Philip Holloway: As a Southerner, I think South Carolina is capable of prosecuting the horrific church killings
He says Confederate flag should be taken down, and gun rules may need some changes
Editor’s Note: Philip Holloway, a CNN legal analyst, is a criminal defense lawyer who heads his own firm in Cobb County, Georgia. A former prosecutor and adjunct professor of criminal justice, he is former president of the Cobb County Bar Association’s criminal law section. Follow him on Twitter: @PhilHollowayEsq The opinions expressed in this commentary are his.
Along with every other human being capable of empathy I was profoundly saddened to learn of the massacre in Charleston of nine African-American churchgoers at the hands of one white male driven, apparently, by racial hatred.
In the days following this evil act many questions arose. Among them are:
1. Should the federal government prosecute this case as a hate crime or as terrorism since South Carolina does not have any hate crime legislation?
2. Should the Confederate flag be removed from the grounds of the South Carolina Capitol?
3. Do we need more laws concerning gun control?
As a Southerner who is proud of my heritage, as a criminal lawyer, as a fan of the Second Amendment and as a continuing student of criminology, my answers to these questions are 1: No, 2: Yes 3: No, but. …
Hate crime, terrorism or mass murder?
There is simply no need for the federal government to prosecute this case as a hate crime, an act of terrorism or anything else.
It is most certainly true that this crime could be prosecuted by the federal authorities, and the descriptions of it as a “hate crime” and as “terrorism” are accurate both in the legal sense and in the vernacular, but the criminal justice system in the state of South Carolina is well capable of dealing with this case.
The accused has reportedly confessed, the evidence is strong, and even the governor is calling for the death penalty. It doesn’t get much worse than that for anyone accused of a crime.
With that said, there is a practical reason why South Carolina – and only South Carolina – needs to handle this case. An aggressive, forceful and relentless state prosecution will send a message loud and clear that “this outrageous and vile act of racism and hate does not reflect who we are as Southerners, as human beings and as a state. We don’t need the feds – we got this and we will deliver justice.”
A successful prosecution will not only help bring justice for the victims of this violence but will help quell the stereotype that Southerners still harbor deep-seated racial hatred on a mass basis. Nothing could be further from the truth.
Despite the absence of any hate crime laws in South Carolina, there is nothing whatsoever preventing a South Carolina prosecutor from telling a jury that racial hatred was the killer’s motive. Despite the absence of hate crime laws, the defendant is likely on the express lane to the execution chamber.
Confederate flag: Let it go
As for the Confederate flag at the Capitol, it should be removed at once. It’s time to let it go.
As a young boy growing up in the Deep South, the “rebel flag” was everywhere. It was part of the Georgia state flag, it was on license plates, it was flown in people’s yards, and it hung on my bedroom wall.
To me, my friends and family, the rebel flag was not a symbol of bigotry, hatred, racism or even of slavery. To this day I do not see those things in the rebel flag. I see it as a symbol of heritage and nothing more. I have ancestors who fought for the Confederacy. And my family’s military service can be found in virtually every conflict since the Civil War – in service of the United States of America.
That being said, the problem with the rebel flag, flown by the state government of South Carolina, is that many people – people whom I love and care for – do not see that flag the way I do. Many people see it as a slap in the face. If we are going to be an inclusive society – a society that values all people and values diversity, then the flag must come down – at least as an official government symbol.
I recently asked an African-American friend how he feels when he sees the rebel flag. His response: “Well, a little anger. And in some places fear. I think that the person or place that flies it doesn’t want me around or to be there. I understand the history of the flag. But it was turned into a symbol of hate and fear. My attitude changes when I see it.”
If for no other reason than respect for other people, the government needs to be out of the Confederate flag business.
More gun laws?
Turning finally to the issue of whether more gun control laws are needed, my answer is a definite “No, but. …”
To blame the Charleston massacre on the gun is like blaming my bacon double cheeseburger for my high cholesterol. Guns do not fire themselves. The blame lies with the shooter and nowhere else. Period. But some common-sense measures could be implemented fairly easily and, while they may or may not have prevented this tragedy, they should be considered.
Currently someone can walk into a gun store and legally purchase a gun unless the buyer has been convicted of or charged with a felony. Why shouldn’t the federally mandated forms also ask?
“Are you currently out on bail for any misdemeanor offense or have pending criminal charges of any type?”
If the answer is yes, then no sale should be permitted until those charges are resolved, as it is often the case that misdemeanor charges get upgraded to felony charges. In addition, it can and should be made a condition of any bail bond for a felony or misdemeanor involving guns, violence or drugs that the person is prohibited, while on bail, from possessing any firearm.
Dylann Roof, who is accused in the Charleston killings, was on bail for misdemeanor charges, and there was apparently no bond condition prohibiting him from purchasing or possessing a firearm. Additionally there should be reasonable legislative limits, perhaps criminal sanctions, on gifts of firearms to people with a history of mental illness or a significant criminal history and mandatory training requirements for concealed carry permit holders in every state that issues such permits.
These are simple legislative fixes that might – just might – keep a gun out of the hands of the next mass murderer. Of course, there are no guarantees, and criminals by definition don’t obey the law.
The Second Amendment is an important one and cannot and should not be ignored. The Bill of Rights means a great deal to America and that includes the right to keep and bear arms. No amount of legislation will stop criminals from being criminals.
In fact it is worth noting that in South Carolina a concealed carry permit holder may possess a firearm in a church so long as the person has the consent of the church. South Carolina issues concealed weapons permits to individuals who can pass a background check, show proof of the appropriate level of firearm proficiency training and meet other statutory requirements.
Still, even with a permit certain places remain “off-limits” for purposes of carrying a firearm. One such off-limits place is a church. However, the concealed carry law in South Carolina gives individual churches the option to allow concealed weapon permit holders if the church desires to do so. Perhaps a better alternative to more gun control laws is to relax the prohibitions faced by law-abiding citizens who wish to exercise their constitutional right to keep and bear arms.
I write this on Father’s Day 2015 in memory of the fathers lost in Charleston. I also write in memory of my late father, Dr. Wilmer Holloway, who in the 1960s as a member of the school board in Wilkinson County, Georgia, was vilified by a small minority of local Klansmen who ransacked our home and threatened my family after he wrote a courageous op-ed in the local paper urging desegregation of the local schools.
The verdict is in, and James Holmes has been found guilty of first-degree murder for killing 12 people in a movie theater in July 2012. The Colorado jury predictably rejected his insanity defense, but that is not the end of the story. That same jury will now begin determining whether he should be executed or serve the rest of his life in prison. And, as a result, America once again finds itself in a virtually unique discussion among rich nations on whether capital punishment should apply to one of its citizens.