"True Threats," Facebook and "Blowing Off Steam"

This post examines an opinion recently issued by a U.S. District Court Judge who sits in the U.S. District Court for the Northern District of Indiana:  U.S. v. Bradbury, 2015 WL 2449641 (May 22, 2015).  He begins by explaining that the federal government has charged

Samuel Bradbury with willfully threatening the use of fire or an explosive in violation of 18 U.S. Code §844(e). The indictment was recently superseded to add an additional charge of maliciously conveying information concerning the use of fire under the same section of the criminal code. . . . In essence, the indictment alleges Bradbury posted a message on Facebook in which he threatened to bomb the Tippecanoe County Courthouse and kill certain law enforcement officers and judges. Bradbury has moved to dismiss the indictment on the grounds that § 844(e) is unconstitutionally overbroad and his post was protected speech under the 1st Amendment. 

U.S. v. Bradbury, supra.

The judge goes on to explain that “[o]n the evening of June 19, 2014, Samuel Bradbury signed on to Facebook and posted a message on his `wall.’” U.S. v. Bradbury, supra. In an opinion the judge issued roughly two weeks earlier, he quoted the message Bradbury posted on his wall in its entirety:

I can't keep silent on this conspiracy anymore. I have to reveal some truth. My buddy and comrade Ant has been catching some flack for some of his posts about killing cops. I have to let out the truth. Jerad and Amanda Miller were losers. They were part of our group, the 765 Anarchists, the town's cop killing group run by none other than myself, Sam Bradbury. When we discovered that Jerad and Amanda were CIs and in with the boys in blue, we sent them out to the Bundy Ranch to cause controversy elsewhere because we didn't need them snitching on our business. I hadn't heard from him since that event, but some of our comrades gave the command and that's why Jerad and Amanda Miller killed those cops in Las Vegas.

I thought Jerad was cool, but fuck him, he was a CI. Great job I must say, but not what we wanted. We, the 765 Anarchists, including myself and Ant are part of a much larger plot that we've been forming for years to kill cops in the local area, and specifically to take out WLPD Officer Troy Green and Tippecanoe County Sheriff, Tracy Brown. Jerad and Amanda were just following 765 Anarchist group orders, but they had fallen out of favor with the group after we discovered they were working with the police as confidential informants. While we are glad that they killed some police, the 765 Anarchists are looking to make waves in the 765 area, specifically Lafayette.

The top two on our hit list are Troy Green of the WLPD and Tracy Brown, Tippecanoe County Sheriff. We have field agents out currently gathering information and planning the attack. We have gathered enough thermite and explosives that we intend to not only kill those two pigs and any others who get in our way, but also to cause extreme damage to the county's various offices' equipment, including police cars and police buildings. Before the month is over, we intend to incinerate and destroy no less than 6 police cars, as well as the Tippecanoe County Courthouse, with hits specifically targeted on Judge Les Meade and Judge Loretta Rush also. The courthouse will be blown to pieces within the month, we have agents operating all over the city, and some all over the country. Ant is nothing more than a fall boy, although we do have plans to use him in a suicide strike on the police or a suicide bombing on a local police building before we are through. Our arsenal is massive, and our group has well over 50 supremely dedicated members who are willing to die. I can't let this story go on falsely anymore, Jerad and Amanda Miller didn't do shit, they were outcasts of the group, but they brought us the attention we needed. I, Sam Bradbury, am responsible for the organization of the group and the acquisition of the chemical weapons, incendiaries, explosives, munitions, and general arms.

We will not stop this plan, we will cause chaos and terror. We will destroy the Tippecanoe County Courthouse in a blaze of glory and we will take out Tippecanoe County Sheriff Tracy Brown, no matter what the cost, even if we lose all of our members in the process, we will not go down without a fight and causing serious damage. So watch out, the cop killers are out. The 765 Anarchists are going to purge the vile pig scum from this land and restore constitutional rights to the people. Call us crazy, call us killers, call us heroes and patriots. We're okay with all of it. Remember–KILL COPS, STICK PIGS, AND WATCH OUT FOR THE 765 ANARCHISTS, INCLUDING SAM BRADBURY AND ANT!

(FREE SPEECH EXERCISE FOOLS)

U.S. v. Bradbury, 2015 WL 2189065 (U.S. District Court for the Northern District of Indiana May 11, 2015). In this opinion, the judge noted that a “few days after the post went up, it came to the attention of Detective Eager of the West Lafayette Police Department”, who opened an investigation into the post and the clams it made. U.S. v. Bradbury (May 11), supra.  As this news story notes, both the federal government and the State of Indiana have charged Bradbury for the comments in his Facebook post. And as Wikipedia explains, under the dual sovereignty doctrine, someone can be prosecuted both by the federal government and by a state for the same conduct, if the conduct constitutes a crime under the law of both jurisdictions.

In his more recent opinion, the judge also explains that

[e]vidently others responded to Bradbury's alarming post with some discomfort and wrote comments stating that they did not agree with his threatening rant. This must have caused Bradbury to suffer from writer's remorse, because a short while later he added disclaiming comments to his earlier post. I say that this happened `a short while later,’ because, I am told by the parties that the exact timing of Bradbury's subsequent comments are unknown. In any event, what he said in his supposed disclaimer was that his prior post was a `complete satire’ and that he was merely engaging `in an exercise of whether free speech still exists in America.’ Bradbury goes on to say that `everything in the (original) post is fake. There is no group, there are no weapons or bombs, and there is no plot’.

