"Odd," "Unnerv[ing]," "Disturbing," Comments, Post, and Letter to Politician Weren't "True Threats"

"[E]ccentricity and being off-putting is not a criminal offense," even when the speaker mentions the listener's children and other personal details.

From People v. Peterson, decided Tuesday by the California Court of Appeal (Justice Victor Rodriguez, joined by Justices Allison Tucher and Carin Fujisaki):

Defendant Bruce Peterson was convicted of stalking a politician and the politician's family. The conviction was based on: (1) Peterson's odd comments to the politician's wife at an open house event for a school bond issue; (2) his reposting on Facebook of a publicly available photo of the politician's family along with comments mentioning the open house event and the politician's children; and (3) his mailing of a rambling letter—criticizing local politics and containing a check made payable to "anyone who is not corrupt"—to the politician's wife. We reverse. On the specific facts of this case, we conclude a reasonable listener would not have found Peterson's speech or speech-related acts a true threat of violence….

In February 2020, Lafayette City Councilmember and former Lafayette Mayor, Cameron Lee Burks, and his wife, Julia Ackley, hosted an open house event in their home in support of a school bond measure. The invitation stated Burks was "hosting this event as an individual resident of Lafayette and a father of school-aged children." Peterson attended and had an "odd" and "stilted" conversation with Ackley, during which he noted it had been 22 days since her birthday. Unaware her birthday was publicly available on her Facebook page, she felt "unnerved," "uncomfortable," and a "little freaked out." Her "spider-sense" that something was amiss was triggered by his odd behavior and appearance; she described him as wearing a shirt with "children's handprints all over it" and a pink fanny pack.

In March 2020, Peterson reposted on his Facebook page a photo from Ackley's public Facebook page. The photo depicted Ackley, and Burks and Ackley's two daughters. Peterson's post stated, "A politician's family. I have never met the younger 2 girls." In the comments, Peterson wondered "where [Burks and Ackley] hid the girls" during the open house event. He mused, "They live near Burton Valley School. Considering the politician, Cameron Burks, has a different name than his wife, I wonder what their daughters' last name is?" He also described Burks as "one of the Mayor's [Sic.] who abdicated his throne. But remained in power, on the Lafayette, Ca. City Council." One of Burks's colleagues sent him a screenshot of Peterson's Facebook post. Burks was "alarmed" and "immediately felt" Peterson "could be a threat" to his wife and daughters. But Ackley acknowledged the photo reposted by Peterson was publicly available on her Facebook page, as was her birthdate and other pictures of Burks and her daughters.

In April 2020, Ackley received a "confusing" letter and check in the mail from Peterson. Written on the front of the check was, "Pay to order of anyone who is not corrupt." On the back of the check was written, "Thanks for hosting the event on February 3rd, 2020. I do not recall your two daughters' names. Are they […] and […] or Molly and Harry?" Molly and Harry are the names of Ackley's parents, but she acknowledged the names and photos of her parents were publicly available at the time.

The letter was addressed to "Julia, 2 unnamed daughters, and their unnamed pets." The rambling letter was a screed against local politics. For example, Peterson said he had "a long list of liars," and Burks's Facebook "tells me that many of the: duplicitous, diabolical, lying, liars from hell, are his friends. Oh! They lied about me. They did not lie about him." He continued, "BTW. I have despised the Lafayette Police Department, since 1966. Before any of you were born. Wow! I've merely despised Lafayette Little League's: nasty, totalitarian jerks, since around 1998? How does a father of 2 daughters, live with himself, being a puppet for those totalitarian, nasty jerks from hell? They are above all laws, in this corrupt, little city."

Although Ackley thought the letter "didn't make a lot of sense" and "was written in a confusing manner," she was "really scared" it mentioned her by name, as well as the names of her daughters, and her parents. She also felt "helpless … to protect" her children. The idea that something could happen to her children filled her with a "sense of insecurity" and "doom." For his part, Burks felt "sick to [his] stomach" and "fearful" when he read the letter.

