Threats to the President-Elect, Whoever He or She Might Be

Judge David Campbell's opinion Thursday in U.S. v. Ortiz (D. Ariz.) deals with a somewhat unusual sort of threat. On Election Day 2024, Ortiz tried to file in court a document stating, "'I chose to execute the newly elected POTUS by firing an M-16A2 Service Rifle with a magazine of 6 rounds." (The document also noted "that the 'newly elected POTUS' would be 'either…K.D. Harris or D.J. Trump,'" but the court said that, "[b]ecause the document is not made part of the indictment, … the Court has not relied on it in ruling on the motion to dismiss.")

For this, Ortiz was charged with three counts. In Count 1, he was charged under 18 U.S.C. § 871, which "criminalizes threats of violence made against the President, the President-elect, or the Vice President," with threatening VP Harris; the court allowed the prosecution to go forward on this count:

Defendant argues that on November 5, 2024, there was no identifiable "newly elected POTUS" because it was Election Day and dozens of candidates were on the ballot…. [But] if it is not clear whether a statement is protected expression or a true threat, it generally should be submitted to the jury. On election day, only two candidates—Vice President Kamala Harris and former President Donald Trump—realistically could have become the "newly elected POTUS." Count 1 specifically identifies Vice President Harris as the alleged victim. Defendant can argue to the jury that his failure to identify her specifically makes his alleged statement too indefinite to constitute a true threat, but the Court cannot conclude as a matter of law that the existence of two possible targets of a death threat means that neither has been truly threatened….

In Count 2, Ortiz was charged under 18 U.S.C. § 879, which "criminalizes threats of violence against a former President." Again, the court allowed the prosecution to go forward:

Defendant argues that § 879 applies only to threats against a former President and the threat alleged in Count 2 was not against a former President, but against the "newly elected POTUS." As just noted, however, one of the two primary candidates for the presidency was Donald Trump, who was a former President. Thus, one of the two possible targets of the Count 2 threat was protected by § 879. And as already explained, the Court cannot conclude as a matter of law that the existence of two possible targets of a death threat means that neither has been truly threatened. If the jury finds both were threatened by Defendant's statement at issue in Count 2, then a former President was threatened and § 879 applies.

In Count 3, Ortiz was charged under 18 U.S.C. § 871 as to threatening President-Elect Trump as to a different statement: "[Defendant] will be entitled to shot the incoming fraudulent elected POTUS from 300 or 666 yards away with 666 rounds for an M-16A2 service rifle at the inauguration on Jan 20, 2025." Again, the court allowed this:

Defendant claims that the statement charged in Count 3 is not a true threat because the words "will be entitled" suggest any threat was conditional. "While the conditional nature of a statement may be a factor in determining whether it constitutes a true threat, conditional language is not dispositive." "Indeed, most threats are conditional; they are designed to accomplish something; the threatener hopes that they will accomplish it, so that he won't have to carry out the threats."

Defendant contends that his use of the Court filing process, the number 666, and the words "fraudulent elected" separates the charged statement from a "sincere intention to cause harm[.]"But the First Amendment does not "require proof that the defendant intends to carry out the threat—that is, actually to inflict the harm that he has threatened. One of the chief evils wrought by a threat is its deleterious and coercive effect on the victim[,]…and that effect is not diminished merely because the defendant is bluffing."

{Defendant argues in his reply that the statements alleged in the indictment use the past tense—"chose" and "shot"—showing that they were not true threats. Doc. 31 at 2-3. Because this argument was raised for the first time in a reply brief, the Court will not consider it.}

Abbie S. Broughton represents the government.

Comments

[Swede425]

Regardless of what happens with this case, I sure hope somebody uses this as an opportunity to try to take away MY super scary rifles.
Reasonably, of course.
For the children, of course.
Because nobody needs these for hunting, of course.
Fingers crossed!

[Supremacy Claus]

To the lawyers here, I would appreciate a review of the immediacy and the available means requirements to make a threat criminally or civilly liable. How do these federal laws not violate the Free Speech Clause in the absence of those 2 elements?

[bye]

So it is a threat (by your own writing) but it might not be meet 2 other requirements. So if it were your daughter would you take that sniffy finger-in-the-air attitude. i wouldn't. Dude would be dead before he could sneeze.

[John F. Carr]

"Ortiz tried to file in court a document"

No litigation privilege here, I guess.

[John F. Carr]

As a juror, I would vote not guilty because the threat is too remote or, in the third count, conditional.