U.S. v. Bradbury, supra (May 22).

Getting back to the more recent opinion, after he reviewed the facts above, the judge took up the issue raised by Bradbury’s motion to dismiss the indictment, i.e., whether 18 U.S. Code § 844(e) is “unconstitutionally overbroad and his post was protected speech under the 1st Amendment.” U.S. v. Bradbury, supra.  He returns to that issue later in his opinion, so we will take it up later in this post.

The District Court Judge began his analysis of Bradbury’s argument by noting that, notwithstanding Bradbury’s disclaimers, “the damage had already been done” because Bradbury “was arrested and charged with a violation of 18 U.S. Code § 844(e)”. U.S. v. Bradbury, supra (May 22).  He begins his analysis by quoting 18 U.S. Code § 844(3):

Whoever, through the use of the mail, telephone, telegraph, or other instrument of interstate of 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.

The judge goes on to explain that,

[a]s a plain reading of the statute reveals, there are two ways to violate it: the first is by making `threats’ to use fire or explosives to do harm; the second is to `maliciously convey false information’ to do the same thing. Cutting through the clutter of the statute, it seems clear that the first prong punishes the making of actual threats while the latter one punishes people who convey phony threats. The real thrust of the second prong is to prohibit the making of bomb threats where no bomb actually exists. Whether there is any real difference between the two prongs is debatable. A threat can be phony but it still be an actual threat. More on that later. In any event, Bradbury has moved to dismiss the indictment on 1st Amendment grounds arguing that § 844(e) is unconstitutionally overbroad, both on its face and as applied to him. . . .

U.S. v. Bradbury, supra (May 22). 

He goes on to explain that a statute regulating speech can be

overbroad when it `prohibits a substantial amount of protected speech.’ U.S. v. Williams, 553 U.S. 285 (2008). But facial challenges to criminal statutes on overbreadth grounds are discouraged. See Sabri v. U.S., 541 U.S. 600 (2004). The overbreadth doctrine is `strong medicine’ and must be employed with hesitation and `only as the last resort.’ See New York v. Ferber, 458 U.S. 747 (1982) (quoting Broadrick v. Oklahoma, 413 U.S. 601 (1973)). That said, the first step of an overbreadth analysis is to construe the challenged statute in order to see how far it reaches. See U.S. v. Williams, supra. And, if possible, I must construe the statute so as to avoid any constitutional problems. See New York v. Ferber, supra.

U.S. v. Bradbury, supra (May 22). 

The District Court Judge then begins his analysis of Bradbury’s overbreadth argument:

It is true that prohibiting the making of threats and the conveying of maliciously false information, as § 844(e) does, criminalizes speech based on its content, and ordinarily, the First Amendment bars the government from content-based speech restrictions. Ashcroftv. ACLU, 535 U.S. 564 (2002). But speech integral to criminal conduct is a different story. That type of speech, like fighting words, threats, and solicitation, is categorically outside of First Amendment protection. U.S. v. White, 610 F.3d 956 (U.S. Court of Appeals for the 7th Circuit 2010). . . .  

A threat constitutes unprotected speech when it is a `serious expression of an intent to commit an act of unlawful violence to a particular individual or group of individuals.’ Virginia v. Black 538 U.S. 343 (2003). In order to avoid any constitutional problems, Courts have interpreted § 844(e) as prohibiting only this type of speech, often referred to as `true threats.’ See United States v. Spruill, 118 F.3d 221 (U.S. Court of Appeals for the 4th Circuit 1997) (holding 844(e) proscribes only `true threats’); See also U.S. v. v. Viefhaus, 168 F.3d 392 (U.S. Court of Appeals for the 10th Circuit 1999). . . . As construed then, § 844(e) is not overbroad because it does not sweep up `a substantial amount of protected expressive activity.’ See U.S. v. Williams, supra. It only criminalizes true threats, which are outside of 1st Amendment protection.

U.S. v. Bradbury, supra (May 22). 

The judge then begins his analysis, explaining that

[d]eciding when something is a `true threat’ and when it is mere hyperbole is dicey business. A lot of people spout off online via Twitter, Facebook and other social media. That, of course, is their 1st Amendment right. But determining when the comments cross the line from permissible 1st Amendment expression to true threats is difficult. The line is hazy, and the question becomes does speech have to be threatening to a reasonable person who may hear or read the comment or is it the intent of the person making the statement that matters? In other words, is the standard an objective or subjective one? The Supreme Court is grappling with those very questions right now in the case of Elonis v. United States, No.13–983. The appellate decision can be found at 730 F.3d 321 (U.S. Court of Appeals for the 3d Circuit 2013).

