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Volokh Conspiracy

Can it be a crime to 'intimidate' police officers by threatening to complain about them?


From yesterday's federal district court decision in Seals v. McBee:

After an altercation with his neighbor, Plaintiff Travis Seals alleges that he was arrested at his home by deputies from the Tangipahoa Parish Sheriff's Office. During the arrest, Seals objected to the deputies' conduct, including the use of pepper spray, and threatened to make a lawful complaint regarding their conduct. Seals was charged with, among other things, public intimidation and retaliation in violation of Louisiana Revised Statutes § 14:122 for that threat. … The charge was ultimately dismissed or refused.

Seals then sued in federal court, challenging the relevant provision of the statute, which makes it a felony to use "threats upon [a public officer or public employee], with the intent to influence his conduct in relation to his position, employment, or duty." The federal district court agreed, holding that the statute was content-based and unconstitutionally overly broad.

This Court reads § 14:122 to prohibit all threats made with the intent to influence the behavior of a public official. Indeed, the statute's comments indicate that, "The words 'violence, force, or threats' should include threats of harm or injury to the character of the person threatened as well as actual or threatened physical violence." [These are the Reporter's Comments in the Louisiana Code, which Louisiana courts seem to generally treat as persuasive authority.-EV] Accordingly, on its face, § 14:122 criminalizes the comments at issue here as well as other threats to engage in lawful conduct such as, criticizing a police officer, writing a letter to the newspaper, filing a lawsuit, voting for an official's opponent, or filing an ethics complaint.

The Attorney General argues, however, that the statute should be read to include a requirement of corrupt intent. It contends that the public intimidation statute should be interpreted identically to the public bribery statute because, as the comments suggest, "the public intimidation section includes the same parties and requires the same purpose as [the public bribery] section. The principal difference in the two sections is the method used to accomplish the purpose." The Attorney General argues that cases interpreting the public bribery statute have found that the statute requires a "corrupt intent." "Intent is corrupt when it is to influence 'official action to obtain a result which the party would not be entitled to as a matter of right.'" Accordingly, the Attorney General argues that in order to violate Louisiana's public intimidation statute, "one must threaten a public employee in order to obtain a result to which the offender would not be entitled to as a matter of right."

On its face, however, the statute says no such thing. … It unambiguously states that all threats made with the intent to influence a public official are criminal. … Indeed, § 14:122 has been applied by Louisiana courts consistent with such an interpretation. In State v. Mouton, the Louisiana Third Circuit Court of Appeal affirmed the defendant's conviction under § 14:122 for threatening, during his arrest, to sue a police officer or have him fired. The Mouton court did not discuss a corrupt intent requirement. …

This holding disposes of the Attorney General's argument that § 14:122 prohibits only speech that is not protected by the First Amendment, such as true threats [of criminal conduct], extortion, and speech integral to criminal conduct. Threats to take lawful, non-violent action are not "true threats" or any other category of speech that has not historically been protected by the First Amendment. Accordingly, § 14:122 [unconstitutionally] criminalizes both protected and unprotected speech.