[Stephen Lathrop]

John F. Carr — Do you count yourself a gun rights advocate? Do you see jury exoneration of a self-confessed gun-threat defendant as gun rights support? Or do you think jury conviction of a self-confessed gun-threat defendant would better serve gun rights support?

[bye]

Has nothing to do with guns (yes !!! I will say that) because when you are a full blown psycho nut case they might point a banana at you and say "Bang!!!" or they might just kill you. Like Raisan Bran or Shredded Wheat for breakfast.

[Rossami]

Yeah, this seems way too incoherent and conditional to be a true threat. Crazy people deserve treatment, not jail.

[wvattorney13]

I did a brief on this for a case many moons ago. You are only excused for a conditional threat if you had the privilege to act upon the condition in the first place.

Example. "If you come to my house intending to harm my family, I will shoot you." Allowed. If the condition happens, the shooting is permitted.

"If you wear a blue shirt tomorrow, I will shoot you." Not allowed. It doesn't matter if you had no intention of wearing a blue shirt or whether you even own a blue shirt. The speaker had no right to control the conditional part of the threat.

[JasonT20]

"'I chose to execute the newly elected POTUS by firing an M-16A2 Service Rifle with a magazine of 6 rounds."

So, he makes this specific threat to a single person. That quoted sentence is specific and detailed. But, because the person being threatened was uncertain when he made the threat, and because other statements make things seem conditional, he wants to pretend that it wasn't a real threat and/or that the person being threatened shouldn't have been worried.

"Hey, I know I threatened to kill you, but I was playing games with language in a way that you might not have noticed, so it doesn't count as a real threat."

[bye]

Okay -- a rarity with me-- but you get my complement on that answer. Only a lawyer could be so deranged as to not see what you and I see clearly

[Stephen Lathrop]

Puts me in mind of a related question. The VC is especially keen on the openness of court proceedings. But there can be no doubt that death threats against participants in the judicial process, and against members of their families, have become commonplace. Some reports say such threats have greatly multiplied.

It can only corrode public confidence in judicial integrity to know that judges hand down opinions while under threats of violence, or death to family members. Would it be wise to at least systematize records of threats against the judicial process, and to publicize summaries of the results?

[bye]

A death threat in court should be an automatic extension of sentence, once defendant has been told that can happen.

Why not? If you do this I theaten to kill someone
VS
If you threaten to kill someone I extend your sentence

because -- there are many reasons--- anyone who would add say 5 years to their sentence must be serious about the threat to kill.
Not really Solomonic but it convinces me

[ducksalad]

On election day, only two candidates – Vice President Kamala Harris and former President Donald Trump – realistically could havebecome the “newly elected POTUS.”

Interesting that the criminality hinges on standing in the polls. If he'd said "I'll kill Chase Oliver if he wins the election" it would not be a threat at all.

What's the cutoff? Suppose Harris had been down 25 points in the polls, so that her chance of victory was less than 1%. Would that mean she wasn't threatened? Suppose it was Democratic candidate for a statewide office in Texas?

[wvattorney13]

Interesting point. I think the answer is that the true threat doctrine goes, as the article mentioned, not to whether the speaker intended to carry out the act, but whether he intended to make a threat.

So it would be a fact driven analysis. Under your hypo, the defendant could plausibly argue that no reasonable person would believe he meant to threaten Chase Oliver or even the Libertarian party candidate. That is because a reasonable person would have understood that they clearly would not be the next President and thus his intention would not have been to threaten THOSE people.

As far as a Democrat for statewide office in TX, if it was phrased similarly (e.g. The next Attorney General, J.Q. Republican or J.Q. Democrat) then it seems that at least in the speaker's mind, he considered the Democrat as being a potential winner and the threat was intended towards that candidate. Polls can be wrong after all and its not beyond the realm of reasonable possibility that some Democrat could win in TX.

I guess the test is would it be reasonable to believe that the speaker intended to threaten person X.

I take your point and it is food for thought.

[JasonT20]

"I'm going to kill whoever wins the next Powerball jackpot."

Is that not a real threat because of the 1 in ~300 million chance for anyone one ticket to have the winning numbers? Not to mention that most drawings don't result in a winner and it ends up rolling over? The identity of the person that would be the target of the threat are uncertain, and when the threat would go into effect is uncertain. Is there no possible criminal liability for making a true threat, then?

[JasonT20]

My view is that the uncertainty in both of those is irrelevant. Someone is going to win the Powerball jackpot. Every person that plays is a potential target and is being threatened. The fact that the conditional nature of the threat lowers the odds that the threat would be carried out on any one player does not change the fact that there is 100% chance that there will be a specific target of the threat in the future.