by Brett Barrouquere, Associated Press
LOUISVILLE, Ky. (AP)—A federal judge has turned away a challenge to a federal hate crimes law and allowed jury selection to start Tuesday for two eastern Kentucky men charged under the statute in an attack on a gay man.
U.S. District Judge Gregory Van Tatenhove ruled that 20-year-old Anthony Ray Jenkins of Partridge and his cousin, 37-year-old David Jason Jenkins of Cumberland may stand trial on charges of kidnapping, assault and violating the hate crimes law during the attack. Both men have pleaded not guilty to attacking, Kevin Pennington, on April 4, 2011 at Kingdom Come State Park in Harlan County.
Attorneys began picking jurors Tuesday morning in federal court in London, Ky.
The two men sought to have the case dismissed, saying Congress went too far in creating a protected class of people when it passed the legislation in 2009. Defense attorneys said the law goes beyond U.S. Supreme Court decisions simply recognizing the rights of homosexuals to conduct their lives without government interference and makes them a protected class that receives preferential treatment.
Van Tatenhove, in a 32-page ruling issued Monday afternoon, found that Congress was within its bounds when it enacted the law.
“From the face of the statute it is clear that Congress has employed the full breadth of its regulatory power to ensure that this jurisdictional hook is sufficient,” Van Tatenhove wrote.
Federal prosecutors say this is the first federal case in the nation charging a violation of the sexual orientation section of the Matthew Shepard-James Byrd Jr. Hate Crimes Prevention Act, which was passed in 2009.
Mable Ashley Jenkins and Alexis LeeAnn Jenkins, both 19, pleaded guilty in April to aiding and abetting the kidnapping and hate crime assault. Prosecutors say those pleas were the first convictions under that section of the law.
Alexis Jenkins is married to Anthony Jenkins, and Mable Jenkins is his sister.
Pennington was invited by Mable and Alexis Jenkins to go on an evening drive, but once he saw David and Anthony Jenkins in the truck, he asked to be taken home, according to an FBI affidavit. At one point the truck stopped in front of a downed tree and Anthony and David Jenkins pulled Pennington out of the truck and attacked him, according to the affidavit.
The men hit him and kicked him while “making anti-homosexual statements,” according to the affidavit.
Pennington escaped, ran to a ranger station, broke a window to get inside and called police. Pennington suffered injuries to his back, face, neck and ear in the attack at the mountaintop Appalachian park.