Appeals Court Says Law Criminalizing Threats To Sue Or Complain About Police Officers Is Unconstitutional

from the real-concern-is-these-gov't-employees-thought-it-was-ok-to-do-this dept

A few months ago, we wrote about (YET ANOTHER) terrible law Louisiana has on the books. Like its other terrible laws, this one is abused by law enforcement. The law itself -- which forbids the "intimidation" of public officials -- has already been ruled unconstitutional by a federal judge.

This law is wielded by officers and prosecutors to ring people up for "intimidating" cops by doing things like threatening to sue or file complaints. The wording lends itself to this. It criminalizes anything that might "influence" a public official's "conduct." No doubt threats of lawsuits or complaints have some effect on officers and how they behave and react. The most noticeable effect isn't on the public officials. It's the addition of a charge specifically related to what a citizen says to a law enforcement officer if they're unhappy with the way they're being treated.

Travis Seals was the recipient of one of these bogus charges as the result of him informing an officer he was going to file "lawful complaints" during his arrest for unknown charges. (The opinion only says "conduct not specifically reflected in the record.") He verbally objected to the arrest, which apparently led to the application of pepper spray and Seals' announcement of the pending filing of complaints.

The lower court said the law was unconstitutional. Even though Seals was never officially charged by the DA, the DA still chose to fight for the bad law in court. And again, it's the state appealing the lower court's ruling. The state tried to get the case tossed for lack of standing, saying it had promised not to use that law against Seals in the future. The court disagrees, using a couple of footnotes (p. 5) to explain why this promise isn't really worth the PDF it's printed on before ruling on the law itself. It also points out the state has brought this charge in circumstances like these against 150 people, so it's not as though it's restraining itself for abusing a bad, broadly-written law.

And it is incredibly broad, as the Fifth Circuit Appeals Court points out in its opinion [PDF]. (h/t Volokh Conspiracy)

The statute criminalizes “public intimidation,” defined as “the use of violence force, or threats upon [a specified list of persons, including any public officer or public employee] with the intent to influence his conduct in relation to his position, employment, or duty.” (Emphasis added.) On its face, the statute is extremely broad. The definition of “threat” generally encompasses any “statement of an intention to inflict pain, injury, damage, or other hostile action on someone in retribution for something done or not done.” That definition easily covers threats to call your lawyer if the police unlawfully search your house or to complain to a DMV manager if your paperwork is processed wrongly.

The appeals court notes that, even if it accepts the conclusion of state court rulings, which create a requirement that such "threats" or "intimidation" produce a "corrupting effect" (bribery is one example), that still doesn't make the law Constitutional. (Also: state law rulings aren't considered precedent by federal appeals courts.)

Accordingly, we assume, but only for purposes of this appeal, that Section 14:122 requires a corrupt intent, defined as the intent to obtain something that the speaker is not entitled to as a matter of right.

Yet we can narrow Section 14:122 no further. According to the state, we should construe the statute to apply only to true threats, i.e. “a serious expression of an intent to commit an act of unlawful violence” toward specific persons. There are several reasons why we cannot do so. First, the definition of “threat” is broader than true threats: any “statement of an intention to inflict pain, injury, damage, or other hostile action on someone in retribution for something done or not done.” Second, the reporter’s comments to Section 14:122 provide that the statute “should include threats of harm or injury to the character of the person threatened as well as actual or threatened physical violence.” Thus, the section is not “readily susceptible” to such a limiting construction.

The third reason is the biggest -- and it's supplied by Louisiana's government itself.

As plaintiffs note, the Louisiana Court of Appeals has upheld the conviction of a defendant who violated Section 14:122 by threatening “to sue” an officer and “get [his] job” if the officer arrested him. See State v. Mouton, 129 So. 3d 49, 54, 59 (La. App. 3d Cir. 2013). Plainly, such a threat suggests no violence—indeed, the threat appears to be a plan to take perfectly lawful actions. Accordingly, we cannot construe Section 14:122 to apply only to true threats of violence.

The law is so broadly written it criminalizes protected speech.

[T]he statute reaches both true threats—such as “don’t arrest me or I’ll hit you”—and threats to take wholly lawful actions—such as “don’t arrest me or I’ll sue you.” In both those examples, the speaker may be legally subject to arrest and is trying to influence a police officer in the course of his duties.

The court points out it's not impossible to craft a law targeting speech against public officials. Content-based restrictions can be Constitutional, but they have to be extremely narrowly-crafted. This law isn't, and its attendant abuse shows just how broadly written it is. When even stating you're going to run for office against a government official if they pass legislation you don't like (an example used in the ruling) can be construed as criminal under the law, there's zero chance it can survive a Constitutional challenge.

Section 14:122 could encompass an innocuous threat to complain to a DMV manager for slow service or a serious threat to organize lawsuits and demonstrations unless the police lower their weapons. And each kind of threat is constitutionally protected…. Section 14:122 undermines that freedom and thus is unconstitutional.

The Appeals Court hammers this point home twice in the same ruling.

A fortiori, Section 14:122 is not a time, place, and manner restriction. And not only does it encompass unprotected content, it reaches far beyond those constitutional limitations to target threats to complain to a school principal if one gets a bad grade, threats to run against an incumbent unless he votes your way on a bill, or threats to call the media if the police point a gun at you. Those kinds of threats are part of the core First Amendment rights “by which we distinguish [our] free nation from a police state.” Thus, insofar as it criminalizes “threats,” Section 14:122 is unconstitutionally overbroad.

