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Free Speech

Michigan Witness-Retaliation-by-Threats Law Requires Intent to Threaten Physical Injury (or Crime)

One judge would have held that threats to injure reputation are criminalized by the law, but the other two disagreed.


From People v. Johnson, decided last week by the Michigan Court of Appeals (written by Presiding Judge Jane Markey and joined by Judge Douglas Shapiro):

In March 2018, defendant was convicted by a jury of resisting or obstructing a police officer, MCL 750.81d(1), and allowing a dog to stray off-leash. This Court affirmed the convictions, which arose out of an incident involving defendant's dog and an altercation between defendant and a police officer who had responded to reports of a dog at large. At that earlier trial, several witnesses testified about the events that resulted in defendant's convictions.

One of those witnesses was then-14-year-old BP. BP testified that he encountered a three-legged white pit bull—the dog at issue—as BP walked to a clinic for a physical therapy appointment. BP further testified that the dog was barking, that the dog chased him, that BP was afraid that the dog was going to bite him, and that someone then called the dog back and BP was able to safely enter the clinic. The jury viewed a video of BP's encounter with the dog.

Defendant attempted to impeach BP's trial testimony with the video footage and a written statement that BP had provided to the police. Defendant's effort at impeachment primarily concerned whether BP was running or walking during portions of the episode. We note that any purported discrepancies in BP's account of events had no real bearing on whether defendant's dog was straying off-leash or on whether defendant resisted or obstructed the responding police officer. In May 2018, defendant was sentenced to 12 months in jail for the resisting-or-obstructing conviction and three months in jail for the stray-dog conviction.

With respect to the instant charge and conviction, on May 29, 2019, at 10:03 a.m., defendant, no longer incarcerated, sent a message to BP through Facebook Messenger. The message, which defendant admitted sending to BP, stated:

Hey there you lying pc of sht, I hope yr proud of yourself. Your fkn lies cost me a year in jail, as the video clearly shows u weren't walking to clinic, werent charged by a dog, nor ran as fast as u could into clinic, cuz u were afraid the dog would bite u. U must have been coached by the cops, and were coherced into lying for then. U dont know the difference bwtween right and wrong, and based on ur writing skills, you MUST be fkn retarded. Goes around comes around, and Karma WILL fuck you, for the lies u told, and the harm you caused me from ur choice to lie. You should be ashamed of yourself, and I hope u suffer an extremely horrible death that causes u and ur family dire pain, like YOU put upon me, and consequences for being a lying little twerp who deserves to have his fkn tongue cut off, cuz if thats the BEST you can do with it, YOU DON'T NEED IT. Fk u and ur family, eat shit and die u lying pc of shit, middle finger high in the air to you, and when ur 18, Id love to show u how much I and my family appreciates your fkn lies. Fuck you.

On the basis of this message, the prosecutor charged defendant with witness retaliation under MCL 750.122(8), which provides:

A person who retaliates, attempts to retaliate, or threatens to retaliate against another person for having been a witness in an official proceeding is guilty of a felony punishable by imprisonment for not more than 10 years or a fine of not more than $20,000.00, or both. As used in this subsection, "retaliate" means to do any of the following:

(a) Commit or attempt to commit a crime against any person.

(b) Threaten to kill or injure any person or threaten to cause property damage.

The prosecution's theory at trial focused on the language in subsection (8)(b) of the statute, with the prosecutor arguing that defendant retaliated against BP for his earlier testimony by threatening to kill or injure BP as communicated through Facebook Messenger.

The court held:

  1. The case should be reversed because the jury was misinstructed as to the mental state required for the "Threaten to kill" prong: It should have been instructed that it needed to find an intent to threaten. Courts throughout the country differ on this subject in threat laws generally, and in particular on whether the First Amendment requires proof of such intent (or perhaps knowledge or recklessness) or whether negligence as to the possibility that the statement would be perceived is sufficient. The Supreme Court's 2015 S. v. Elonis decision declined to resolve the First Amendment split; Justice Thomas urged the Court to resolve the split in his 2020 Kansas v. Boettger dissent from denial of certiorari, and Justice Sotomayor did likewise in her 2017 Perez v. Florida dissent, but there weren't four votes to get the Court to hear the issue. Because of how the Michigan court interpreted the statute, it didn't have to reach the First Amendment question.
  2. The case should be remanded for a new trial, rather than thrown out altogether, because a properly instructed jury could have found the statement threatening: "[When the sentence] 'when ur 18, Id love to show u how much I and my family appreciates your fkn lies' … is viewed in conjunction with … defendant's hope that BP suffers 'an extremely horrible death' and that BP 'deserves to have his fkn tongue cut off,' a juror could reasonably infer that defendant was threatening to 'kill' or 'injure' BP for having testified against defendant in the earlier prosecution."
  3. The threat-to-injure element requires a threat to inflict a physical injury, and not a mental or psychological injury. Because the jury asked the judge about this, and the judge said mental injury sufficed, that's an independent reason to reverse.

Judge Amy Ronayne Krause concurred. She agreed that the law requires an intent to threaten, but concluded that the jury instruction adequately conveyed that. And she thought the judge improperly responded to the jury question about threats to inflict mental injury (which in her mind justified a retrial), but reasoned that threats to inflict mental harm—including threats to injure "a person's reputation or mental state"—are indeed punishable.