Driving Past Police Officer and Yelling "Fuck the Police" "While Pointing as if [One] Had a Gun" Is Constitutionally Protected

From State v. Buford-Johnson, filed today by the Washington Court of Appeals (Judge Lori Smith, joined by Judge Bill Bowman and Acting Chief Judge Beth Andrus):

Artemas Buford Johnson was arrested after he drove past a Seattle Police Department officer and yelled "fuck the police" while pointing as if he had a gun….

We use an objective test to identify whether speech is a true threat: "'[a] true threat is a statement made in a context or under such circumstances wherein a reasonable person would foresee that the statement would be interpreted … as a serious expression of intention to inflict bodily harm.'" "A true threat is a serious threat, not one said in jest, idle talk, or political argument."

"[T]he nature of a threat depends on all the facts and circumstances, and it is not proper to limit the inquiry to a literal translation of the words spoken." "[I]t is not just the words and phrasing of the alleged threat that matter, but also the larger context in which the words were uttered, including the identity of the speaker, the composition of the audience, the medium used to communicate the alleged threat, and the greater environment in which the alleged threat was made." …

Here, we conclude that the evidence does not establish that Johnson made a true threat…. Johnson's statement did not itself express any intention to cause harm, but instead was a generalized and political statement of animosity. We have noted that "criticism, commentary, and even political hyperbole towards and about public servants" is political speech that "is at the core of First Amendment protection 'no matter how vehement, caustic[,] and sometimes unpleasantly sharp." …

However, Johnson also pointed at Officer Zerr as if he had a firearm, expressive conduct that does imply violence. The City correctly notes that mimicking the firing of a gun has been considered threatening in other contexts and jurisdictions. We must therefore examine "all the facts and circumstances" to determine whether Johnson's conduct constituted a threat in this case.

The circumstances here do not convince us that Johnson's speech and conduct together constituted a true threat. Johnson did not stop or approach Officer Zerr, but instead continued driving north throughout the interaction. Furthermore, Johnson kept his arm hanging out of the window of the car as he continued to drive, and then immediately stopped at a red light. These facts are more suggestive of a casual encounter or idle talk than a serious threat. {We … note that there is no clarification as to whether Johnson actually mimed shooting a gun or merely pointed his hand in a manner that was evocative of a gun, which would give more information about the extent to which Johnson's conduct clearly expressed violence.} …

{The record establishes that Officer Zerr was out at 9:45 PM by himself, a car without headlights drove by, the driver yelled at him, and Officer Zerr thought he had seen an object that might be a firearm. Officer Zerr then "quickly moved into the shadows and behind a telephone pole, fearing the pointed object might be a firearm." Considering these circumstances, a reasonable fact finder could conclude that Johnson's conduct placed Officer Zerr in reasonable fear of bodily harm.}

However, the fact that Officer Zerr was afraid is not determinative: the true threat inquiry asks whether there is sufficient evidence that a person in Johnson's position would "'foresee that [his] statement would be interpreted … as a serious expression of intention to inflict bodily harm.'" Here, Officer Zerr was afraid because he thought he might have seen a firearm, but Johnson did not have a firearm and there is no suggestion that he should have anticipated that Officer Zerr would think he had one. Therefore, the fact that Officer Zerr was afraid does not indicate that Johnson's conduct rose to the level of a true threat.

Thanks to Bret Uhrich for the pointer.