to victims to help pay for medical bills, counseling, therapy or property damage.

While the city waits for Stenehjem's opinion, North Dakota laws passed during the Civil Rights Era in the 1970s are considered by some to be protections against hate crimes.

North Dakota had that legislation written into the Century Code in 1973, OneFargo racial justice organizer Wess Philome believes. Cass County State’s Attorney Birch Burdick said in a statement Monday that the law, as written, was part of a criminal code revamp and may have been law before the 1970s.

The Century Code 12.01-14-04 states: “A person is guilty of a class B misdemeanor if, whether or not acting under color of law, he, by force, or threat of force or by economic coercion, intentionally injures, intimidates, or interferes with another 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.”

“The things I think that make us all angry … it doesn’t fit into the situation as per the statute,” Burdick said of the state legislation already in place. Burdick illustrated his point by saying that actual assaults, for instance, are easier to prove in court than the intent behind an assault.

“There are 14 factors for a judge to think about when sentencing,” Burdick said. “The fact that there is not a specific hate crime law does not mean those factors won’t be taken into account by a judge, which may lead to a more severe penalty.”

Philome, who helped behind the scenes on the citywide hate crime ordinance, said he hoped the 1973 law wouldn’t interfere with the citywide ordinance.

Mahoney and Philome rekindled their relationship after an hourlong meeting on Monday where they dedicated themselves to working together not only to stop hate crimes in the area but to include those who are marginalized so that everyone in Fargo feels welcome, Mahoney said.

Philome also addressed the City Commission where he said North Dakota has ranked the first- or second-highest for the number of hate crimes per 100,000 people from 2012 to 2015, according to FBI statistics.

He urged the city attorney to look into drafting the ordinance to "show we will not tolerate acts of hate within our city limits."

Strand, who strongly favored more research into the ordinance, said, "We are going to find out that North Dakota is one of the worst states in the country to protect people at risk. We're going to find out North Dakota is one of the few states without any protections in place. We're going to find out North Dakota's mindset is, 'we treat all people well.'"

However, he said, the facts, as Philome pointed out, say otherwise.

Even if the 1973 law was found to be a bias crime law, Strand said, it still doesn't go far enough to protect gay people and those with disabilities.

He and Preston also pointed out that the law apparently has never been used.

In another interview this week, Barry Nelson, with the North Dakota Human Rights Coalition, said he has been vocal about the state needing hate crime laws for years.

“We know that hate crimes are on the rise exponentially in our country. We know this is both a symptom and a problem itself,” Nelson said, adding that whenever legislation for hate crime laws is proposed, the bills are shut down and called divisive in the state Legislature.

“So a natural inference is that bias crimes themselves are not bothersome. It's the talking about them that is. Not surprising, these are white men who are making this observation. Bias crimes are happening in North Dakota. How can we begin to deal with the problem if we are unwilling to even talk about it?" Nelson said.

Forum reporter C.S. Hagen contributed to this report