The Volokh Conspiracy

Mostly law professors | Sometimes contrarian | Often libertarian | Always independent

I ❤ ISIS/Bin Laden + Confederate Flag + "Black [& Indian] Lives Don't Matter"

Criminal conviction reversed because it may have been based on these statements, and not just on threats to "shoot up the building."


From People v. Peterson, decided last week by the Michigan Court of Appeals (Judges Patrick M. Meter, Douglas B. Shapiro, and Michael J. Riordan):

On April 12, 2017, defendant went to the 33rd District Court in Woodhaven, Michigan with his brother and girlfriend to provide support for his girlfriend, who was there for sentencing. When the district court judge denied his girlfriend's motion to withdraw her plea, defendant uttered the word "asshole." Defendant was ordered to leave the court building, which he did without protest or incident. He then waited outside the courthouse for his brother and girlfriend.

While outside, defendant paced back and forth and began talking to himself…. [Bystander Robert] Williams testified that defendant stated that he was going to "shoot up the building" and also threatened to shoot Williams. Defendant denied threatening anyone and claimed he was merely talking to himself…. [A court security officer also] testified that he was informed by another court patron that defendant stated he "loved" ISIS and Osama bin Laden. Officers from the Woodhaven Police Department were dispatched to the scene.

The officers arrived on the scene and asked defendant "what was going on," to which he replied, "you tell me what the f***'s going on." … The jury … convicted [defendant] of disturbing the peace….

MCL 750.170 provides: "Any person who shall make or excite any disturbance or contention in any [public place] … shall be guilty of a misdemeanor." …

[A] threat to kill a member of the public and shoot up a courthouse is [not] protected [by the First Amendment]…. [But] some of the statements used to convict [defendant] were constitutionally protected speech. Most significantly, defendant's unpopular political statements outside of the courtroom expressing his admiration of ISIS and Osama bin Laden constitute protected speech. Also, there was no evidence that his statements regarding ISIS and bin Laden, if heard by anyone other than the court patron who reported it to security, "[made] or excit[ed] any disturbance."

Similarly, the prosecutor questioned defendant about his recent protest outside of a courthouse that involved waving the Confederate flag and displaying signs reading "Black Lives Don't Matter" and "Indian Lives Don't Matter." Aside from having no relevance to whether defendant disturbed the peace on April 12, 2017, and being highly prejudicial, this conduct also involved protected speech and cannot serve as the basis of a disturbance under…

Nevertheless, the jury heard testimony about all of these statements. There was no limiting instruction, and the jury was free to convict on the basis of any of defendant's statements it concluded were covered by MCL 750.170. A review of the trial record does not provide us with any basis to determine which of defendant's statements were the basis for his conviction, and so we cannot conclude that defendant was convicted solely on the basis of his constitutionally unprotected threat to shoot members of the public in a public place….

It was plain error to admit statements by defendant that are either protected speech or as a matter of law are not grounds for conviction. Admission of this evidence without a limiting instruction did not merely place defendant in a bad light that may have prejudiced him; it allowed the jury to convict defendant because he made statements that are either constitutionally protected or outside the scope of the statute. And considering the prosecutor's repeated reliance on those statements in closing argument, we conclude that there is a reasonable probability that this error affected the verdict….

Defendant also argues the trial court erred when it instructed the jury that it could convict defendant for exciting a "contention" under MCL 750.170. This too constituted plain error, considering that this part of the statute was found to be constitutionally infirm by this Court in People v. Purifoy (1971), People v. Mash (1973) in Purifoy, 34 Mich App 318, a ruling that was reaffirmed in People v Mash, 45 Mich App 459; 206 NW2d 767 (1973) and more recently in People v. Vandenberg (2014).

Rumors that Peterson and his girlfriend received the "Citizen Couple of the Year" award proved unfounded.