First Amendment Protects Speech that Is Not a True Threat in Washington Domestic Violence

Threats of domestic violence should be taken seriously.  However, not all statements that suggest potential violence are true threats that can form the basis of a criminal conviction.  A Washington appeals court recently considered whether a statement that was made to a third party and that did not include a specific statement of an intent to harm was a true threat.

The husband was convicted of two gross misdemeanor counts of harassment – domestic violence.  One of the counts was based upon a statement by the defendant to a third party.

According to the court’s opinion, there were issues of infidelity by both parties, and  the opinion references two extramarital relationships of the wife.  The first involved a neighbor in the same apartment complex as the couple who had also served in the military with the defendant.  The neighbor told the defendant about the affair and subsequently cut off most contact with the couple until the incident leading to the husband’s arrest.

The wife began dating another man and spent a weekend at his house with her children.  When they returned home, the defendant was there.  She told the defendant about her relationship with the man and that she had spent the weekend with him.  The following morning, one of the children lied to the defendant about where they had been. According to the opinion, the defendant threatened to kill his wife, their children, and himself.

The wife subsequently called the neighbor with whom she had been involved.  She told him she did not feel safe and asked him to distract her husband while she packed and left the apartment.

When she got home that day, her husband confronted her while holding her journal and his pistol.  She ran out and went to the neighbor’s apartment.  She told the neighbor what happened and said she needed his help to leave right away.  She suggested he get some more people to assist him.

The neighbor contacted two other men.  The husband showed up at the neighbor’s apartment with his pistol.  The others arrived, and the four talked for about an hour.  The neighbor asked to see the husband’s pistol, but the husband would not give it to him.

The wife texted the neighbor that she was leaving the apartment.  When the husband tried to leave, the neighbor got an empty bottle for himself and another for one of the others.  He stepped between the husband and the door, pushed the husband, and told him to stay.

According to the opinion, the defendant took his gun out.  The neighbor raised the bottle and told him to put the gun down and he did not want to shoot anyone. The defendant said the neighbor should not be sure he was unwilling to shoot anyone.  Ultimately, the defendant put the gun on the table but kept his hand on it.  The neighbor asked how he could know the wife and children would be safe if he let the defendant leave, and the defendant told him he could not know that.  The defendant did not explicitly state he would hurt his wife or children.  The neighbor was concerned based on what the wife had said.

The neighbor let the defendant leave after about 20 minutes and called the wife to encourage her to call the police.  She did so.

The defendant was arrested a few days later and charged with two counts of felony harassment – domestic violence.  The first count alleged that he threatened to kill his wife and kids and placed his wife in reasonable fear the threat would be carried out.  The second count alleged he threatened to kill his wife and placed the neighbor and one of the other men in reasonable fear the threat would be carried out, and that he was armed with a handgun.  The jury found him not guilty of felony harassment, but convicted him of two gross misdemeanor counts of harassment – domestic violence.  The jury found he was not armed with a firearm.  The defendant appealed the conviction on the second count.

The defendant argued that his statement to the neighbor was not a true threat and was therefore protected by the First Amendment.  The State argued a reasonable person would have foreseen the statement being interpreted as a true threat.

The appeals court noted that, for any law that criminalizes speech, including threats, the State must show the speech is not protected by the First Amendment.  The First Amendment does not protect a “true threat.”  A statement is a true threat if a reasonable person would foresee it would be interpreted as a serious expression of intent to inflict bodily harm upon or take the life of another person, taken in context and considering the facts and circumstances.  A statement may be considered a true threat even if the speaker does not intend to carry it out.

The conviction for the second count was based on the defendant’s statement that the neighbor could not know he would not hurt anyone if he let him leave.  The appeals court found this statement was not a true threat.  The court noted that the response to the neighbor’s question was “essentially a non-response.”  The defendant testified that the intent behind the statement was to convey to the neighbor that there was no trust between them.  The court also noted that the statement was made during a tense argument and found “little indication” a different response would have been more likely to convince the neighbor the wife would be safe.  The appeals court found that the statement was insufficient to be considered a serious expression of intent to harm the wife.

The neighbor also testified that it was what the wife had told him, and not the defendant’s statement, that made him fear for her safety.  The court found that this testimony supported the defendant’s argument.

The State argued the defendant should have foreseen the statement would have been taken as a threat because he was very angry and tense.  The appeals court noted that a statement is not necessarily a true threat just because it was made during a tense situation.  The defendant’s testimony about his intent and the neighbor’s testimony that his fear was based on the wife’s statements outweighed the context of the tense situation.

The appeals court also rejected the State’s argument that the defendant’s testimony that he could see how the other men would have been concerned about letting him leave was an admission that showed the statement was a true threat.  The defendant’s statement that he understood , in hindsight, how they would have been concerned, did not show that their fear was reasonably foreseeable at the time.

The appeals court reversed the conviction on the count that was based on the statement to the neighbor.

As this case shows, defendants in domestic violence cases may sometimes be charged for statements that are not true threats.  If you have been arrested or charged with a criminal offense related to domestic violence, you have the right to an aggressive legal defense.  Call the Washington criminal defense attorneys at Blair & Kim, PLLC at (206) 622-6562.

More Blog Posts:

Admission of Prior Incidents in Washington Domestic Violence Cases

Washington Court of Appeals Clarifies Use of Self-Defense in Domestic Violence Case



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