Clayton J. Perkins won in State v. Boettger, No. 115,387 (Kan. October 25, 2019) and State v. Johnson, No. 116,453 (Kan. October 25, 2019), each involving whether a conviction for reckless criminal threat would violate the First Amendment. The state charged that Mr. Boettger made a threat to commit violence made in reckless disregard of causing fear. The state charged that Mr. Johnson made a threat to commit violence with intent to commit fear or made in reckless disregard of causing fear.
The KSC reviewed the overbreadth doctrine under the First Amendment and the potential for a statute that criminalizes reckless speech to criminalize protected speech. It recognized that the SCOTUS has held that this tension can be present with "true threats" and distinguishing between political hyperbole and true threats. After review of SCOTUS precedent (and other courts' interpretation of that precedent), the KSC concluded that Virginia v. Black, 538 U.S. 343 (2003) requires that a threat be made with intent to cause fear in order to be constitutionally prosecutable:
Black found specific intent was necessary to convict under the Virginia cross-burning statute at issue in that case. The Court stated "[i]ntimidation in the constitutionally proscribable sense of the word is a type of true threat, where a speaker directs a threat to a person or group of persons with the intent of placing the victim in fear of bodily harm or death." It strains the plain meaning of the Court's language to conclude that "statements where the speaker means to communicate a serious expression of an intent to commit an act of unlawful violence to a particular individual or group of individuals" are not made "with the intent of placing the [particular individual or group of individuals] in fear of bodily harm or death." A person who "means to communicate a serious expression of an intent to commit an act of unlawful violence" is aware of the illegality of the violence he or she purportedly intends to commit and makes a serious expression of that intent, which he or she meant to communicate. (Emphasis added.) This definition conveys that the conduct is intentional.
Under Black, the portion of K.S.A. 2018 Supp. 21-5415(a)(1) allowing for a conviction if a threat of violence is made in reckless disregard for causing fear causes the statute to be unconstitutionally overbroad because it can apply to statements made without the intent to cause fear of violence. See K.S.A. 2018 Supp. 21-5202(h) and (j) (defining "intentionally" and "recklessly" in Kansas criminal statutes). The provision significantly targets protected activity. And its language provides no basis for distinguishing circumstances where the speech is constitutionally protected from those where the speech does not warrant protection under the First Amendment.
Because Mr. Boettger was only convicted of reckless criminal threat, the KSC reversed his conviction.
In Johnson, the KSC was faced with a slightly different procedural posture, because the state had charged Mr. Johnson with intentional or reckless criminal threat. The state argued that, because evidence supported a conviction for intentional criminal threat, any error should be harmless in the companion case. The KSC disagreed:
The district court instructed the jury on both forms of criminal threat and accurately recited the definitions of "intentionally" and "recklessly" in K.S.A. 2018 Supp. 21-5202(h) and (j). But neither the jury instructions nor the State's arguments steered the jury toward convicting Johnson based solely on one mental state or the other. Nor did the judge instruct the jury it had to agree unanimously on whether Johnson acted intentionally or recklessly. And the verdict form did not require the jury to make a specific finding. Thus, the record provides no basis for us to discern whether the jury concluded that the State had proved beyond a reasonable doubt that Johnson acted intentionally.
Nor, despite the State's argument, does a review of the evidence. The State asserts that given Johnson's threat to kill his mother, "[n]o jury would find this threat was anything other than intentionally made with the intent to place another in fear." But the State fails to address conflicting evidence at trial, particularly Walker's testimony that the family routinely threatened to kill each other but no one took it literally. Walker also testified she did not recall Johnson threatening to kill her or burn down the house. And she thought the officers may have misinterpreted what she said because she was in a highly excited state and had been discharged from the hospital two days earlier and was still under the effect of morphine. Walker also made it clear she was motivated to have her son leave her home. A reasonable juror could thus conclude she exaggerated the situation to obtain legal help in keeping her son away. Given these circumstances, a reasonable fact-finder may have determined there was some discrepancy between what Johnson said to Walker and what she reported to the officers.
The jury was free to determine Walker's credibility and decide what weight to give to her testimony. If it believed that Johnson did not intend such threats to be taken literally but that Walker was genuinely fearful when she called for law enforcement assistance, it could have believed the statements were made with a reckless disregard for whether they caused fear. The State has not addressed this possibility and has not met its burden of proving the error harmless beyond a reasonable doubt.
As a result, the KSC reversed Mr. Johnson's conviction and remanded for a new trial.
These cases are likely to be impactful, both in criminal threat cases directly and in cases where criminal threat has been used as a person felony in a client's criminal history. Many cases probably will involve situations like Mr. Johnson's--where it will be difficult or impossible to discern whether a client was convicted only of intentional criminal threat. So I would expect that we will see additional litigation in on these questions.
[Update: the state filed a petition for writ of certiorari on February 20, 2020 as outline in SCOTUSblog here.]
[Further update: SCOTUS denied the state's petition for writ of certiorari on June 22, 2020. The KSC mandate issued on June 23, 2020.]
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