Monday, August 19, 2013

The Governor, the Emails and True Threats

After he was convicted of one count of “making threats against the Governor or her family” in violation of Washington Revised Code §9A.36.090, Robert Locke appealed.  State v. Locke, __ P.3d __, 2013 WL 3999814 (Court of Appeals of Washington 2013).

The case began in “the early morning of January 25, 2011, when Locke sent two emails to the

Governor through a section of the Governor's web site entitled `Contact Governor Gregoire.’ . . . The web page required the sender's first and last name, e-mail address, physical address, city, state, and zip code as contact information.

In his first e-mail, sent at 6:09 AM, Locke identified himself as `Robb Locke’ and provided a phone number; an e-mail address, `robblocke2004’; a zip code, 98334; and a state, Washington. . . .. For his address, Locke entered `1313 Mockingbird Lane,’ an address used in the television comedy `The Munsters.’ . . . For his city, he entered `Gregoiremustdie.’ . . . His message stated,

`I hope you have the opportunity to see one of your family members raped and murdered by a sexual predator. Thank you for putting this state in the toilet. Do us a favor and pull the lever to send us down before you leave Olympia.’ . . .

At 6:11 AM, Locke used the web page to send a second e-mail, providing the same contact information. His second message stated, `You fucking CUNT!! You should be burned at the stake like any heretic.’ . . .

Finally, at 6:13 am, Locke accessed another section of the Governor's web site titled, `Invite Governor Gregoire to an Event.’ . . . Through a form on this web page, Locke requested an event, again identifying himself as `Robb Locke,’ noted that he lived in Washington state, and identified his organization as `Gregarine Must DIe [sic].’ . . . He requested that the event be held at the Governor's mansion and stated the event's subject would be `Gregoire's public execution.’ . . . He wrote that the Governor's role during the event-would be `Honoree,’ the event would last 15 minutes, the media would be invited, and the audience's size would be greater than 150. . . .

State v. Locke, supra

Barbara Winkler, Gregoire’s “executive scheduler” saw Locke’s event request when she came to work on January 25.  State v. Locke, supra. It “alarmed her, and she considered it as serious because it occurred shortly after a recent shooting of” U.S. Representative Gabrielle Giffords.  State v. Locke, supra. She sent the request to “a member of the Executive Protection Unit (EPU) of the Washington State Patrol.”  State v. Locke, supra.

Winkler also contacted Rebecca Larsen, the Governor’s executive receptionist, and Larsen then searched the

computer system for the name Locke provided in the event request and discovered the two earlier e-mails from him. Because Larsen was `alarm[ed]’ by the e-mails, she printed them and gave them to the EPU.

Washington State Patrol Sergeant Carlos Rodriguez of the EPU reviewed the e-mails and event request. After considering their content and the Arizona shootings, he interpreted them as `a serious threat to do harm to the governor. . . . Rodriguez reviewed the communications with Detective James Kirk of the state patrol, who dialed the telephone number provided with the e-mail. A male voice answered, and Kirk asked if he was speaking with Locke. Locke answered yes, and Kirk identified himself and said he wanted to discuss the e-mails. Locke replied, `Yeah,’ and either hung up or lost cellular service. . . . When Kirk called back, the call went to voice mail.

Kirk and Trooper Albert Havenner went to an address believed to be Locke's residence and saw someone matching [his] description walking down the street. Havenner contacted the individual. Locke identified himself and replied, `Yeah, I know why you're here. . . .I figured you guys would be contacting me.’ . . . Kirk identified himself and said he had spoken with Locke on the telephone earlier that morning. Locke replied, `[Y]eah, I want you to know . . . I didn't hang up on you, I have poor cell service.’ . . . Kirk then transported Locke to a state patrol office. . . .

Locke acknowledged that he sent the e-mails and an event request from a computer in his residence. He [said] he did this because, while Gregoire was the attorney general, he filed a complaint with that office about an employer depriving him of his last two paychecks, and the attorney general's office failed to follow up. In October 2010, Locke became unable to work because of a back condition, and the Department of Social and Health Services twice reduced benefits he was receiving.

When Locke awoke the morning of January 25, 2011, he was angry over those circumstances and having to walk three miles to physical therapy while in pain. He described his communications to the Governor as `giv[ing] her a piece of [his] mind,’ but he did not recall making any direct threats to her safety and had no intention of carrying out any threats. . . . He `profusely apologize[d] for [his] temper’ and said that `it was . . . the worst judgment’ to have sent the communications, but he `needed the outlet at the moment . . . [a]nd, it was there.’