Bradbury concedes, as he must, that true threats fall outside of 1st Amendment protection. But he takes issue with how such threats are defined. The [U.S. Court of Appeals for the 7^th Circuit] has traditionally employed an objective standard when determining whether a statement constitutes a true threat. The inquiry asks whether a reasonable speaker would understand that his statement would be interpreted as a threat or whether a reasonable listener would interpret the statement as a threat. See U.S. v. Parr, 545 F.3d 491 (U.S. Court of Appeals for the 7th Circuit 2008). Bradbury argues that this objective standard renders § 844(e) unconstitutionally overbroad.

U.S. v. Bradbury, supra (May 22). 

The judge goes on to point out that

[h]ere's his argument. Threats are barred because they are delivered in a context that causes fear and disruption. `A prohibition on true threats protects individuals from fear of violence and the disruption that fear engenders.' Virginia v. Black, supra (quoting R.A.V.v. City of St. Paul, Minn., 505 U.S. 377 (1991)). Bradbury argues that § 844(e) is overbroad because, as construed, § 844(e) criminalizes speech even if the speaker had no intention of disrupting anything or intimidating anyone. Perhaps he was just blowing off steam or composing a work of fiction. Further, the statute bars threatening speech even if the threat is not actually communicated to someone who could be threatened or whose activities could be disrupted. As a result, the argument goes, § 844(e) sweeps up too much protected speech. In order to pass constitutional muster, then, Bradbury contends that the Court must require 1) that the speaker specifically intend to intimidate someone or cause public disruption, and 2) that the threat actually be conveyed to the threatened party.

U.S. v. Bradbury, supra (May 22). 

The judge, however, explained that the requirement that the threat be

communicated to the threatened party is foreclosed by U.S. v. Parr, 545 F.3d 491 (U.S. Court of Appeals for the 7th Circuit 2008). In that case, Parr was charged with threatening to blow up the federal building in Milwaukee in violation of 18 U.S. Code § 2332a(a)(3). . . . Parr's threats were made in the course of private conversations with his prison cellmate who, unbeknownst to Parr, was an informant. U.S. v. Parr, supra. The 7th Circuit upheld Parr's conviction despite the fact that Parr's threat was made during the course of a personal, private conversation with someone who had no connection to the threatened building. In doing so, the court held that a true threat `doesn't need to be communicated directly to its victim.’ U.S. v. Parr, supra.  

Nor does the 7th Circuit, at least currently, require specific intent. Until the Supreme Court says otherwise, perhaps through Elonis, I am bound to follow and apply an objective standard when determining whether a statement constitutes a threat. U.S. v. Stewart, 411 F.3d 825 (U.S. Court of Appeals for the 7th Circuit 2005); U.S. v. Saunders, 166 F.3d 907 (U.S. Court of Appeals for the 7th Cir.1999). As Bradbury points out, the Supreme Court complicated the objective/subjective issue in Virginia v. Black, when the Court stated that `[t]rue threats 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.’ Virginia v. Black, supra (emphasis added). Some took this language to indicate that the Supreme Court had imported a subjective-intent analysis into the true threats doctrine. In Parr, the Seventh Circuit considered the possibility of switching to a subjective intent standard in light of the Black decision, but, ultimately, did not decide the question. U.S. v. Parr, supra. So I am still bound to apply the objective standard. Once again, whether the standard is a subjective or objective one could be answered any day now in Elonis.

U.S. v. Bradbury, supra (May 22). 

The judge also commented, parenthetically, that

[a]s an aside, it's worth noting that most Circuit Courts [of Appeal] that have considered the issue have stuck with the objective standard, notwithstanding what was said by the Supreme Court in Virginia v. Black. See, e.g., U.S. v. Martinez, 736 F.3d 981 (U.S. Court of Appeals for the 11th Circuit 2013) ([18 U.S. Code] § 875(c)] does not require the government to prove a defendant specifically intended his or her statements to be threatening); U.S. v. Mabie, 663 F.3d 322 (U.S. Court of Appeals for the 8th Circuit 2011) (government need only prove a reasonable person would have found defendant's communications conveyed an intent to cause harm or injury. . . .

I think the majority approach is correct. A subjective intent standard would fail to protect the public from the fear and disruption caused by statements that a reasonable speaker would know were threatening, even if he meant no harm. The better-safe-than-sorry response from law enforcement in this case proves the point. Requiring evidence of specific intent could also prove to be very difficult and time-consuming. If Bradbury can convince a jury that no reasonable person could have taken him seriously, then he will be rightly acquitted. But he must face that jury. Accordingly, Bradbury's facial challenge to 844(e) fails because the statute regulates a prohibited category of speech—objective true threats-- and is tailored to ensure a `direct causal link between the restriction imposed and the injury prevented.’ U.S. v. Alvarez, 132 S.Ct. 2537 (2012).

U.S. v. Bradbury, supra (May 22). 

The District Court Judge therefore concluded by explaining that Bradbury also brought

an as-applied challenge to the indictment. He argues that his Facebook post is constitutionally-protected political speech and therefore cannot form the basis of a criminal prosecution. Bradbury may well be right. But, as I said, whether a speech is a true threat or just political hyperbole is a question for the jury at trial, and not for the Court at the motion to dismiss stage. U.S. v. Parr, 545 F.3d 491 (U.S. Court of Appeals for the 7th Circuit 2008) (whether a defendant's statements are ultimately deemed a threats is a question for the jury). . . .

U.S. v. Bradbury, supra (May 22). 

