Two people approached a Tesla parked on the Lower East Side of Manhattan one night last month and spray-painted a bright red swastika on it. A few weeks later, another pair walked up to a Tesla parked in Brooklyn and carved a swastika on its door, along with the word “Nazis.”
The Police Department is searching for the vandals, whose actions it is investigating as hate crimes. But who exactly do they purportedly hate?
Many people would find it hard to imagine a more clear-cut example of a hate crime than vandalizing someone else’s property with a swastika, which has for almost a century been a terrifying and widely recognized symbol used to threaten Jews and other minorities.
But given the rash of protests targeting the electric car company that have taken place nationwide, it appears clear that the vandals in New York City were using the swastikas to attack Elon Musk, the Tesla founder and a top adviser to President Trump — not to broadcast their own support of Nazism.
Mr. Musk, who has been widely criticized for making two arm gestures that many saw as Nazi salutes at a Trump rally on Inauguration Day, has said he sees the vandalism, which has occurred in New York and elsewhere, as a definite hate crime.
“Anyone who scrawls a swastika on a Tesla has obviously committed a hate crime,” Mr. Musk wrote on social media this week.
The use of swastikas by critics of Mr. Musk — who is not Jewish or a member of any other minority group — has put law enforcement in a bind, legal scholars said.
The question boils down to this: Is it a hate crime to use a swastika to denounce someone you think is a Nazi, instead of using it to express your own support for Nazis? And is it a hate crime if the perpetrator knows nothing about the person who owns the car, and is instead motivated by animosity toward an automaker and its owner?
“Not every swastika is indicative of a hate crime,” said Richard A. Wilson, a professor at the University of Connecticut School of Law. “It depends on the context, the intended message and intended target.”
The episodes being investigated by the Police Department are part of a cascade of public anger aimed at Tesla and Mr. Musk, who is the world’s richest man and an influential figure in the Trump administration.
That anger has, in some cases, spilled over into vandalism and arson targeting Tesla vehicles and facilities across the United States. Federal authorities have described the episodes as domestic terrorism, and law enforcement authorities in New York and elsewhere have said they are being investigated as hate crimes.
Some of the episodes, like the defacing of private property, appear to be straightforward crimes in their own right, Professor Wilson said. But depending on how local laws are written, they may not be hate crimes.
If law enforcement cannot establish that the vandalism was motivated by animosity toward someone’s race or religion, for example, then the act “might be political speech — still a crime of damaging personal property, just not a hate crime,” he said.
And if prosecutors charge someone with a hate crime for such activity, they could fail to secure a conviction, said Professor Wilson. “I note here that ‘political ideology’ is not a protected category,” he added.
In New York, a hate crime is defined as “a crime that is motivated in whole or substantial part by bias against certain personal characteristics,” according to the city’s Office for the Prevention of Hate Crimes.
“If it’s determined that the crime was motivated by bias, then hate crime charges may be added to the original charge.”
The personal characteristics covered under the law include race, religion, ethnicity, nationality, sex, sexual orientation, disability, age, and gender identity or expression, the office said.
They do not include political beliefs, and the Police Department declined to explain why the vandalism of Teslas was being investigated as hate crimes.
In a handful of places, political affiliation is a protected category, including in Washington, D.C., said Brian Levin, the founder of the Center for the Study of Hate and Extremism at California State University, San Bernardino.
Last month, the Washington police said they had begun an investigation into “political hate speech” after someone wrote “Ask me about my support of Nazis” on a Tesla.
Mr. Musk has been widely criticized since Inauguration Day, when he was filmed placing his hand over his heart and then thrusting his arm straight into the air ahead of him at an upward angle. He then did it a second time.
Mr. Musk has denied that he was giving a Nazi salute and has mocked the accusation, saying, “The ‘everyone is Hitler’ attack is sooo tired” and “Some people will Goebbels anything down!,” referring to another Nazi leader.
Since then, graffiti and stickers that show Mr. Musk making the gesture, that describe him as a Nazi or a fascist, or that call the Tesla a “Swasticar” have spread on social media and popped up on walls, lampposts and private property in New York and other cities.
Professor Levin said it was “disturbing” that “the social norms have degraded to the point where the guardrails against using the swastika are just gone.”
But he said people across the ideological spectrum — and Mr. Musk specifically — had played a role in the deterioration of those norms.
Not only did Mr. Musk make the straight-arm salute on Inauguration Day, said Professor Levin. He has also vocally supported the far-right Alternative for Germany party, posted and then quickly deleted a tweet that falsely claimed Adolf Hitler did not kill millions of people and said Germany had “too much of a focus on past guilt.”
“As vile and disgusting as it is to use the symbol of the swastika, the whole discourse around the Holocaust and Nazi Germany has been minimized by people across the ideological spectrum,” said Professor Levin.
“If Elon Musk can escape any kind of contrition for doing a straight-arm salute by saying he meant to convey another message,” he added, “then people who attack him using a symbol from the Nazi regime can probably use that defense as well.”