CRIMINAL DIVISION

82 tonia Ave N,W,

Suite 450
Grand Rapids, Ml 49503-3022
Telephone; (616) 632-6710
FaxV(616) 632-6714 ~ -' - CHRISTOPHER BECKER
Prosecutor

MONICA M. JANISKEE
Chief Assistant Prosecutor

The Kent County Sheriffs Department submitted a request to charge one count of ethnic
intimidation (MCL 750.147b), and one count of littering on private property (MCL 750.552a)
regarding a number of anti-Semitic flyers being left in the Crystal Springs neighborhood over
this past weekend. After a complete review of the submitted report, and reviewing the
applicable law/ we are unable to file any criminal charges out of this incident.

An individual commits the criminal offense of ethnic intimidation in Michigan if that person
"malidously, with specific intent to intimidate or harass a person because of their race/ color,
religion/ gender or national origin either (a) causes physica! contact with another person, (b)
damages, destroys, or defaces property belonging to that person/ or (c) threatens to do either
of the above with reasonable cause to believe that act would occur. When examining the facts
of what occurred this weekend alongside the requirements of this statute/ we cannot prove
ethnic intimidation occurred. First/ there was no threat to damage property or threat to cause
physical contact with anyone. While the flyers contained anti-Semitic tropes about a variety of
topics, the flyers did not make any threats of harm or damage to a person or property
belonging to a person to provide reasonable cause to believe that such an act would occur. In
addition/ the law requires a specific intent to harass a person or persons; there is no evidence
that a specific home/ person/ or family in the neighborhood was targeted. It appears from the
evidence available that these flyers were simply dropped in driveways around the
neighborhood. If there had been a specific target, a stalking charge maybe appropriate, but
there does not appear to be such a target in this instance. In addition/ this Is the only incident
reported of such a nature/ whereas the criminal offense of stalking requires two or more
incidents that would make a reasonable person feel harassed/ threatened, intimidated, or
molested. As a result, we find no basis for a stalking charge on these facts either.

Michigan law also prohibits littering on private property under MCL 750.552a. Specifically, the
law prevents a person from dumping, depositing, or placing filth, garbage/ or refuse on the
grounds or premises of another person without specific permission of said person/" While the
message conveyed in these flyers can certainly be considered "fi!th" regarding the message it
promotes/the law requires us to consider the ordinary meaning of the words used in the
context of the statute to determine the Legislature s intent in proscribing such conduct.
Considering the common usage of the language in the littering statute/ we cannot prove that
the flyers fit the definition of filth, garbage/ or refuse to support prosecution of the offense.
Clearly/ these flyers are attempting to convey a message. Unlike an individual who drops a used
candy bar wrapper on the property of another person, a person who distributes a ftyer
containing a message has not discarded "garbage" as the term is generally understood—even if
the message contained therein is offensive or derogatory, as it was here. Offensive speech
without a true threat of unlawful action is protected under the First Amendment. As another
example, every election season, political parties leave all kinds of written materials on doors in
neighborhoods; even if one disagrees with the message in those materials or finds it offensive/
the party's speech is constitutionally protected. While the method and message conveyed in
this instance is very different than what occurs in an election year, the conduct remains in the
realm of protected speech.

Decisions to fi!e criminal charges are often very fact specific. There may be a scenario where
similar behavior leads to criminal charges, I would not take from this decision that this behavior
is always protected or approved of in any way. The flyers are reprehensible. However, I must
follow the law/ and when examining these facts under the controlling legal principles,! am
unable to find any appropriate crimina! charges for the individual's conduct.

Chris Becker
Kent County Prosecutor