He therefore denied Bradbury’s motion to dismiss the charge against him.  U.S. v. Bradbury, supra (May 22).  As noted above, his trial on these federal charges is scheduled for later this year (as is his trial on the parallel state charges). 

Murder, Aggravated Assault and the Cell Phone Location Data

After Kendrick Herring was charged with a number of crimes, which are listed later in this post, he filed a motion to suppress “any evidence obtained as a result of the search and seizure of his real-time cellphone location data.”  Herring v. State, 2015 WL 2436457 (Florida Court of Appeals – 1^st District 2015).  To understand the charges, and the motion to suppress, it is necessary to understand how the prosecution arose. 

The Court of Appeals began its opinion by explaining that

[o]n March 18, 2011, Timmy Andrew and [Herring] made contact via cellphone to arrange a drug deal. Andrew and his friend, Terry Eubanks, met [Herring] around 10:30 p.m. When they arrived at the address [Herring] gave Andrew, [Herring] and Andrew discussed the sale, and [Herring] then opened fire on the vehicle Andrew and Eubanks were occupying. Andrew and Eubanks managed to escape from the scene, fled to Eubanks' home, and contacted law enforcement. Andrew died of his injuries, and Eubanks suffered a gunshot wound to his arm.

Around 11:15 p.m., Eubanks told law enforcement that Andrews and [Herring] had been communicating via cellphone. At 1:52 a.m., law enforcement contacted the cellphone provider using an exigent circumstances form and asked for [Herring’s] real-time cellphone location data. Around 2:50 a.m., the cellphone provider began sending the real-time cellphone location data. [Herring] was located using this data and was arrested around 4:00 a.m. During [Herring’s] arrest, law enforcement recovered a .45 caliber handgun, which matched the projectiles recovered from Andrew as well as the casings found at the scene of the shooting. Law enforcement also recovered the cellphone that was used to communicate with Andrew earlier in the evening.

Herring v. State, supra.

Herring was charged with “(1) second-degree murder; (2) attempted first-degree murder; (3) aggravated assault on a law enforcement officer; (4) possession of a firearm by a convicted felon; (5) carrying a concealed firearm; and (6) resisting an officer with violence.” Herring v. State, supra.  He responded by filing a motion to suppress,

arguing that his real-time cellphone location data was illegally seized because law enforcement did not seek a warrant and none of the warrantless search and seizure exceptions applied. [Herring] sought to suppress the cellphone, firearm, and all other physical evidence recovered during his arrest. Following a suppression hearing, the trial court entered an order finding that there were exigent circumstances in this case that abrogated law enforcement's requirement to obtain a warrant.

Herring v. State, supra.

The Court of Appeals began its analysis of the issues Herring raised on appeal by explaining that the

standard of review for a motion to suppress is summarized in State v. Gandy, 766 So.2d 1234 (Florida Court of Appeals – 1^st District 2000):

`A trial court's ruling on a motion to suppress comes to us clothed with a presumption of correctness, and we must interpret the evidence and reasonable inferences and deductions in a manner most favorable to sustaining that ruling. Johnson v. State, 608 So.2d 4 (Florida Supreme Court1992). . . .  In this case, the facts are undisputed and supported by competent substantial evidence. See Caso v. State, 524 So.2d 422 (Florida Supreme Court (1988). . . . Accordingly, our review of the trial court's application of the law to the facts is de novo. See United States v. Harris, 928 F.2d 1113 (U.S. Court of Appeals for the 11th Circuit 1991). In addition, we are constitutionally required to interpret search and seizure issues in conformity with the 4th Amendment of the United States as interpreted by the U.S. Supreme Court. See Fla. Constitution art. I, § 12; Perez v. State, 620 So.2d 1256 (Florida Supreme Court1 993). . . .’  

Herring v. State, supra (quoting State v. Gandy, supra).

The Court of Appeals then took up Herring’s argument in this appeal, explaining that he

argues that he had a reasonable expectation of privacy in his real-time cellphone location data. The Florida Supreme Court in Tracey v. State recently held that `regardless of Tracey's location on public roads, the use of his cell site location information emanating from his cell phone in order to track him in real time was a search within the purview of the 4th Amendment for which probable cause was required.’ 152 So.3d 504 (Florida Court of Appeals 2014). As such, [Herring] is correct that he has a reasonable expectation of privacy in his real-time cellphone location data.

Herring v. State, supra.

The court went on to explain that the

circumstances at issue here occurred prior to the Tracey ruling, and the State argues that the good faith exception applies. However, in Tracey, the court held that because there was `no warrant, court order, or binding appellate precedent authorizing real time cell site location tracking,’ the good faith exception was not applicable. Tracy v. State, supra. As such, here, because there is no warrant, court order, or binding appellate precedent providing that one does not have a reasonable expectation of privacy in real-time cellphone location data, the good faith exception does not apply.

Herring v. State, supra.

As Wikipedia explains, in United States law,

the good-faith exception . . . is a legal doctrine providing an exemption to the exclusionary rule.

The exemption allows evidence collected in violation of privacy rights as interpreted from the 4th Amendment to be admitted at trial if police officers acting in good faith . . .  relied upon a defective search warrant -- that is, they had reason to believe their actions were legal (measured under the reasonable person test).

