Substitute For

HOUSE BILL NO. 5400

"The Michigan penal code,"

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

the people of the state of michigan enact:

Sec. 147b. (1) A person An individual is guilty of ethnic intimidation a hate crime if that person individual, 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:intentionally does any of the following to an individual based in whole or in part on an actual or perceived characteristic of that individual listed under subsection (2), regardless of the existence of any other motivating factors:

(a) Causes physical contact with Uses force or violence against another person.individual.

(b) Causes bodily injury to another individual.

(d) (b) Damages, destroys, or defaces any real or personal property of another person.individual without the consent of the individual.

(e) (c) Threatens, by word or act, to do an act described in subdivision (a) or (b), if there is reasonable cause to believe that an act described in subdivision (a) or (b) will occur.Makes a true threat to engage in conduct described under subdivisions (a) to (d).

(2) The actual or perceived characteristics of another individual referenced under subsection (1) include all of the following:

(a) Race or color.

(b) Religion.

(d) Sexual orientation.

(e) Gender identity or expression.

(f) Physical or mental disability.

(g) Age.

(h) Ethnicity.

(i) National origin.

(j) Association or affiliation with an individual or group of individuals in whole or in part based on a characteristic described under subdivisions (a) to (i).

(3) (2) Ethnic intimidation An individual who violates this section is guilty of a crime punishable as follows:

(a) An individual who commits a first violation of subsection (1)(e) is guilty of a felony punishable by imprisonment for not more than 2 years , or by a fine of not more than $5,000.00, or both.

(b) An individual who commits either of the following violations is guilty of a felony punishable by imprisonment for not more than 5 years or a fine of not more than $10,000.00, or both:

(i) A first violation of subsection (1)(a), (b), (c), or (d).

(ii) A second or subsequent violation of subsection (1)(e).

(c) An individual who commits any of the following violations is guilty of a felony punishable by imprisonment for not more than 10 years or a fine of not more than $15,000.00, or both:

(i) A second or subsequent violation of subsection (1)(a), (b), (c), or (d).

(ii) A violation of subsection (1) committed in concert with 1 or more individuals.

(iii) A violation of subsection (1) committed against a victim who is less than 18 years of age by an individual who is 19 years of age or older.

(iv) A violation of subsection (1) committed while the individual is in possession of a firearm or other dangerous weapon.

(4) (3) Regardless of the existence or outcome of any criminal prosecution, a person an individual who suffers injury to his or her person or damage to his or her property damage as a result of ethnic intimidation a hate crime may bring a civil cause of action against the person individual 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, $25,000.00, whichever is greater.

(b) Reasonable attorney fees and costs.

(5) If the prosecuting attorney intends to seek an enhanced sentence based upon the defendant having 1 or more prior convictions under subsection (3)(b)(ii) or (c)(i), the prosecuting attorney shall include on the complaint and information a statement listing the prior conviction or convictions. The existence of the defendant's prior conviction or convictions must be determined by the court, without a jury, at sentencing or at a separate hearing for that purpose before sentencing. The existence of a prior conviction may be established by any evidence relevant for that purpose, including, but not limited to, 1 or more of the following:

(a) A copy of the judgment of conviction.

(b) A transcript of a prior trial, plea-taking, or sentencing.

(d) The defendant's statement.

(6) In lieu of or in addition to the penalties described in subsection (3)(a), the court may, if the defendant consents, impose an alternative sentence described under this subsection. In determining the suitability of an alternative sentence described under this subsection, the court shall consider the criminal history of the offender, the impact of the offense on the victim and wider community, the availability of the alternative sentence, and the nature of the violation. An alternative sentence may, if the entity chosen for community service is amenable, include an order requiring the offender to complete a period of community service intended to enhance the offender's understanding of the impact of the offense upon the victim and wider community.

(7) The court may, if the defendant consents, reduce any penalty imposed under subsection (3)(b) or (c) by not more than 20% and impose an alternative sentence described under this subsection. In determining the suitability of an alternative sentence described under this subsection, the court shall consider the criminal history of the offender, the impact of the offense on the victim and wider community, the availability of the alternative sentence, and the nature of the violation. An alternative sentence may, if the entity chosen for community service is amenable, include an order requiring the offender to complete a period of community service intended to enhance the offender's understanding of the impact of the offense upon the victim and wider community.

(8) The court may order a sentence imposed for a violation of this section be served consecutively to a sentence imposed for any other crime, including any other violation of law arising out of the same transaction as the violation of this section.

(9) A criminal penalty provided for under this section may be imposed in addition to any penalty that may be imposed for any other criminal offense arising from the same conduct or for any contempt of court arising from the same conduct.

(10) This section does not enjoin any individual's exercise of the constitutional right to free speech.

(11) As used in this section:

(a) "Reckless disregard" means to consciously disregard a substantial and unjustifiable risk that a statement will be viewed as threatening violence.

(b) "Stalk" means stalking as that term is defined in section 411h.

(c) "True threat" means a statement in which the speaker means to communicate a serious expression of an intent to commit an act of unlawful violence to a particular individual or group of individuals, including unlawful property damage to the property of a particular individual or group of individuals. A true threat includes such a communication made with reckless disregard. A speaker is not liable for communicating a true threat if the speaker was unaware that the individual or the group of individuals could regard the statement as threatening violence.