State v. Locke, supra.  (If you would like to read a contemporary news story about these events, check out the story you can find here.)

Locke made several arguments on appeal, but this post only examines one of them:  He claimed the evidence at trial did not prove beyond a reasonable doubt that he made “a `true threat’ as defined under 1st Amendment case law”.  State v. Locke, supra.  As this site explains, the 1st Amendment

has never provided absolute protection to all forms of speech. There are several unprotected categories of expression, including but not limited to fighting words, obscenity, extortion, perjury and false advertising. Another unprotected category is the true threat. The First Amendment does not give a person the right to walk up to someone else and say `I am going to kill you’ or to announce in an airport, `I am going to bomb this plane.’

The Court of Appeals began its analysis of Locke’s argument that his communications to the Governor did not constitute “true threats” by explaining that sufficient evidence supports a

conviction if, when viewed in the light most favorable to the State, any rational trier of fact could have found the essential elements of the charged crime proved beyond a reasonable doubt. State v. Hosier, 157 Wn.2d 1, 133 P.3d 936 (Washington Supreme Court 2006).  Subject to the rules governing 1st Amendment analysis set out below, we draw all reasonable inferences from the evidence in the State's favor. . . .State v. Hosier, supra. . . . [W]e consider circumstantial evidence as probative as direct evidenceState v. Goodman, 150 Wn.2d 774, 83 P.3d 410 (Washington Supreme Court 2004).

We may infer specific criminal intent of the accused from conduct that plainly indicates such intent as a matter of logical probability. State v. Goodman, supra. Finally, we defer to the fact finder on issues of conflicting testimony, witness credibility, and persuasiveness of the evidence. State v. Thomas, 150 Wn.2d 821, 83 P.3d 970 (Washington Supreme Court 2004). . . .

State v. Locke, supra. 

The court then noted that Locke was convicted under Washington Revised Code § 9A.36.090, which provides as follows:

`Whoever knowingly and willfully deposits for conveyance in the mail or for a delivery from any post office or by any letter carrier any letter, paper, writing, print, missive, or document containing any threat to take the life of or to inflict bodily harm upon the governor of the state or his or her immediate family . . . or knowingly and willfully otherwise makes any such threat against the governor . . . shall be guilty of a class C felony.’

State v. Locke, supra. 

The Court of Appeals took up the true threats issue, explaining that the 1st Amendment,

applicable to the States through the 14th Amendment, provides that `Congress shall make no law . . . abridging the freedom of speech.’ Virginia v. Black, 538 U.S. 343 (2003). The 1st Amendment, though, does not extend to speech held to be unprotected, one category of which comprises `true threats.’ State v. Allen, 176 Wn.2d 611, 626, 249 P.3d 679 (Washington Supreme Court 2013)

A true threat is `a statement made in a context or under such circumstances wherein a reasonable person would foresee that the statement would be interpreted . . . as a serious expression of intention to inflict bodily harm upon or to take the life of another person.’ State v. Allen, supra (quoting State v. Kilburn, 151 Wn.2d 36, 84 P.3d 1215 (Washington Supreme Court 2004)). To avoid violating the1st Amendment, our Supreme Court . . . will `interpret statutes criminalizing threatening language as proscribing only unprotected true threats.’ State v. Allen, supra. . . .

State v. Locke, supra. 

The court then outlined the principles it employs in deciding whether particular communications constitute “true threats:”

A true threat is a serious threat, not one said in jest, idle talk, or political argument. State v. Kilburn, supra.  Stated another way, communications that `bear the wording of threats but which are in fact merely jokes, idle talk, or hyperbole’ are not true threats. State v. Schaler, 169 Wn.2d 274, 236 P.3d 858 (Washington Supreme Court 2010).

The nature of a threat `depends on all the facts and circumstances, and it is not proper to limit the inquiry to a literal translation of the words spoken.’ State v. C.G., 150 Wn.2d 604, 80 P.3d 594 (Washington Supreme Court 2003). Statements may `connote something they do not literally say. . . .’ Planned Parenthood of Columbia/Willamette, Inc. v. A.L.C.A., 290 F.3d 1058 (U.S. Court of Appeals for the 9th Circuit 2002). . . . [O]ur court has held that `whether a statement is a true threat or a joke is determined in light of the entire context’ and that a person can indirectly threaten to harm or kill another. See State v. Kilburn, supra. Further, `[t]he speaker of a “true threat” need not actually intend to carry it out. It is enough that a reasonable speaker would foresee that [it] would be considered serious.’ State v. Schaler, supra.

State v. Locke, supra. 

