Hate Crime Charges Possible in Delaware Confederate Flag Theft?

As some advocate making it a hate crime to fly the Stars and Bars, Delaware officials are reviewing how to charge three teens accused of stealing it.



Last week, a University of Massachusetts professor advocated in Salon for making it a hate crime to fly the Confederate Flag. This week, New Castle County Police will take another look at the case of three teenagers who are accused of stealing the Stars and Bars from a home in Delaware to determine if the theft of the Confederate flag qualifies as a hate crime.

Last week, Barry Binkley awoke to discover that the Confederate flag he had been flying for 15 years was missing. Not only that, his truck had been vandalized and his boat had “(expletive) u racist” spray-painted on the side. Binkley told the Delaware News Journal that he is not a racist and displayed the flag because it is a symbol that ties him to friends and family in the South, including cousins in North Carolina.

The teenagers arrested for the crime were charged with trespassing, criminal mischief and theft — but not a hate crime. New Castle County Police Officer First Class Tracey Duffy told the News Journal that it doesn’t qualify because a racial slur was not used.

I looked up the Delaware Criminal Code on hate crimes, and discovered that it mentions nothing about racial slurs and, in fact, seems to fit this crime. So I contacted the New Castle County Police and asked if they’d go on the air to discuss it.

New Castle County Lieutenant Colonel Matthew Jamison agrees about the racial slur distinction: “It is not specifically written in the statute, no.”

Jamison spoke to me on The Larry Mendte Show that airs on WILM, Wilmington, and WDOV, Dover, DE. “In reviewing all of the reports, the evidence and so forth, we are going to do a review internally and with the Attorney General’s office to determine if we need to upgrade the charges.”

Under the Delaware Criminal Code, a hate crime can be charged in any case where a person intentionally commits a crime “for the purpose of interfering with the victim’s free exercise or enjoyment of any right, privilege or immunity protected by the First Amendment to the United States Constitution.”

The First Amendment, which protects free speech, protects the display of the Confederate flag. Stealing the flag, it seems, would interfere with that right.

The statute goes on to say that it is a hate crime if the person or persons “Selects the victim because of the victim’s race, religion, color, disability, sexual orientation, gender identity, national origin or ancestry.”

Lt. Colonel Jamison said that the two 18 year olds and the one juvenile charged with the crime are cooperating and that would play into the decision. However, he agreed that everyone should have equal protection under the law.

“As an agency, we respect the First Amendment rights of all of our victims,” Jamison said.

In the wake of emotion that followed the killing of nine African American members of the Emanuel AME Church in Charleston, S.C., there was a renewed call for the Confederate flag at the South Carolina State House to come down and last week it did.

But there has been an aftershock of emotion that has flooded the country with calls to remove the flag from private residences, NASCAR races and even the General Lee car used in The Dukes of Hazzard.

That sentiment about the flag undoubtedly drove the three teens accused in Delaware to attack the home of Barry Binkley and steal his flag.

It will be an interesting call for Delaware Attorney General Matt Denn, who is said to be considering a run for Governor. Does he make a statement that everyone is entitled to equal justice under the law, even when it may be politically unwise and unpopular to do so?

Stay tuned. Jamison says a decision should be coming in a few days.

Follow @LarryMendte on Twitter.