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VOLOKH CONSPIRACY

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Can It Be a Crime to “Intimidate” Police Officers by Threatening to Complain About Them?

No, says the Fifth Circuit, striking down as unconstitutionally overbroad a Louisiana statute that apparently bans threatening public employees with lawsuits or complaints -- and not just with violence -- “with the intent to influence [the employee's official] conduct.”

An interesting, and I think correct, Fifth Circuit First Amendment decision in Seals v. McBee, written by Judge Smith and joined by Judge Weiner and newly appointed Judge Willett:

Louisiana Revised Statutes § 14:122 criminalizes "the use of violence, force, or threats" on any public officer or employee with the intent to influence the officer's conduct in relation to his position. Travis Seals threatened police when arrested[.] [Text moved: It appears that a neighbor accused Seals and Bergeron of aggravated assault, and the police responded. According to Seals, he was pepper-sprayed and verbally objected to the arrest, threatening "to make lawful complaints" about the officers' conduct. According to the officers, Seals violently resisted and "repeatedly made threats of physical harm."]

[Seals] facially challenges Section 14:122 as unconstitutionally overbroad in violation of the First Amendment. To show [the statute is unconstitutionally overbroad], plaintiffs must establish that Section 14:122 encompasses a substantial number of unconstitutional applications "judged in relation to the statute's plainly legitimate sweep." ...

The parties dispute the reach of Section 14:122. We start with the text. The statute criminalizes "public intimidation," defined as "the use of violence, force, or threats upon [a specified list of persons, including any public officer or public employee] with the intent to influence his conduct in relation to his position, employment, or duty." On its face, the statute is extremely broad. The definition of "threat" generally encompasses any "statement of an intention to inflict pain, injury, damage, or other hostile action on someone in retribution for something done or not done" [citing the dictionary definition]. That definition easily covers threats to call your lawyer if the police unlawfully search your house or to complain to a DMV manager if your paperwork is processed wrongly....

Although not explicit, Louisiana caselaw strongly suggests that Section 14:122 requires a corrupt intent, [defined as the intent to obtain something the speaker is not entitled to as a matter of right].... Yet we can narrow Section 14:122 no further. According to the state, we should construe the statute to apply only to true threats, i.e. "a serious expression of an intent to commit an act of unlawful violence" toward specific persons. [But, f]irst, the definition of "threat" is broader than true threats: any "statement of an intention to inflict pain, injury, damage, or other hostile action on someone in retribution for something done or not done." Second, the reporter's comments to Section 14:122 provide that the statute "should include threats of harm or injury to the character of the person threatened as well as actual or threatened physical violence." Thus, the section is not "readily susceptible" to such a limiting construction....

[Moreover,] the Louisiana Court of Appeals has upheld the conviction of a defendant who violated Section 14:122 by threatening "to sue" an officer and "get [his] job" if the officer arrested him. Plainly, such a threat suggests no violence—indeed, the threat appears to be a plan to take perfectly lawful actions. Accordingly, we cannot construe Section 14:122 to apply only to true threats of violence.

It follows that, properly understood, Section 14:122 applies to any threat meant to influence a public official or employee, in the course of his duties, to obtain something the speaker is not entitled to as a matter of right. But so construed, the statute reaches both true threats—such as "don't arrest me or I'll hit you"—and threats to take wholly lawful actions—such as "don't arrest me or I'll sue you." In both those examples, the speaker may be legally subject to arrest and is trying to influence a police officer in the course of his duties....

[Thus, though the statute] covers a large swath of unprotected speech, including true threats and core criminal speech, such as extortion and threats to engage in truly defamatory speech made with actual malice[,] ... the statute plainly reaches further[, such as to] ... threats to sue an arresting officer or even to run against an incumbent unless he votes for a favored bill.

Such threats are constitutionally protected. The decision in NAACP v. Claiborne Hardware Co. (1982), is instructive. There, a group of black citizens demanded that public officials desegregate public schools and hire black policeman lest the black community engage in boycotts of private businesses; when their demands were not met, the boycotts began. Such speech was constitutionally protected even though obviously threatening. Moreover, a speech during the boycott contained strong language referencing breaking necks and committing other acts of violence; nevertheless, the Court found the speech protected. Yet on its face, Section 14:122 would criminalize all of that speech.... Section 14:122 could encompass an innocuous threat to complain to a DMV manager for slow service or a serious threat to organize lawsuits and demonstrations unless the police lower their weapons. And each kind of threat is constitutionally protected....

