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Punishing Threats

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In People v. Lowery, S179422, decided today, the California Supreme Court considered the criminal punishment of threats post Virginia v. Black.  In doing so, it split from a recent Ninth Circuit decision, United States v. Bagdasarian.
The opinion of the Court by Justice Kennard says:

In a recorded telephone conversation with his incarcerated wife, defendant said he would kill Joseph Gorman, an 88-year-old man who had accused the couple of stealing $250,000 from his mobile home and who had testified against them in court. Based on defendant's comments, he was charged with violating a state statute that prohibits "willfully" threatening violence against a crime witness or victim. (Pen. Code, § 140, subd. (a) (§ 140(a)); further undesignated statutory references are to the Pen. Code.) A jury convicted defendant. On appeal, defendant argued that because the statute lacked a specific intent requirement, it infringed his right to free speech under the federal Constitution's First Amendment. The Court of Appeal disagreed and upheld the conviction.

Does section 140(a) violate the First Amendment, as defendant contends? Or does the statute target only "true threats," a category of speech that has no First Amendment protection?

We construe section 140(a) as requiring proof that a reasonable person would understand the allegedly threatening statements -- when considered in their context and surrounding circumstances -- "to communicate a serious expression of an intent to commit an act of unlawful violence," the high court's definition of a " 'true threat.' " (Virginia v. Black (2003) 538 U.S. 343, 359.) So construed, section 140(a) does not run afoul of the First Amendment. Although, as noted earlier, the Court of Appeal upheld the constitutionality of the statute, it did so on grounds different from the reasonable person standard just articulated. Therefore, we reverse the judgment of the Court of Appeal and remand this case to that court to consider whether our holding affects defendant's judgment of conviction.

This opinion is unanimous with Court of Appeal Justice Zenon sitting by designation in the vacant Moreno seat.  However, there is an unusual concurrence written by Justice Baxter and joined by all except the lead opinion author and the designated justice.

The First Amendment allows states "to ban a 'true threat.' " (Virginia v. Black (2003) 538 U.S. 343, 359 (Black).) The majority opinion, which I have joined, is consistent with the First Amendment. It upholds the constitutionality of Penal Code section 140, subdivision (a), on the ground that the statute applies "only to those threatening statements that a reasonable listener would understand, in light of the context and surrounding circumstances, to constitute a true threat, namely, 'a serious expression of an intent to commit an act of unlawful violence.' " (Maj. opn., ante, at p. 10, quoting Black, supra, 538 U.S. at p. 359.) I write separately to discuss more fully the Ninth Circuit's mistaken belief that a "true threat" requires something else, namely, proof that the speaker subjectively intended the statements be taken as a threat. (See United States v. Bagdasarian (9th Cir. No. 09-50529, July 19, 2011) ___ F.3d ___, ___ [2011 U.S.App. LEXIS 14684, pp. *11-16]; United States v. Cassel (9th Cir. 2005) 408 F.3d 622, 631-633.)

Eugene Volokh had this post on Bagdasarian when it came out.

A split between a federal court of appeals and a state supreme court within its circuit makes a particularly strong case for certiorari review in the U.S. Supreme Court.  Is this such a split?  Justice Baxter's opinion is a concurrence, but it represents the view of a solid majority of the court.  The official opinion of the court says a bit more diplomatically, "We are not persuaded by the quite recent decision in United States v. Bagdasarian ...."  Still a split.

Oh, and who wrote Bagdasarian?  Let's just say it is presumptively reversible.

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