Nebraska Hate Crime Law Scrutinized by State Supreme Court

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March 18, 2016 - 6:45am

Nebraska’s hate crime law needs clarification from the state’s Supreme Court, according to attorneys on both sides of an assault case under appeal.

Joshua Foo took a photo of Langenegger the night of the assault. (Photo courtesy of Joshua Foo)

Omaha's LGBT community held an anti-hate rally following the incident. (Courtesy photo)

Joshua Foo (left) and Jacob Gellinger. (Photo by Bill Kelly, NET News)


Read court documents

filed in the case.

CLICK HERE to read Duncan's appeal brief

CLICK HERE to read the Attorney General's rebuttal.


At the hearing, questions were raised about what factors contribute to defining an assault based on discrimination and the potential need for a definition of “sexual orientation,” which recognizes transgender and increased understanding of more fluid expressions of sexuality.

“Do we have to adopt a new definition or standard?” asked Chief Justice Michael Heavican at one point. Most of the seven judges in session asked what the attorneys arguing opposite sides of the case would add to an opinion that would give guidance to judges in future cases. At other times they wondered aloud if it would require a change in law from the state legislature.

The case triggering the lively discussion arose from an Omaha hate crime case from 2013. Gregory Duncan appealed his felony assault conviction. The Douglas County attorney upped the charge to “assault with discrimination” under the state’s hate crime law after Duncan punched a straight man socializing with two gay male friends in Omaha’s Old Market.

(Watch the oral arguments in State v. Duncan. CLICK HERE)

The incident drew some national media attention and sparked anti-discrimination rallies.

Duncan’s appeal asked the Supreme Court to recognize ambiguity in the hate crime statute which, according to his attorney, raises doubts about whether Duncan’s punch met the definition of a hate crime. To qualify, state statute says the violence must occur “because of" a person’s sexual orientation or someone’s association with someone with a certain sexual orientation. (The law also covers race, national origin, gender, age, and disability.)

Duncan’s attorney, public defender Cindy Tate, told the court she hoped her case would “provide some direction for our courts because there is no direction” established by previous case law related to hate crimes in Nebraska.

The opposing counsel, Nathan Liss for the Nebraska attorney general, added he thought the court “should address the issue and at least explain whether or not we need more clarification” when issuing its final opinion on Duncan’s appeal.

The attack occurred on Halloween weekend in 2013.

Ryan Langenegger and two friends, Joshua Foo and Jacob Gellinger, were eating at a fast-food restaurant when they overheard three other male customers, identified later as Duncan, Joey Adriano and Paul Larson, using abusive words commonly used to insult gays.

At the time Gellinger wore a dress, heels, and make-up in the persona known as “Fendi Blu.” He takes on the female personality for modeling jobs and socializing. Both he and Foo are gay.

When Langenegger and friends left the restaurant to avoid a confrontation "we thought we were safe to go to our car,” Langenegger said. “Turns out we weren’t.”

The other men followed and resumed the harassment.

The brief filed in the Supreme Court case by the Nebraska attorney general's office described what happened next.

“When Joshua and Jacob got outside, Joshua helped Jacob put on his high heels and then Ryan came out at the same time as Adriano, Duncan and Larson. Ryan, Joshua and Jacob started discussing whether they should take an alternate route to their car, and then Adriano came up to them and called them 'q****' and 'f******' and again looked at his friends and said, 'Should I?' at which point Duncan and Larson started laughing.”

Duncan “came in and just sucker-punched Ryan,” Foo recalled in an interview with NET News. “I just remember the sound of him hitting Ryan. Sounded like someone punching through a pumpkin.”

His face and shirt covered with blood, Langenegger said he remembers saying “why would you do that?” Seeing the man raising his fists again, Langenegger replied “I am not going to fight you” and watched as Duncan and his friends walked away.

The attorney general’s court filing states Ryan and his friends testified in the district court trial “both before and after the punch, Ryan never raised his voice and he never threatened, pushed, or had any other physical contact with anyone in Duncan's group.”

In court Duncan claimed he threw the punch in response to threatening actions taken by Langenegger.

The jury convicted Duncan of Third Degree Assault, Discrimination Based, a Class IV Felony. Douglas District Court Judge Leigh Ann Retelsdorf sentenced Duncan to up to 18 months in jail. He was released in January and claims the conviction "destroyed his life."

In his appeal Duncan claimed there was “insufficient evidence” to justify bringing a hate crime charge.

Depending on differing accounts Duncan either did not engage in the offensive name-calling, or at the very least, did not participate to the degree of Adriano and Larson. Attorney Tate argued, absent those cues, it was unclear why Duncan chose to throw the punch. It’s unfair to make someone prove they did not take an action “because of” their hatred for a segment of the population like homosexuals.

“What we have right now is a statute that is requiring us to delve into a defendant's motive,” Tate said. “We've never done that before.”

Judge John Wright interrupted, noting “in a hate crime though, (motive) would clearly be an important element.”

The jury rejected Duncan’s explanation that he and his group felt threatened by Langenegger, having been contradicted by several witnesses.

Tate told the court “the question that we've got here is we don't have a test and we don't have a standard” in the law for what constitutes an actual hate crime.

Liss, for the Nebraska attorney general, argued the law is clear and, “given the context of the evidence” presented at the original trial, the primary motive was clearly proven to be bias against gays.

“When we look at this case, you have (Duncan and his friends) looking and laughing at (Langenegger’s group) in the restaurant,” Liss told the court. “When Jacob and Joshua are leaving they hear derogatory comments such as ‘f**’ being made coming from Duncan’s table.”

Langenegger being straight does not factor into whether it’s a hate crime since Nebraska law specifies that those in the company of specific groups deserve protection as well.

“In this case…the evidence was clearly sufficient for the jury to infer that Duncan assaulted Ryan Langenegger because of either his sexual orientation or his association with a person of a certain sexual orientation,” the brief argued.

Liss added even if the law needs adjustment there is nothing in current statute that would justify reversing the jury’s verdict in this case.

He told the judges “if we need more, for clarification purposes, then yes I think we should do it so that we don't have problems in future cases in the trial courts don’t know where they stand.  And that's probably the safest route in this case.”

Duncan also argued the instructions given his jury unfairly influenced the verdict. Jurors were provided a definition of “sexual orientation” crafted by Judge Retelsdorf based on a desk dictionary and other state laws. It was necessary because no definition of “sexual orientation” exists in Nebraska law. Duncan argues no definition was needed and the court should have relied on a “common understanding” of the term.

The attorney general argued the instructions did not influence the outcome of the trial, but conceded the state might consider a more scholarly and legally sound definition of “sexual orientation.”

“I don’t know if that is actually up to speed with respect to where we are as society with the transgender and transsexual stuff is coming into the fray,” Liss told the court.

Adding a definition into state law would be the responsibility of the state legislature.

For those impacted by the original assault, there is only one satisfactory outcome.

“This needs to be upheld,” said Joshua Foo. "I want to know I have protection. Like I said, anyone should be able to walk down the street and feel safe, no matter who you are, what you are wearing or who you are with.”

Whether Duncan’s conviction is upheld is now under discussion by the seven judges. Final opinions from the court routinely take months to write and be made public.



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