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.

Comments

[TwelveInchPianist]

Are we really at the point where multiple judges feel that threats to hurt someone's feelings are as bad a threats of physical harm? How do we get back?

[Krayt]

Sticks and stones may break my bones, but names will reduce me to a quivering, destroyed mass in the fetal position, authorizing government to crush the speech of my opponents.

[John F. Carr]

Three months in jail for letting a dog off leash.

[Longtobefree]

BUT IT WAS A PITBULL!!!!

You know, one of those assault dogs.

[Stephen Lathrop]

Longtobefree, this is from an old story that ran in the San Francisco Chronicle in 2001:

The media frenzy surrounding the fatal mauling of a San Francisco woman by a Presa Canario dog could have been bad news for the future of the obscure canine breed.

But breeders say the notoriety has caused just the opposite: more calls from people looking for killer canines.

"They want a pit bull on steroids," said Mac Harris, a New York breeder. "And these dogs can be just that if they're raised the wrong way."

Go to any animal shelter and take a look at the dogs. They are overwhelmingly pitbulls, or pitbull crosses. It was not always that way. It started at just about the time the Presa Canario incident in San Francisco happened. Thugs throughout America decided that a vicious, deadly dog was just the thing to have, for personal protection, or to threaten people, or to assault them. And suddenly the pitbull population multiplied many-fold. The thugs looking for pitbulls knew quite a bit more about dog breeds, and dog breeding, than you seem to know. Unfortunately, they mostly knew nothing about raising or disciplining dogs—or maybe thought discipline was the opposite of what they were looking for. Which is why so many of those dogs get euthanized in shelters.

By the way, Presa Canario dogs did not catch on likewise, because they are so terrifying that would-be owners wisely dissuaded themselves.

[John F. Carr]

Before everybody had an SUV, car dealers told stories about how every time there was press about killer SUVs that ought to be taken off the roads, people rushed to the dealer to get a bigger, heavier SUV to be the victor in the inevitable wreck.

See also "Big and Bad" by Malcolm Gladwell.

[Longtobefree]

Words are violence.
Now wishes are violence.
Based on common sense gun control, we need to require a permit to post online.

Pay for a full background check, submit fingerprints and DNA, pass a written and practical test, and maybe you get the permit. If the sheriff say "no", there is no appeal. You can only have one account per month, and only post 10 times.

[ReaderY]

I’m not going to speak to the state-law statutory construction or jury instructions issues. But a properly worded state law could easily constitutionally punish this conduct.

This case involved a minor. And the First Amendment has more exceptions where minors are involved. I would suggest thst just as disseminating obscenity to a minor gets evaluated by a broader concept of obscenity than disseminating obscenity to an adult, threatening a minor should get a broader standard than threatening an adult. The question here, as in the onscenity context, should be whether a minor would perceive a threat, not whether an ordinary (adult) person would.

Minors understandably feel threatened more easily than adults.

[Rossami]

No because mere perception of a threat should not be the standard, whether the threat is made to a minor or to an adult. Only true threats lose their first amendment protection.

Our "feelings" are not a proper basis for prosecution under the law.

[ReaderY]

Imagine a threat occurring on Planet Earth. Unlike threats occurring in the ideal Platonic universe, whose truth status is immediately inherent in their nature and always known with certainty, the truth status of a threat occurring on lowly Planet Earth is always uncertain in its character, and has to be assessed based on evidence. Part of that evidence is whether the recipient would feel sufficiently intimidated to feel threatened.

What happens if a “true threat” is made but nobody feels threatened? If nobody would feel threatened by a statement, it may be a self-evident true threat in the ideal platonic universe, but here on lowly planet earth, where the only available evidence that something is a threat is whether people would feel threatened by it, the fact that nobody would feel threatened by it - people’s feelings - would mean it wouldn’t be classified by a threat. But the reverse is also true.

This is not to say that anybody can simply claim to feel threatened by something someone says. The First Amendment protects against that by applying a “reasonable” person standard. But that’s not really an objective standard. The probalem here is that here on lowly Planet Earth, words never have objective Platonic meanings, or at least we don’t have access to what those ideal Platonic meanings are. We see only through a glass darkly. For this reason, we have no other meaning to assign words than what people perceive those words to mean. This means the standard is really a group subjective standard. If most people would feel threatened by something, it’s a threat. Simply because most of a group perceives something doesn’t make it objectively true, of course, but it’s often the only thing we have to go on.

Minors are more easily threatened, more likely to perceive words as threats, as adults. So an evidence-based “true” threat to a minor has a lesser standard then an evidence-based “true” threat to an adult. If it actually intimdates a minor, and would tend to intimidate a typical or “reasonable” minor, it’s a threat to a minor based on the evidence, which is the only standard we have access to to judge what a “true” threat is.

[Ridgeway]

It seems to me that the "threats" could only be punishable if they constituted True Threats within the meaning of the 1st Amdt. Then, it is possible that the state statute could narrow the scope of prohibited threats even further.

Here I doubt that a threat to harm a 14-YO when he turns 18 would constitute a true threat. I don't know if the SCT has addressed this, but I am pretty sure there are some Circuit Court opinions that require an element of immediacy and unconditionality in the threatening communication.

I also think the physical/mental harm issue is a red herring. The issue is whether the threat in question is a true threat and otherwise violates the statute -- whether that threat caused mental anguish is irrelevant, but I suspect that is what the jury was thinking about.

I could see a situation where a threat to cause mental anguish could be a true threat -- something like: "I will make your life a living hell until you want to commit suicide." I wonder if the court would view that as outside the statute's prohibition.

As an aside, the following sentence should have a place of honor in the pot=calling-the-kettle-black Hall of Fame: "U dont know the difference bwtween right and wrong, and based on ur writing skills, you MUST be fkn retarded. "

[Malvolio]

Here I doubt that a threat to harm a 14-YO when he turns 18 would constitute a true threat.

What does that even mean? Is he threatened to have sex with the boy?

[Ridgeway]

Even without the "once you turn 18 proviso", I doubt that was a True Threat, but the 4-year cooling off period makes it a pretty easy question.

[Jimmy the Dane]

It doesn't look like the constitutional question was presented on appeal, but I don't see how this isn't clearly protected speech. Absent a true threat (which I don't read into the message itself and I doubt most reasonable people would without either more context or more supporting evidence) I don't see how the government can put you in jail (again) for telling someone who (appears to maybe have lied) that they are a horrible person and you wish them ill.

[Á àß äẞç ãþÇđ âÞ¢Đæ ǎB€Ðëf ảhf]

based on ur writing skills, you MUST be fkn retarded.

Based on that, it's a good bet that the kid used proper spelling and proper grammar, and the idiot couldn't understand it.