East Bay Farca case inspires state bill to bolster hate crimes law

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East Bay Farca case inspires state bill to bolster hate crimes law

GABE STUTMAN | J. STAFF

When detective Greg Mahan learned someone was posting online threats to murder Jews from a bungalow near the North Concord BART station, 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 their 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 account posted. 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 the attention 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 Congregation B’nai Tikvah in Walnut Creek — 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 domestic terror than into global terror groups. Recently, the Department of Homeland Security released its 2020 terorrism 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 legislation, citing pending litigation. But the bill has the support of the county DA Diana Becton, who helped write it.

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.

Though Mahan suspected the felony criminal threats

“One can define terrorism in many different ways. I believe threats of this nature are terrorism.”

Rebecca Bauer-Kahan

CONCORD POLICE DEPARTMENT AR-15-style assault rifle and ammunition magazines recovered during a search of Ross Farca’s Concord home in June 2019.