January 17, 2019

Colorado Supreme Court: Non-resident’s Harassment and Threatening of Colorado Victim Sufficient to Establish Long-arm Jurisdiction for Civil Protection Order

The Colorado Supreme Court issued its opinion in Parocha v. Parocha on Monday, May 21, 2018.

Personal Jurisdiction.

The supreme court considered whether and when a civil protection order is available to a victim of alleged domestic abuse who comes to Colorado seeking refuge from a non-resident. The court concluded that an out-of-state party’s harassment of, threatening of, or attempt to coerce an individual known by the non-resident to be located in Colorado is a tortious act sufficient to establish personal jurisdiction under the state’s long-arm statute, C.R.S. § 13-1-124. The court also concluded that such conduct creates a sufficient nexus between the out-of-state party and Colorado to satisfy the requisite minimum contacts such that the exercise of jurisdiction by a Colorado court to enter a protection order comports with traditional notions of fair play and substantial justice.

The court reversed the district court’s order vacating the permanent civil protection order and remanded the case for further proceedings.

Summary provided courtesy of Colorado Lawyer.

Colorado Court of Appeals: High School Student’s Tweets Did Not Constitute True Threats or Fighting Words

The Colorado Court of Appeals issued its opinion in People in Interest of R.D. on Thursday, December 30, 2016.

Social Media—Juvenile Delinquent—Harassment—First Amendment—Right to Free Speech—True Threats—Fighting Words.

R.D., a high school student, argued with a student from a different high school through tweets on the social networking website Twitter. The People filed a petition in delinquency against R.D., and the district court adjudicated R.D. a juvenile delinquent based on conduct that would constitute harassment if committed by an adult.

On appeal, R.D. argued that C.R.S. § 18-9-111(1)(e) as applied to his conduct violated his First Amendment right to free speech. The People responded that R.D.’s statements were not protected by the First Amendment because they were true threats and fighting words. While the language of R.D.’s tweets was violent and explicit, R.D.’s tweets did not constitute true threats because they were not “a serious expression of an intent to commit an act of unlawful violence to a particular individual or group of individuals.” Fighting words can occur only when the speaker is in close physical proximity to the recipient. R.D. was not in close physical proximity to A.C. at the time of the incident. Because R.D.’s statements were neither true threats nor fighting words, the statute as applied violated his First Amendment rights.

The judgment was reversed and the case was remanded with directions to vacate the adjudication of juvenile delinquency and dismiss the proceeding.

Summary provided courtesy of The Colorado Lawyer.

Tenth Circuit: Question of Whether Letter to Abortion Provider Conveyed “True Threat” Best Decided by Jury

The Tenth Circuit Court of Appeals issued its opinion in United States v. Dillard on Tuesday, July 28, 2015.

In January 2011, Angel Dillard delivered a letter to Dr. Mila Means, a family practitioner in Wichita, Kansas, who had recently decided to start providing abortions. In her letter, Dillard warned Dr. Means that she should check under her car every day “because maybe today is the day someone places an explosive under it” and referenced Dr. Means’ friend, Dr. Tiller, who had been killed as he attended church services, warning that “if he could speak from hell” Dr. Tiller would advise her against providing abortions. Dr. Means’ office manager received the letter and immediately notified the police. A copy of the letter was also forwarded to the FBI; they interviewed Defendant but did not take any follow-up actions. Shortly after receiving the letter, a member of Dr. Means’ staff found an Associated Press article on the internet discussing how Defendant had recently befriended Dr. Tiller’s murderer and indicating that Defendant admired the killer for following his convictions and stopping abortions from happening in Wichita.

In April 2011, the government brought this civil enforcement action against Defendant, seeking fines and preliminary and permanent relief. The district court denied the government’s motion for a preliminary injunction. Defendant moved to dismiss, arguing the government lacked standing and could not show a violation of the Freedom of Access to Clinic Entrances Act of 1994 (FACE), which the district court denied. While the discovery process was ongoing, Defendant moved for summary judgment, arguing no reasonable person could have construed her letter as a true threat against Dr. Means because it did not threaten imminent violence or convey a likelihood of execution. The district court agreed and granted summary judgment. The government appealed and Defendant cross-appealed, arguing the district court should have granted her earlier motion to dismiss.

The Tenth Circuit, on de novo review, analyzed the strictures of FACE and its prior case law to determine whether the threat conveyed in Defendant’s letter was a “true threat.” The Tenth Circuit noted that it has consistently found that the fact-intensive inquiry necessary to determine whether a true threat is conveyed is properly determined by a jury. The Tenth Circuit evaluated the district court’s determination that the threat in Defendant’s letter was not a true threat because it was conditional, suggesting a bomb might be placed under Dr. Means’ car only if she did not reconsider her decision to provide abortion services. The Tenth Circuit found that a conditional threat could still qualify as a true threat. The Tenth Circuit likewise rejected the district court’s analysis that because the threat was not imminent it was not a true threat. The Tenth Circuit similarly found that a direct statement of personal intent is unnecessary to convey a true threat, noting “[a] defendant cannot escape potential liability simply by using the passive voice or couching a threat in terms of ‘someone’ committing an act of violence.” The Tenth Circuit determined that a jury could reasonably have found Defendant’s letter to convey a true threat and reversed the district court’s grant of summary judgment.

