The Volokh Conspiracy
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Year in Prison for Role in Hate Crime Hoax
So Judge Regina M. Rodriguez (D. Colo.) decided yesterday in U.S. v. Blackcloud; for more on the case, see this November 2024 press release by the U.S. Attorney's office in Colorado:
The United States Attorney's Office for the District of Colorado announces that Derrick Bernard Jr., 35, [Ashley] Blackcloud, 40, and Deanna West, 38, were indicted by a federal grand jury for maliciously conveying false information about a threat made by means of fire: a burning cross in front of a campaign sign defaced with a racial slur.
According to the indictment, the three defendants were charged for their alleged roles in a conspiracy to spread disinformation about the threat. The 2023 Colorado Springs mayoral run-off election involved Candidate 1, who was Black, and Candidate 2, who was white. After the initial election but before the run-off, Bernard sent a message to the other defendants in which he explained he was "mobilizing my squad in defense. Black ops style big brother." He also sent messages referencing a desire to prevent "the klan" from gaining political control of the city. Bernard then worked with Blackcloud and West to stage, at an intersection in the City of Colorado Springs in the early hours of April 23, 2023, a cross burning in front of a campaign sign for Candidate 1 defaced with a racial slur. The three then allegedly spread false information about the event through an email from an anonymous source to various news and civic organizations.
And from the indictment:
During the election, supporters of CANDIDATE 1 placed a campaign sign encouraging others to vote for CANDIDATE 1 in a grassy area on the northwest corner of the intersection of North Union Boulevard and East Fillmore Street, two of Colorado Springs's major traffic arteries. On or about April 23, 2023, between approximately 2:30 a.m. and 3:30 a.m. BERNARD, BLACKCLOUD, and WEST worked together to place a wooden cross in front of that campaign sign. Red spray paint, similar in kind to a can later found in the passenger compartment of BLACKCLOUD's car, was used to write the word "nigger" on the sign. The wooden cross was then set on fire….
[L]ater in the evening …, BLACKCLOUD and WEST worked together to send an email … to, among others, local broadcast news outlets. Attached to the email was the above photograph and the video[, which they themselves took]. Several news organizations published news stories on the cross burning.
The indictment also alleges other things the defendants did to further publicize the supposed "hate crime" that they themselves created.
All this, the prosecutors argue, constitutes a violation of 18 U.S.C. § 844(e) (as well as conspiracy to violate it):
Whoever, through the use of the mail, telephone, telegraph, or other instrument of interstate or foreign commerce, or in or affecting interstate or foreign commerce,
willfully makes any threat,
or maliciously conveys false information knowing the same to be false, concerning an attempt or alleged attempt being made, or to be made, to kill, injure, or intimidate any individual or unlawfully to damage or destroy any building, vehicle, or other real or personal property by means of fire or an explosive
shall be imprisoned for not more than 10 years or fined under this title, or both.
From Judge Rodriguez's opinion in May rejecting a First Amendment challenge to the prosecution:
For the government to succeed on [the intimidation] charge, it must prove that the communication in question was a true threat lying outside of First Amendment protection…. "The 'true' in [the term 'true threat'] distinguishes what is at issue from jests, '[political] hyperbole,' or other statements that when taken in context do not convey a real possibility that violence will follow (say, 'I am going to kill you for showing up late')." True threats instead "encompass those statements where the speaker means to communicate a serious expression of an intent to commit an act of unlawful violence to a particular individual or group of individuals." [A true threat] "subject[s] individuals to 'fear of violence' and to the many kinds of 'disruption that fear engenders.'" … [T]he mens rea required to prove a true threat is recklessness, meaning that "a speaker is aware that others could regard his statements as threatening violence and delivers them anyway." …
Defendants argue that they did not intend to threaten CANDIDATE 1 but instead intended to support his campaign. Defendant Bernard argues that "the distribution of the video actively disavowed and condemned the cross burning: (1) Expressed outrage at the act; (2) Blamed political opponents; (3) Urged support for Candidate 1; and (4) sought to mobilize voters" and therefore the context of the communication was "political theater." … [But t]he reference to hate crimes in the email indicates that the Defendants were aware that others who saw the video of the burning cross in front of the defaced political sign would, or should, view it as a threat or intimidation to CANDIDATE 1 and/or his supporters. It's not clear that others who saw the video understood the context that was intended…. CANDIDATE 1 may testify at trial as to what the Defendants' communication conveyed to him. A reasonable jury could find that Defendants meant their communication not as "political hyperbole" or "political theater" but rather as statements "convey[ing] a real possibility that violence will follow."
In sum, the Court finds that this is not a case where the statements made by the Defendants were so clearly protected by the First Amendment that the Court can hold, as a matter of law, that they did not constitute a true threat. Instead, the Court finds that "whether a defendant's statement is a true threat or mere political speech is a question for the jury." Considering all of the relevant factors, the Court has little difficulty concluding that a reasonable juror could find that the Defendants' comments were a true threat….