As Wikipedia also explains, under the 4^th Amendment officers can “conduct warrantless searches in several types of exigent circumstances where obtaining a warrant is dangerous or impractical.” You can read more about that here.

The Court of Appeals then analyzed the trial judge’s holding that “there were exigent circumstances in this case that abrogated law enforcement's requirement to obtain a warrant.” Herring v. State, supra. It began by explaining that the trial judge

found there were exigent circumstances that relieved law enforcement of its duty to obtain a warrant. Warrantless searches and seizures are per se unreasonable under the 4th Amendment subject to only a few exceptions. See Katz v. U.S. 389 U.S. 347 (1967). One of these exceptions is for exigent circumstances. Lee v. State, 856 So.2d 1133 (Fla. Florida Court of Appeals - 1st Circuit 2003).

There is no exhaustive list of what constitutes exigent circumstances, but this Court has identified the following factors as indicators of exigency:

(1) the gravity or violent nature of the offense with which the suspect is to be charged; (2) a reasonable belief that the suspect is armed; (3) probable cause to believe that the suspect committed the crime; (4) strong reason to believe that the suspect is in the premises being entered; and (5) a likelihood that delay could cause the escape of the suspect or the destruction of essential evidence, or jeopardize the safety of officers or the public.

Lee v. State, supra. . . .

Here, the suspect was to be charged with murder and attempted murder. Law enforcement officers had a reasonable belief that the suspect was armed because they did not recover a firearm from the scene of the shooting. The officers also feared that a delay in the capture of the suspect could jeopardize the safety of law enforcement or the public. As such, there were various factors here that indicated exigent circumstances.

Herring v. State, supra.

The Court of Appeals, though, also went on to find that

when determining whether sufficient exigent circumstances exist, courts examine the totality of the circumstances. Seibert v. State, 923 So.2d 460 (Florida Supreme Court 2006) . . . . One such circumstance that courts look to is whether law enforcement had the time to secure a warrant. Lee v. State, supra (`Some set of facts must exist that precludes taking the time to secure a warrant’). `[I]f time to get a warrant exists, the enforcement agency must use that time to obtain the warrant.’ Hornblower v. State, 351 So.2d 716 (Florida Supreme Court 1977).

Based on the record before us, it appears that the State failed to present testimony to establish that officers could not have obtained a warrant during the 2.5 hour period at issue. Further, there was no testimony that the officers made an attempt to obtain a warrant or that they considered making such an attempt. Accordingly, under the facts presented, the totality of the circumstances does not demonstrate exigent circumstances to overcome the warrant requirement.

Herring v. State, supra.  The court therefore reversed Herring’s conviction. 

This is one of those cases in which the exclusionary rule, which bars the use of unconstitutionally obtained evidence, exacts a high price. As Wikipedia notes, in the early years of this century, U.S. courts were beginning to adopt the exclusionary rule, over the objections of other judges, one of whom was the highly respected Benjamin Cardozo. His most famous comment on the exclusionary rule was, “[t]he criminal is to go free because the constable blundered.”  People v. Defore, 242 N.Y. 13 (Court of Appeals of New York 1926). 

My sense is that this probably happened quite often before officers got used to abiding by the requirements of the 4^th Amendment. The premise of the rule, essentially, is that a right without a remedy for the violation of that right is, in effect, no right at all.  One could, of course, argue that we could provide some other right, such as monetary damages, but the response to that argument is that in this instance the magnitude of the harm resulting rom the violation of a right eclipses money damages, i.e., incarceration for years or the death penalty require more.  A related argument is that by enforcing the exclusionary rule in hard cases like this we send a message to all law enforcement officer that emphasizes the need to follow the rules.  Here, as in many areas of the law, there are no easy answers.

You can read more about the reversal of Herring’s conviction (and his prosecution and trial that led to it) in the news story you can find here.

The Rental Agreement, the Online Review and Defamation Per Se

This post examines an opinion the Utah Court of Appeals recently issued in a civil case that involves an online posting and a suit for defamation:  Westmont Residential LLC v. Buttars, 340 P.3d 183 (2015). 

The parties to the suit are the plaintiffs – Westmont Residential LLC and Terry Foote – and the defendants – Brad Buttars and Sarah Miller.  Westmont Residential LLC v. Buttars, supra.  The court refers to Westmont Residential LLC and Terry Foote, collectively, as “Westmont.”  Westmont Residential LLC v. Buttars, supra.  It refers to Buttars and Millers as “Defendants.” Westmont Residential LLC v. Buttars, supra. 

The Court of Appeals begins its opinion by explaining how the case arose:

Defendants sought an early termination of their one-year `Uniform Residential Rental Agreement’ (the Rental Agreement) to rent an apartment from Westmont. Westmont required Defendants to pay a $1,760 early-termination fee and prepared a Notice of Intent to Vacate (the Notice) that identified September 29, 2011, as the day Defendants would vacate the unit and conduct a move-out inspection with a Westmont employee. Defendants signed the Notice but did not receive a copy of the Notice until September 30, 2011.