The defense called several witnesses who testified that, although Peterson was distrustful of the government and politicians, he was not violent. They described him as an "unusual" person who was prone to rants and hyperbolic speech—like when he said he "could have strangled the foul creature," referring to a former city supervisor—but there was "[a]bsolutely no follow-through or violence of any kind."

After a jury trial, Peterson was convicted of stalking and sentenced to two years of probation, with one year of home confinement….

The relevant California stalking statute requires a showing that the speech was a true threat, and the court concluded that this was absent here:

We conclude, as a matter of law, that a reasonable person would not understand Peterson's speech and its dissemination, whether considered separately or cumulatively, to be a true threat. To be sure, Peterson's comment to Ackley about the exact number of days that had passed since her birthday was odd, and she was no doubt unnerved by his remark given her unawareness that her birthday was publicly available on her Facebook page. But Peterson's mere reference to her birthday—leaving aside that anyone could find the information on Ackley's Facebook page—could hardly be seen as a "'serious expression of an intent to commit an act of unlawful violence.'" Peterson's remark does not rise to that level; eccentricity and being off-putting is not a criminal offense.

Peterson's Facebook post and comments fare no better. As noted, he reposted a photo of Ackley, and Burks and Ackley's daughters—a photo that was publicly available on Ackley's Facebook page. Peterson's post stated, "[a] politician's family," and in the comments to the post, he questioned the absence of the children at the open house event. He also wondered about the children's last name given that their parents did not have the same last name as one another. And he described Burks as having "abdicated his throne" as mayor but remaining on the city council. Peterson's comments about the whereabouts and last names of the children were no doubt upsetting and even alarming to Burks and Ackley. But context is critical. The post and comments were made in the context of the school bond measure Burks and Ackley supported as parents of "school-aged children."

Moreover, language in the political arena "is often vituperative, abusive, and inexact." Despite the unsettling and even disturbing nature of Peterson's post and comments, the school bond measure at the center of Peterson's speech was unquestionably a matter of public interest….

References to Burks and Ackley's daughters were surely discomfiting, but a reasonable person would not think, as the Attorney General suggests, that they reflected efforts "to learn about, locate, and contact Burks's teenage daughters." Direct threats of violence are not necessary, but something more than the mere mention of the children was required. (E.g., People v. Falck (Cal. App. 1997) [defendant's desire to spend eternity with victim, coupled with his stated proficiency with a rifle, and gift of black roses suggested murder-suicide]; In re Ernesto H. (Cal. App. 2004) [statement, "'Yell at me again and see what happens,'" along with a step toward victim and threatening stance was a true threat]; People v. Halgren (Cal. App. 1996) [statements that victim "would be sorry she had been rude to him," "she would pay for her rudeness," and he was going to "'fix her'" or "'fix this'" were threats].) Nothing in Peterson's comments or their dissemination suggested even an implied threat to the children's safety.

Finally, there is the letter Peterson mailed to Ackley, in which he opined "100% of the politicians and their administrators, who are supposed to represent me, are corrupt." The enclosed check was made payable to "anyone who is not corrupt," and on the back of the check was written, "Thanks for hosting the event on February 3rd, 2020. I do not recall your two daughters' names. Are they […] and […] or Molly and Harry?" The Attorney General concedes the letter and check "criticized Burks's political activities" and were intended "to influence Burks politically." To the extent the Attorney General contends the act of mailing the letter itself constituted a threat, we disagree. The context surrounding the mailing of the letter "fail[s] to show that, as a threat, it was sufficiently unequivocal to convey" an intent to commit an act of unlawful violence. The Attorney General also insists the "subtext" of these communications was that, because of his "anger about Burks's political involvement," Peterson "was trying to learn about, locate, and contact Burks's teenage daughters." We can discern no such "subtext." …

Marc J. Zilversmit represents the defendant.