Defendant argued the Tenth Circuit could affirm on the alternate ground that the government presented no evidence that she subjectively intended to threaten Dr. Means. The Tenth Circuit was unpersuaded, noting frequently the most probative evidence is objective evidence of what actually happened rather than the subjective state of mind of the actor. The Tenth Circuit found the government presented evidence from which a jury could reasonably find Defendant intentionally mailed Dr. Means a letter containing a threat of violence.

The Tenth Circuit turned to Defendant’s cross-appeal, in which she argued the district court erred in denying her motion to dismiss because (1) the government lacked standing, (2) the First Amendment bars the action, (3) FACE violates the Commerce Clause both facially and as applied, and (4) the RFRA prevents this application of FACE. The Tenth Circuit quickly dismissed the first argument, finding the government’s standing is not derivative of the victim’s and the government has standing as long as it has reason to believe someone is, has been, or could be injured by conduct proscribed by the statute. As to the second argument, the Tenth Circuit found the district court correctly held the First Amendment’s definition of “true threat” is coterminous with FACE’s definition of “threat” so any conviction under FACE would necessarily fall outside the First Amendment’s protections. Defendant failed to raise her Commerce Clause and RFRA arguments below, so the Tenth Circuit declined to address them on appeal.

The Tenth Circuit briefly addressed the parties’ motions to seal portions of the record on appeal. These were granted in part and denied in part.

The district court’s grant of summary judgment was reversed and remanded for further proceedings. The district court’s denial of Defendant’s motion to dismiss was affirmed. The record was sealed in part with instructions. Judge Baldock wrote a thoughtful dissent; he would have affirmed the grant of summary judgment because Defendant’s “ill-advised” letter conveyed a threat that was conditional, not imminent, and impersonal.

Tenth Circuit: Threats Phrased as Exhortations Not Entitled to First Amendment Protections

The Tenth Circuit Court of Appeals issued its opinion in United States v. Wheeler on Thursday, January 15, 2015.

Kenneth Royal Wheeler, angry about a recent DUI, posted several Facebook messages urging his “religious followers” to commit serious acts of violence, including killing specific police officers and their families and killing everyone at a local preschool and daycare facility. He was convicted of two counts of transmitting a threat in foreign commerce under 18 U.S.C. § 875(c) and was sentenced to forty months’ imprisonment on each count, to run concurrently, and three years’ supervised release, also concurrent. He appealed on two grounds: (1) the jury was not instructed that it was required to find that Wheeler had a subjective intent to threaten, and (2) the evidence was insufficient to show that Wheeler transmitted a “true threat.”

The Tenth Circuit recently held in United States v. Heineman, 767 F.3d 970 (10th Cir. 2014), that § 875(c) requires proof of a defendant’s subjective intent to threaten in accordance with the First Amendment. The government asserted that Heineman was wrongly decided, but conceded that under current Tenth Circuit precedent the instructions were insufficient. However, the government argued the error was harmless because no rational juror could conclude Wheeler did not intend his remarks to be threatening. The Tenth Circuit disagreed, finding that Wheeler seemed to think he had deleted all his Facebook friends prior to posting and did not believe anyone would see his posts. The Tenth Circuit reversed on the jury instruction issue.

Because the sufficiency of the evidence claim could preclude retrial, the Tenth Circuit addressed Wheeler’s argument that the evidence was insufficient to support his convictions. The Tenth Circuit first determined that Wheeler’s speech constituted a true threat and was thus unprotected by the First Amendment. Wheeler argued his speech was not a true threat because he did not threaten to harm anyone himself. The Tenth Circuit disagreed, finding instead that “[a]llowing defendants to seek refuge in the First Amendment simply by phrasing threats as exhortations would . . . leave the state ‘powerless against the ingenuity of threateners.'” The Tenth Circuit found that a reasonable person would have taken Wheeler’s exhortations as threatening, and indeed several of the intended targets did feel threatened. A rational juror could consider Wheeler’s posts true threats.

The Tenth Circuit reversed and remanded for retrial with proper jury instructions.

Tenth Circuit: Threatening Intent Required for Conviction Under Interstate Threat Statute

The Tenth Circuit Court of Appeals issued its opinion in United States v. Heineman on Monday, September 15, 2014.

Defendant Aaron Heineman, a white supremacist, sent three emails to a professor at the University of Utah in 2010 and 2011. The third email was a poem that made the professor fear for his safety and that of his family. The professor contacted law enforcement, who traced the email to Heineman. When officers contacted Heineman in writing, he immediately responded, “Is this about the email?” He was charged with one count of sending an interstate threat in the U.S. District Court for the District of Utah. Prior to trial, he requested an instruction that he must have intended his communication to be perceived as a threat in order to be convicted, but his request was denied. He then moved to dismiss the charge, arguing the statute was facially unconstitutional if it did not require proof that he intended the communication to place the hearer in fear of bodily harm or death. The court denied this motion. He reasserted his objections at trial, and the court again rejected them. The court concluded that Defendant had knowingly transmitted a communication that would cause a reasonable person to fear bodily harm or death. Defendant appealed.

The Tenth Circuit reversed the conviction. After a careful analysis of the U.S. Supreme Court’s opinion in Virginia v. Black, 538 U.S. 343 (2003), the Tenth Circuit concluded as an issue of first impression that the defendant must intend the communication to be perceived as a threat, regardless of whether he actually carries out the threat. The Tenth Circuit reversed Defendant’s conviction and remanded for determination of intent.