On September 28, Westmont Residential's manager, Terry Foote, entered Defendants' unit to investigate an odor reported by another tenant in the same building. The complaining tenant also reported that he had not seen Defendants for two weeks. Foote knocked on Defendants' door, and after no one answered, Foote entered the unit without attempting to call Defendants. Inside, he observed that most of Defendants' belongings had been removed from the unit and that the unit was `filthy.’

On September 29, a Westmont employee went to Defendants' apartment to conduct the scheduled move-out inspection. Defendants were not there, and the employee proceeded to enter the apartment without confirming whether office personnel were able to contact Defendants. Defendants had mistaken September 30 as the scheduled move-out and inspection date.

On September 30, around 10:30 a.m., Defendants arrived at the apartment intending to clean the unit and finish removing their belongings. Instead, they found Westmont employees cleaning the unit and boxing up Defendants' property. Westmont refused to let Defendants enter the unit to retrieve their property and instead finished packing Defendants' items, stored the boxes in a carport, and demanded that Defendants pay a $100 `Packing and Inventory’ fee before Westmont would allow Defendants access to their belongings. Defendants paid the fee and were allowed to retrieve their items. Shortly thereafter, on October 19, 2011, Miller posted a review in an online forum describing Westmont as “’crooks'” that “‘will take full advantage of you! Run from them!’”

Westmont filed a complaint against Defendants seeking to recover $2,169 in damages for the costs of cleaning and repairing the unit, plus $216.90 as a `10% repair and cleaning miscellaneous supplies charge.’ Westmont also brought a claim for defamation per se against Defendants arising out of the online review.

Westmont Residential LLC v. Buttars, supra. 

As Wikipedia explains, in U.S. law a “Complaint” is

any formal legal document that sets out the facts and legal reasons . . . that the filing party or parties (the plaintiff(s)) believes are sufficient to support a claim against the party or parties against whom the claim is brought (the defendant(s)) that entitles the plaintiff(s) to a remedy (either money damages or injunctive relief). For example, the Federal Rules of Civil Procedure (FRCP) that govern civil litigation in United States courts provide that a civil action is commenced with the filing or service of a pleading called a complaint. Civil court rules in states that have incorporated the Federal Rules of Civil Procedure use the same term for the same pleading.

And as another site explains, the cause of action for defamation per se encompasses

a false statement, either spoken (`slander’) or written (`libel’) that injures someone's reputation. However, some types of false statements are considered so damaging that they are deemed defamatory on their face (`defamation per se’). This is in contrast to `defamation per quod’ where the false statement is not inherently defamatory and has to be evaluated in the context of additional facts. Generally, for defamation per se, the statements are presumed harmful whereas for defamation per quod the damage must be proven.

Getting back to the Court of Appeals’ opinion, it goes on to explain that

[a]fter a bench trial, the trial court denied all of Westmont's claims for damages, and in its ruling on Westmont's post-trial motions, the court noted that Defendants `genuinely believed that they had another day to complete moving out,’ particularly because they `returned to the unit the next day in an attempt to finish moving out, and had paid the entire months rent.’ Therefore, the court ruled that Defendants were not responsible for any of Westmont's alleged cleaning fees, because `Westmont prematurely conducted the move-out inspection and began cleaning the apartment without giving Defendants the opportunity to finalize their move-out.’

The court determined that Defendants were liable for only $50 of Westmont's alleged cost of repairs and reduced the related 10% surcharge to $5. However, the court concluded that Defendants' liability for $55 in damages was offset by Westmont's impermissible charge of $100 for inventorying and packing Defendants' belongings. As a result, Westmont was awarded no damages. The court also dismissed Westmont's defamation per se claim, concluding that Defendants' `mere use of the word “`crooks’” did not justify `application of the defamation per se doctrine’ and that Westmont could not otherwise prove that it was actually harmed by the online comment.

Westmont Residential LLC v. Buttars, supra. 

After the judge entered the findings and judgment outlined above, Westmont

filed a motion to disqualify the trial judge, a rule 59 motion to alter or amend the judgment, and a rule 60(b) motion for relief. All three motions were denied. Westmont now appeals.

Westmont Residential LLC v. Buttars, supra.  The motion to disqualify the judge would have been filed under the Utah Rules of Civil Procedure’s Rule 63(b)(1)(A), which says that a party to a lawsuit or the party's attorney

may file a motion to disqualify a judge. The motion shall be accompanied by a certificate that the motion is filed in good faith and shall be supported by an affidavit stating facts sufficient to show bias, prejudice or conflict of interest.

The Court of Appeals explains that Westmont raised “several issues on appeal:”

First, it challenges the trial court's finding that Defendants had not vacated the apartment as of September 29. `Because a trial court is in a better position to judg[e] credibility and resolv[e] evidentiary conflicts, an appellate court reviews the trial court's findings of fact for clear error.’ State v. Levin, 144 P.3d 1096 (Utah Supreme Court 2006) . . . (citation and quotation marks omitted).

Next, Westmont argues that the trial court erred in determining that Defendants' online review did not constitute defamation per se. `Because the existence of defamatory content is a matter of law, a reviewing court can, and must, conduct a context-driven assessment of the alleged defamatory statement and reach an independent conclusion about the statement's susceptibility to a defamatory interpretation.’ O'Connor v. Burningham, 165 P.3d 1214 (Utah Supreme Court 2007).