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  • apedad||

    Looks like Louisiana didn't bother to follow the definitions that THEY proscribed under this law:

    §122.2. Threatening a public official; penalties; definitions

    A.(1) Threatening a public official is engaging in any verbal or written communication which threatens serious bodily injury or death to a public official.

  • apedad||

    And this (unrelated):

    §390. Declaration of public policy

    In the interpretation and application of R.S. 14:390 and the Subsections thereof, and as a result of certain evidence having been presented to the Joint Legislative Committee on Un-American Activities of this Legislature, the public policy of this state is declared to be as follows:

    There exists a clear, present and distinct danger to the security of the state of Louisiana and the well-being and security of the citizens of Louisiana arising from the infiltration of a significant amount of communist propaganda into the state. In addition, this state is a stopping place or "way station" for sizeable shipments of dangerous communist propaganda to the rest of the United States and to many foreign countries.

    ** chuckle ** Louisiana. . .

  • Krayt||

    Exactly! What idiots think there is any seriously influential infiltration of propaganda from the Rooskies!

    Lol, those 1950s rubes!

  • Eugene Volokh||

    That's a different statute -- this case involves § 122 ("public intimidation and retaliation"), which doesn't use that narrower sense of threat.

  • apedad||

    Thanks.

    I thought RS 14:122.2 was a follow on/subset of RS 14:122.

    IANAL!

  • Longtobefree||

    It's early, and I am caffeine deprived, so can someone explain the distinction between a "threat" (I am going to report this), and "a statement of fact" (I am going to report this)?
    I do remember that Napoleon ran LA for awhile, and they do thing different there, but really?

  • MatthewSlyfield||

    Statement of fact: I am going to report this.

    Threats: do/don't do X or else I am going to report this.

  • Eugene Volokh||

    Threats can be conditional in that sense, aimed at coercing someone. But "I am going to kill you" can be a threat even if it doesn't have any conditions.

  • MatthewSlyfield||

    "But "I am going to kill you" can be a threat even if it doesn't have any conditions."

    True, but I don't really see that as relevant to the question posed by Longtobefree.

  • Charles Nichols - CRTC||

    Professor Volokh - An undisputed fact in my California Open Carry lawsuit is "I am going to shoot you" and calling upon others to track me down and shoot me is, according to the Los Angeles County Sheriff's Department, not a criminal threat because the person who made the threat did not use the word kill.

    In hindsight, I should have added the facts that this was also the opinion of the Los Angeles County District Attorney's Office as well as the fact the person who made the threat was a prominent political supporter of then District Attorney Steve Cooley.

    http://blog.californiarighttoc.....ge_id=8178

  • great Unknown||

    How does this comport with the decision you previously reported: http://reason.com/volokh/2018/.....-in-public

  • Stumble||

    It should be pointed out that despite the limiting instructions the state tried to read into the statute before the 5th circuit a number of people have been arrested and charged for threatening police officers job's over excessive violence. And a few for threatening elected officials for going public over ethical lapses. Even if the statute was intended to have a limiting instruction as applied it is certainly unconstitutional.

  • ReaderY||

    If there hadn't been Louisiana case on point, I'd have said the statute could have easily been construed as limited to true threats. In general, I'm not a big fan of courts accepting maximal, even improbable or fanciful interpretations of laws for the sole purpose of striking them down.

    A court is obligated to choose the constitutional version of a statute over the unconstitutional one. The first amendment overbreadth doctrine exists, but in my view it should mean we strike the law down when the most plausible interpretation is unconstitutional and we don't use the less probable or reasonable one to save it. But when the unconstitutional interpretation is the less reasonable meaning, I don't think there's any need to stretch to reach it.

  • Rich Rostrom||

    What if the threatened conduct is legal, but clearly unethical, and not connected to the action the threatener wants the official to do or not do?

    E.g. "Johnson, I'm tired of you writing tickets on my drivers. I want you out of this district. If you're not gone by next week, I'll have people file 60 or 70 complaints on you and run you off the force."

    Or, "Mayor, I got a very nice gas station at Collins Road and 79th, a block past Westville. If Westville gives a permit for a station at Collins and 75th, I'll sue your little town's ass into bankruptcy, like I did North Grove."

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