The Court of Appeals then “turn[ed] to whether any of Locke’s communications constituted a true threat.”  State v. Locke, supra.  It started with the first email, which

identified his city as `Gregoiremustdie’ and stated his desire for the Governor to witness a family member `raped and murdered by a sexual predator.’ . . .The e-mail also stated that the Governor had `put this state in the toilet’ and requested that she `pull the lever to send us down before you leave Olympia.’

Although identifying his city as `Gregoiremustdie’ is surely menacing, the force of the message itself is the desire that the Governor see a family member raped or murdered, coupled with the opinion that the Governor had put the state `in the toilet.’ Although crude and upsetting, this is more in the nature of hyperbolic political speech, predicting threatening personal consequences from the state's policies. Under the standards above, this does not rise to the level of a true threat. . . .

State v. Locke, supra. 

The court then took up his second email, sent “only two minutes later” and which

intensified in its violent tone and content. In this e-mail, Locke again identified his city as `Gregoiremustdie’; addressed the Governor with an emphatic, gender-specific epithet; and expressed his opinion that she should be `burned at the stake like any heretic.’ . . . Unlike the first e-mail, this expresses more than the desire that the Governor's policies will lead to horrible consequences to her family. Rather, its message, expressed twice, is that the Governor should be killed.

Its passive phrasing, though, blunts the implication that Locke is threatening to do this himself. . . . Locke's message is that someone should kill the Governor, not that he intends to. . . . [S]ince burning heretics at the stake is a historically political act, the second e-mail is removed from the realm of a true threat in the same way the first e-mail was protected by its political content. 

There is a conceptual gulf, though, between the first e-mail's hope that the Governor's family would suffer harm from the Governor's policies and the message of the second e-mail that the Governor should be killed in a horrible way once reserved for religious and political dissenters. The ancient political or religious pedigree of burning at the stake in no way transforms its menace into legitimate political speech today.

State v. Locke, supra.  The court concluded that when the email is “viewed in isolation, we cannot deem it unprotected speech”, i.e., not a true threat.  State v. Locke, supra. 

It noted, though that that this email plus the “event request . . . do cross into the territory of a true threat.”  State v. Locke, supra.  It pointed out that his event request, which was sent “only two minutes after the second email, further”

escalated the violent tone and content of his communications. Locke sent the request through a section of the Governor's web site entitled `Invite Governor Gregoire to an Event.’ He identified his organization as `Gregoire Must DIe [sic],’ requested that the event be held at the Governor's mansion, and stated the subject of the event would be `Gregoire's public execution,’ at which she would be the `Honoree.’

State v. Locke, supra. 

The court noted Locke admitted he was aware of the Giffords shooting “17 days earlier” and found that given the context, a “reasonable speaker” would anticipate the Governor “would take seriously an invitation to her own public execution from “Gregoire Must DI3.”  State v. Locke, supra.  It also pointed out that while Locke “did not directly state that he himself would kill her, a direct threat is not required for his communications to constitute a true threat.”  State v. Locke, supra.  It noted that the

menace of the communication was further heightened by its specificity. Locke requested a 15–minute event at the Governor's mansion, with media present, with an audience of over 150, at which the Governor would be the honoree, and . . . would be publicly executed. These details throw the threat into higher relief and translate it from the realm of the abstract to that of the practical. They plainly suggest an attempt to plan an execution, even though Locke may have intended nothing.

Further, Locke had no preexisting relationship or communications with the Governor from which he might have an expectation that she would not take his statements seriously. . . . In fact, all the witnesses from the Governor's office testified that they took Locke's communications as serious threats. Finally, Locke himself seemed to acknowledge that he knew his threats would be taken seriously; he admitted that he knew why the state patrol contacted him, that he expected them to do so, and that he exercised `the worst judgment’ in sending the communications.

State v. Locke, supra. 

The Court of Appeals therefore held that the evidence proved, beyond a reasonable doubt, that Locke’s communications constituted true threats.  State v. Locke, supra.  One of the justices dissented, arguing, in part, that “no reasonable person” would interpret Locke’s comments about burning the Governor at the stake as a true threat.  State v. Locke, supra.  The dissent also argued that the apparently random choices Locke made in submitting his event request, i.e., choosing “15 minutes as the anticipated time”, “exacerbate[d] the ridiculousness of Locke’s request” and inferentially rebutted the premise that they constituted true threats.  State v. Locke, supra. 

Since the majority found the second and third communications were true threats, it affirmed Locke’s conviction and sentence of “12 months in jail and 12 months of community custody”. State v. Locke, supra.  It remanded to the lower court to vacate the mental health condition.  State v. Locke, supra. 

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