Westmont also challenges the trial court's denial of its rule 59 and rule 60(b) motions and the trial judge's failure to recuse himself before ruling on Westmont's post-trial motions. Because we determine that all three of these arguments are inadequately briefed, we do not reach their merits. See Utah Rules of Appellate Procedure 24(a)(9).

Westmont Residential LLC v. Buttars, supra.  In other words, as to Westmont’s third set of objections to the court’s ruling, the Court of Appeals appears to have found that the brief he filed on appeal did not articulate his arguments as to why the trial judge erred in enough detail to warrant the Court of Appeals’ considering the issues. 

According to the Court of Appeals, Westmont “approached the first issue”, i.e., that `because Defendants had not vacated or given up possession of [their unit] on September 29, 2011,’ `Westmont did not have the right to perform the move-out inspection at the time [it] did, [and] . . . did not have the right to charge a $100.00 fee for packing and inventorying Defendants' remaining belongings”, from “two angles.” 

Westmont Residential LLC v. Buttars, supra.  The court goes on to explain that,

[f]irst, it asserts that the Notice operated as an addendum to the Rental Agreement by which the expiration date of the Rental Agreement was amended to September 29, 2011. Thus, `when September 29, 2011, came and passed, without [Defendants] appearing for the Move–Out Inspection, they vacated’ their unit by operation of the terms of the amended Rental Agreement.

Second, Westmont argues that the nature of the items left behind by Defendants proves that Defendants had vacated the unit as of September 29, 2011. Westmont characterizes the items as `trash and junk.’ We address each argument in turn.

Westmont Residential LLC v. Buttars, supra. 

As to the first issue, the Court of Appeals explained that the Rental Agreement

Rental Agreement provides, `This form constitutes the entire agreement made between the parties and may be modified only in writing signed by both parties.’ Westmont's argument rests on its assumption that because the Notice was signed by both Defendants and a representative of Westmont, the Notice necessarily became an amendment to the Rental Agreement. The trial court acknowledged that Defendants and a Westmont representative signed the Notice, that the Notice scheduled the moveout date and move-out inspection for 2:00 p.m. on September 29, 2011, and that the Rental Agreement could be modified by a writing signed by both parties. Nonetheless, the court concluded that the Notice was not a modification of the Rental Agreement.

`A valid modification of a contract . . . requires a meeting of the minds of the parties, which must be spelled out, either expressly or impliedly, with sufficient definiteness.’ Richard Barton Enters., Inc. v. Tsern, 928 P.2d 368 Utah Supreme Court 1996). . . . The party claiming  there has been a modification to a contract—here, Westmont—carries the `burden of proof for showing the parties' mutual assent’ to the modification. See Harris v. IES Assocs., Inc., 69 P.3d 297. (Utah Court of Appeals 2003).

Westmont Residential LLC v. Buttars, supra. 

Next, it explained that, “[i]n reaching its conclusion,” the trial court relied on a

particular provision of the House Rules, a separate document incorporated by reference into the Rental Agreement. The specific provision cited by the court—paragraph 10 of part 1—requires tenants to give up possession of the apartment before Westmont can perform a move-out inspection. The provision states, `If the Rental Unit is not officially vacated at the specified time, rent will be charged until all keys have been surrendered, and a move-out walkthrough is completed and signed by the resident and by management or management's representative.’ The trial court reasoned, `Nothing in this provision indicates that it does not apply when a tenant does not vacate a unit prior to a scheduled move-out inspection pursuant to a Notice of Intent to Vacate’ and `nothing in the Notice of Intent to Vacate purports to “modify” this provision.’

Westmont argues that the trial court's reliance on part 1, paragraph 10 of the House Rules is misplaced. It asserts that this provision `undeniably’ `is not intended to apply to a situation where a tenant is not present for a scheduled Move–Out–Inspection, and has not made any effort to reschedule the Move–Out–Inspection,’ and that the court's interpretation creates an untenable situation in which `all of Westmont's apartments would be empty, and Westmont would still be charging the tenants who failed to attend the Move–Out [ ] Inspections rent, while Westmont is required to wait “until all keys have been surrendered, and a move-out walkthrough is completed and signed.”’

We do not agree that the provision is “undeniably” inapplicable here or that the trial court's interpretation would result in the scenario proposed by Westmont. And Westmont does not otherwise direct us to any evidence or address any related legal authority to support its position. Rather, it takes a broken-record approach and simply repeats its conclusory argument that the Notice amended the Rental Agreement because it comported with the requirements established in the Rental Agreement's integration clause. Westmont's repetition of its argument does not establish the argument's validity. Accordingly, Westmont has failed to show error in the trial court's ruling that the Notice did not modify the Rental Agreement.

Westmont Residential LLC v. Buttars, supra. 