The law may have to be rewritten. But for right now it at least can't be used the way it was in this case or several others involving Louisiana law enforcement.


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  • icon
    Mason Wheeler (profile), 10 Aug 2018 @ 8:44am

    OK, hang on a sec. Isn't threatening to sue someone if they don't do what you want already a criminal act, known as blackmail? Or does that only count if you're threatening to accuse them of a crime, rather than a civil suit? (Which would still be the case if what we're talking about is police brutality...) Why is it any different when the person being blackmailed is a cop?

    reply to this | link to this | view in chronology ]

    • icon
      Stephen T. Stone (profile), 10 Aug 2018 @ 9:41am

      Re:

      Isn't threatening to sue someone if they don't do what you want already a criminal act, known as blackmail?

      I thought it was called a DMCA notification.

      reply to this | link to this | view in chronology ]

    • icon
      James Burkhardt (profile), 10 Aug 2018 @ 10:24am

      Re:

      Blackmail is a very specific form of coercion. That is, utilizing the threat of public exposure of information that will cause some form of harm to the person being threatened to force some act, traditionally a financial transaction.

      While the "I will sue if you do X" is a coercive statement, it is not generally blackmail. The threat is not about the exposure of the act X, this act would generally already be public.

      While it might be seen as blackmail, from a strict interpretation, if the commentary is "you just violated my rights, if you continue to violate my rights I will expose your rights violation in a lawsuit", generally it is not seen as blackmail to express intent to pursue damages if an ongoing crime is continues, as to do so would abridge the ability of the victim of a crime to seek an end to its ongoing nature.

      Also, in this case, it appears he threatened to sue over the already occurred pepper spray, without conditioning his lawsuit on a future arrest. Nor did he demand any other action to prevent the lawsuit, a key factor in blackmail.

      reply to this | link to this | view in chronology ]

    • icon
      Ninja (profile), 10 Aug 2018 @ 12:29pm

      Re:

      I don't think announcing you will take matters to the court to protect your rights is threatening.

      I think Thiel saying he'd use his resources to bankrupt journalists and outfits could fit that definition but announcing you will fight for your rights a threat?

      reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 11 Aug 2018 @ 4:17pm

      Re:

      Blackmail is about /unjustified/ threats to make a gain of some sort not merely coercing them. Telling someone to get off your property or you'll call the cops is justified legally for instance. As the owner it is within your rights to have them expelled for trespassing.

      However you don't have a right to demand that shoplifters give you their wallet or you'll call the cops on them - that isn't justified. Threatening to call the cops and turn over footage of their past thefts if they enter your store again however is justified - it is within your discretion to go through the hassle of reporting or not and them never showing up again is a good enough solution for you. There is no material gain vs just calling the cops on them right now.

      reply to this | link to this | view in chronology ]

  • icon
    Anonymous Anonymous Coward (profile), 10 Aug 2018 @ 9:54am

    Half-hearted controls

    What's the difference between threatening to sue, and actually suing?

    It would seem that if the former is illegal, then the second would be really really illegal, but it isn't. Louisiana lawmakers really didn't think this through. If they had they would have made any action against government, word, thought, or deed illegal. Of course they would have wound up in the same place, that is that their law would be unconstitutional.

    But hey, if their gonna go for it, they should have gone for broke.

    /s

    reply to this | link to this | view in chronology ]

  • icon
    schnick (profile), 10 Aug 2018 @ 10:08am

    redress

    > Congress shall make no law ... abridging ... the right of the people ... to petition the Government for a redress of grievances.

    *I'm* no lawyer, but if *you* are a lawyer, and your client is being charged with this law, and you **can't** make the argument that this law itself is in violation of the First Amendment, well, you might want to petition your law school for a refund.

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 10 Aug 2018 @ 11:03am

    Why tell them what your intentions might be? Seems a bit reactionary, better to hold your tongue and talk to a lawyer later.

    reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 10 Aug 2018 @ 11:25am

      Re:

      Emotion often overrules reason.

      Additionally, in the moment, one might be hoping to make the officer not take the action that's prompting one to promise the lawsuit. This may not be rational, but see my previous point.

      reply to this | link to this | view in chronology ]

      • icon
        James Burkhardt (profile), 10 Aug 2018 @ 11:46am

        Re: Re:

        Agreed. The statement is inherently intended to be coercive. That it rarely works does not make it less so.

        There is a axiom by Mark Twain: "If one must eat crow, it is best to eat it while it is young and tender, or surely one will eat it when old and tough." Techdirt has said simpler. "First rule of holes: stop digging." The statement can therefore be seen, when actual rights violations are occurring, to be coercive in a positive light. "You know you are doing the wrong thing. "Stop now, and it doesn't need to become a big 'thing'".

        That is useful so rarely and detrimental so often makes it less rational to do so, but emotion is not rational, as you say.

        reply to this | link to this | view in chronology ]

      • icon
        Bergman (profile), 11 Aug 2018 @ 5:08pm

        Re: Re:

        Ever heard a police officer warning someone not to do something, because it's illegal and doing so makes you subject to arrest?

        Under this law, a cop saying anything like that, even to the town dog catcher, would be cause for the cop's own arrest and prosecution.

        reply to this | link to this | view in chronology ]

  • icon
    That Anonymous Coward (profile), 10 Aug 2018 @ 12:59pm

    Thank goodness the court finally decided there is a limit to the protection of cops...
    Getting away with shooting unarmed people in the back is more than enough.

    reply to this | link to this | view in chronology ]

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