When detective Greg Mahan learned that someone located in a bungalow near the North Concord BART station was posting online threats to murder Jews, he thought about what crime, exactly, was being committed.
“I currently own an AR15 semi auto rifle,” an account linked to a screen name “Adolf Hitler (((6 MILLION)))” posted last June on the video-game networking site Steam. “I would probably get a body count of like 30 Kikes and then like 5 police officers,” the person wrote, “because I would also decide to fight to the death.”
According to California’s law against making criminal threats, penal code No. 422, it is forbidden to threaten to commit a violent crime against another person — with the intent that the statement be taken as a threat. Yet another law (422.6), this one relating to hate crimes, forbids making threats based on “the perceived characteristics of the victim” that may interfere with that person’s constitutionally protected rights, such as freedom of religion.
“If you read [422.6], the law specifies individuals, but it expands it to a group of people,” said Mahan, a member of the Concord Police Department’s major crime unit. Thus, the posts could be read as, he paraphrased: “I’m going to kill all the Jewish people, and all the cops.”
To Mahan, the hate crimes law seemed to best fit the alleged crime.
The person behind the Steam account, Concord resident Ross Farca, according to police, zeroed in on Jews. “I just would need a better target than … some random synagogue with kikes that aren’t really a threat,” the post read. Elsewhere it professed infatuation with Nazism and racial violence.
But the district attorney’s office in Contra Costa County did not charge Farca under 422.6, the hate crimes law. Instead it charged him under 422, the criminal threats law. That provision is not about civil rights or a protected class, but is a general admonition against threatening anyone, no matter who.
The hate crimes statute is a lesser crime, only a misdemeanor. The criminal-threats provision can be charged as a felony.
“You charge them with whatever you can,” Mahan explained. “We don’t have to overcharge or mischarge people. But especially if you think they’re a danger … [the main question is] how can we protect the public?”
The discrepancy in the penal code caught Mahan’s attention, and that of the district attorney in Contra Costa County. Now it has the attention of state lawmakers, too.
Last month, Rebecca Bauer-Kahan, a Democratic member of the state Assembly whose district runs from Livermore to Orinda and Walnut Creek, joined with fellow Assemblymember Timothy Grayson, a Republican-turned-Democrat whose district encompasses parts of the East Bay and North Bay, to introduce a bill they say will help “protect communities from acts of domestic terrorism.”
Assembly Bill 2925 aims to change the language on 422.6, the hate crimes law, to give prosecutors the ability to charge threats — and certain vandalism and property destruction cases — as felony civil-rights crimes.
“When you make a threat against an individual, it can be charged as a felony, but against these classes, it can’t,” said Bauer-Kahan, a graduate of Georgetown Law with a background in criminal defense. “That’s a fascinating discrepancy in the laws, as far as I’m concerned.”
Bauer-Kahan, who sits on the board of her Walnut Creek synagogue — and whose brother is Rabbi Ryan Bauer of Congregation Emanu-El in San Francisco — is highly attuned to the Jewish community’s anxieties in the wake of the Farca case. She said her office got nervous phone calls after the then 23-year-old was released on bail days after his June 10 arrest. “The question became: Why was he out?” she said.
Around the country, homegrown extremism is on the rise, and often proliferates in the dark corners of the internet. In 2018, reports of personal attacks motivated by bias or prejudice reached a 16-year high, according to the FBI.
Despite a flush of government resources devoted to fighting foreign terrorism after 9/11, the FBI last year reported that it conducted more investigations into alleged domestic terrorists than into global terror groups. Recently, the Department of Homeland Security released its 2020 terrorism assessment. It labeled threats from domestic extremists, including white supremacists, “high” and threats from entities such as ISIS and al-Qaida “low.”
Some opponents of certain domestic terrorism laws, including a federal law to criminalize domestic terrorism, cite First Amendment and free-speech concerns. Others say a new constellation of laws is needed to address a growing problem.
The Contra Costa district attorney’s office would not comment on the pending litigation. But the bill has the support of county DA Diana Becton, who helped write it.
Though Mahan suspected the felony criminal threats charge levied against Farca would prove unwieldy to prosecute, the case is bolstered by two weapons charges, both more serious than the threats charge.
According to police, a search of Farca’s Concord home at the time of his arrest turned up an assault-style rifle that was illegally assembled (in addition to 13 high-capacity magazines, paper targets, a sword, camouflage clothing and what Mahan described as a “tremendous amount of anti-Jewish hate stuff,” including pro-Nazi and “pro-concentration camp” materials).
One can define terrorism in many different ways. I believe threats of this nature are terrorism.
Farca’s attorney, Joseph Tully, has said his client is autistic and that he did not mean for his threats to be taken seriously. Autism is not known to increase violent behavior.
Of the illegal assault weapon felony, Mahan said, “that’s probably going to be the strongest charge. It’s a physical item that actually exists, that we found.”
Introduced Feb. 21, AB 2925 was co-authored by a half-dozen members of the California Legislative Jewish Caucus, including Marc Berman, whose district includes parts of the Peninsula and Silicon Valley. On March 5 it was referred to the Assembly’s Public Safety Committee. The bill is in its infancy and no votes have yet been taken or scheduled.
The bill proposes changing the hate crimes law from a misdemeanor into a “wobbler” — a crime that could be prosecuted either as a misdemeanor or a felony, depending on circumstances. If charged as a felony, the crime could be punishable by up to three years in jail, and could add $25,000 or more to the bail amount. If cash bail is eliminated in California (pending a voter referendum in seven months), a judge will consider the felony charge in determining whether the accused poses a threat to public safety, Bauer-Kahan said.
A supporter of eliminating cash bail, Bauer-Kahan said this about the Farca case: “If the only question was whether he posed an imminent danger, I think he would have been held.” Instead, bail was set at $125,000 and posted days after Farca’s arrest with the help of a bail bonds company.
Mahan believes a stronger hate crimes law in place would have given law enforcement an additional tool, which might have increased the bail amount. Then perhaps Farca would have remained in custody.
“Higher bail would have helped us,” Mahan said.
The new legislation is similar to an Assembly bill (AB 907) introduced last year that would have created a new prohibition against criminal threats targeting places of worship. That legislation earned unanimous support in the assembly but stalled in the state Senate.
Bauer-Kahan stressed that if passed, AB 2925 would be applicable not only to threats against Jews, but also to threats against other protected classes and locations, such as LGBTQ centers, black churches and women’s health clinics.
“One can define terrorism in many different ways,” Bauer-Kahan said. “I believe threats of this nature are terrorism.”
Mahan called the bill a “pretty darn good idea.”
Farca, 24, now being held without bail following a fourth felony charge, currently faces three felonies in Contra Costa County and one in the Northern District of California stemming from allegedly lying to the U.S. government in an effort to join the Army in 2017. He was scheduled to appear in federal court in Oakland on March 13 for a scheduling hearing.
“We live in a day and time when this kind of extremism is on the rise,” Bauer-Kahan said. “It’s incumbent upon us to do everything we can to keep our community safe.”