The Court of Appeals then took up the second issue, noting that Westmont agued that

the items that remained in Defendants' apartment as of September 29 were of the quality and type that, based on Westmont's experience in the `industry,’ are often left behind by tenants that have abandoned their unit, rendering the items `junk’ and `trash.’ As a result, Westmont asserts that it was not required to wait until Defendants `remove[d] all of their trash from’ the unit before it could conduct a move-out inspection or begin repairing and cleaning the apartment. The trial court acknowledged Westmont's characterization of Defendants' remaining belongings as `junk’ and concluded that regardless of whether Westmont `valued Defendants' possessions, the law does.’ Cf. Martin v. City of Indianapolis, 192 F.3d 608 (U.S. Court of Appeals for the 7th Circuit 1999) (Manion, J.) (recognizing in the context of public art that, oftentimes, `one man's junk is another man's treasure’).

The court described the items in the apartment as carrying `significant importance and expense, especially for a young newly married couple.’ Additionally, [it] explained that Westmont's `complete disregard for the value of Defendants' belongings’ undermined Westmont's credibility in `accurately describ[ing] the state of the [apartment], or the amount of time it took to clean it.’ What's more, the fact that Westmont took the time to package Defendants' belongings into boxes and the fact that Defendants paid $100 to retrieve those boxes negates Westmont's assertion that the items left behind amounted to abandoned garbage. As a result, Westmont has not convinced us that the trial court's rejection of this argument was clearly erroneous.

Westmont Residential LLC v. Buttars, supra. 

And, finally, the court took up Westmont’s challenging “the trial court's conclusion that Defendants' statements in their online review of Westmont did not constitute defamation per se.”  Westmont Residential LLC v. Buttars, supra.  It explained that the trial judge

found, `On October 19, 2011, Miller posted a review on YAHOO! LOCAL stating her belief that “Westmont Properties, its management, and employees, were ‘crooks and will take full advantage of you! Run from them!”’

Westmont Residential LLC v. Buttars, supra. 

The Court of Appeals then explained that “traditionally”, in order to constitute

`defamation per se, the challenged statements must `be false and allege criminal conduct on the part of the plaintiff . . . or conduct which is incongruous with the exercise of a lawful business, trade, or office.’ Jacob v. Bezzant, 212 P.3d 535 (Utah Supreme Court 2009). .). . . .

To determine if `a statement is capable of sustaining a defamatory meaning,’ the reviewing court `must carefully examine the context in which the statement was made, giving the words their most common and accepted meaning.’ West v. Thomson Newspapers, 872 P.2d 999 (Utah Supreme Court 1994). `”A word is not a crystal, transparent and unchanged, it is the skin of a living thought and may vary greatly in color and content according to the circumstances and the time in which it is used.”’ West v. Thomson Newspapers, supra (quoting Townev. Eisner, 245 U.S. 418 (1918)); see also Prince v. Peterson, 538 P.2d 1325 (Utah Supreme Court 1975) (`simply making some general statement about another being a crook, or even using profanity against [another] in a general way, may not be actionable . . . depend[ing] on the circumstances’).

Westmont Residential LLC v. Buttars, supra. 

The court went on to point out that the trial court described the defendants’ post

as an `obscure online review’ and stated that Westmont provided no evidence as to how widely it was accessed, how long it was available on the web, or how significantly, if at all, it differed from the `several [other] postings on the internet critical of Westmont's business practices.’ In light of that context, the court concluded that Defendants' `mere use of the word “crooks”’ did not justify `application of the defamation per se doctrine.’ The court recognized that the term `crooks’ `could merely be a reference to crooked behavior, not a direct violation of the criminal code,’ or that it `could be a term for a person that has taken advantage of another,’ which `many would agree describes Westmont's conduct.’ See West v. Thomson Newspapers, supra (noting that the falsity of a statement is an element of defamation).

We agree with the trial court. While we acknowledge that the term `crooks’ can carry a criminal connotation, in the context of Defendants' online review, the term is clearly not being used in this manner. Indeed, given the context here of an online forum intended for consumers to review local businesses, we are convinced that `even the most careless reader [would] perceive[ ] that the word [“crooks”] was no more than rhetorical hyperbole.’ See Greenbelt Coop. Publishing Association v. Bresler, 398 U.S. 6 (1970) (addressing the term `blackmail’). And rhetorical hyperbole, including `juvenile name-calling), Krinsky v. Doe 6, 159 Cal.App.4th 1154, 72 Cal.Rptr.3d 231 (California Court of Appeals 2008), is not defamatory because it cannot `reasonably [be] interpreted as stating actual facts,’ Hustler Magazine, Inc. v. Falwell, 485 U.S. 46 (1988); see also Krinsky v. Doe 6, supra (posts in a heated internet discussion that referred to one officer of a corporation as a `”mega scum bag,”’ called other officers `cockroaches,’ `”boobs, losers and crooks,’” and described another as having `”fat thighs, a fake medical degree, . . . and . . . poor feminine hygiene”’ were vulgar but not defamatory because `nothing in [the] post suggested that the author was imparting knowledge of actual facts to the reader).

In other words, `[e]xaggerated language used to express opinion, such as “blackmailer,” “traitor” or “crook,” does not become actionable merely because it could be taken out of context as accusing someone of a crime.’ Hodgins v. Times Herald Co., 169 Mich. App. 245, 425 N.W.2d 522 (Michigan Court of Appeals 1988). . . .

Accordingly, we affirm the trial court's dismissal of Westmont's defamation per se claim.

Westmont Residential LLC v. Buttars, supra.