(Developing: Will be updated)
The U.S. Supreme Court on Monday declined to review two Kansas Supreme Court decisions striking down part of the state’s criminal threat statutes as unconstitutional.
The court refused to hear Attorney General Derek Schmidt’s appeal of two cases invalidating part of the statute and overturning two convictions — one from Douglas County and another from Montgomery County — for violating the law.
The state Supreme Court ruled that the First Amendment’s free speech protections require prosecutors to prove that the person making the threat intended to cause fear in the victim.
In these cases, the court found that it wasn’t enough to recklessly make a threat, but it had to be shown that there was an intent to cause fear.
“The United States Supreme Court has held that the government may regulate ‘true threats’ without infringing on rights protected by the First Amendment to the United States Constitution,” the state Supreme Court ruled.
“And that court has stated: ‘True 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.”
Justice Clarence Thomas issued a six-page dissent to the court’s decision not to hear the case. He argued that in his view, the Constitution likely permits states to criminalize threats even in the absence of any intent to intimidate.
“It appears to follow that threats of violence made in reckless disregard of causing
fear may be prohibited,” Thomas wrote.
He argued that there is a split among state courts over how to apply a 2003 U.S. Supreme Court case that found that Virginia could ban cross burning intended to intimidate.
The Kansas Supreme Court, Thomas wrote, concluded that the Virginia case prohibited the state from criminalizing reckless threats.
“In reaching that conclusion, the court created a split with the Supreme Courts of Connecticut and Georgia,” he wrote.
“We should resolve this conflict and provide clear guidance to the lower courts.
“Because the court should squarely decide whether the constitution permits states to criminalize threats of violence made in reckless disregard of causing fear, I respectfully dissent…”
The one conviction stemmed from a confrontation at a Lawrence convenience store where Timothy Boettger confronted an employee whose father was a detective at the Douglas County Sheriff’s Office.
Boettger was angry because someone had shot and killed his daughter’s dog and the Douglas County Sheriff’s office had not investigated the matter.
Boettger told the detective’s son that “he had some friends up in the Paseo area in Kansas City that don’t mess around, and that I was going to end up finding my dad in a
ditch.”
A jury convicted Boettger of one count of reckless criminal threat although he denied that he intended to threaten anyone.
The second conviction stemmed from Ryan Johnson being convicted of a criminal threat for saying he would burn down his mom’s house and kill her.
At trial, the mother and Johnson’s wife downplayed the incidents, testifying that the family commonly threatened to kill each other without meaning it.
The mother also testified that she did not remember what she told authorities, other than asking the deputies to remove her son from the home.
She agreed that she would have been truthful to the deputies, but explained that they may have misunderstood her because she was in a highly excited state and still under the effect of morphine from a recent hospital visit.
