Disorderly Conduct Conviction For Making A Threat Must Get Past Free Speech Protection

People v. Khan, 2018 IL App (2d) 160724 (October). Episode 561 (Duration 18:46)

Dude posted a message on facebook that he carries a gun on the college campus and people gonna end up in a body bag if they don’t stop messing with him.

Gist

Defendant, Aden D. Khan, was convicted of committing disorderly conduct by making a threat of violence against persons at a school (720 ILCS 5/26-1(a)(3.5)) and sentenced to 30 months’ probation.

Facts

At the time, defendant was 17 years old.

He was suspended for five days for that post. Then he posted the thing about brining a gun to the North Central College campus every day.

Defendant admitted he did the posting and said it was a joke. He got arrested this time.

Disorderly Conduct

As pertinent here, a person commits disorderly conduct when he or she

“knowingly *** [t]ransmits or causes to be transmitted a threat of destruction of a school building or school property, or a threat of violence, death, or bodily harm directed against persons at a school, school function, or school event, whether or not school is in session.”

A Threat

“[a] threat is knowingly transmitted if the defendant transmitted a communication for the purpose of issuing a threat of violence directed at persons at a school and with knowledge that the transmitted communication will be viewed as a threat of violence directed at persons at a school.”

The Indictment

The indictment against defendant charged that, he

“knowingly transmitted a threat of violence directed against persons at a school, being North Central College, in that on www.facebook.com/NCCConfessions.1, defendant posted, ‘I bring a gun to school every day. Someday someone is going to p*** me off and end up in a bag.’ ”

Issue

Defendant argues in part that under Elonis and People v. Relerford, 2017 IL 121094, the statute violates constitutional guarantees of free speech (see U.S. Const., amend. I; Ill. Const. 1970, art. I, § 4) because the State need prove only that a defendant knew that he was transmitting a threat, without having to prove that he actually intended to make the recipient feel threatened.

He contends first that the school-threat law is unconstitutional on its face because it does not require a sufficient mental state.

Elonis v. United States

In Elonis v. United States, 575 U.S. ___, 135 S. Ct. 2001 (2015), the Supreme Court read a heightened scienter requirement into a federal statute that criminalizes transmitting a threatening statement that a person knows or should know would intimidate a reasonable recipient.

The Facebook post was, titled “The people who i want to kill most.” The list included

“1. my stepmother who has f*** up my life[,] 2. my father for the same reason[,] 3. my brother for tormenting me since birth[,] 4. f*** brandon for talking hella s*** and for being a f***[,] 5. ruben bautista for talking too much s*** and cuz i already promised to kill him[,] 6. whatever a*** told casper that i was planning to shoot up the school[,] 7. whatever a*** told casper that i carried a knife[,] 8. the pope, just for laughs[,] 9. ms. limacher: worst teacher ever. gave me a referral for spitting on the sidewalk[, and] 10. god, if he/she/it exists.”

In Elonis, the defendant was convicted of violating a federal statute that makes it a crime to transmit “any communication containing any threat…to injure the person of another.” Elonis, 575 U.S. at ___, 135 S. Ct. at 2004 (quoting 18 U.S.C. § 875(c) (2006)).

The statute in Elonis contained no mental state so the court read a scienter requirement into it. Given its construction of the statute, the Court saw no need to reach any first-amendment issues.

Jury Instructions

Among the instructions that the court gave the jury were the following.

First, “[a] person commits the offense of disorderly conduct when he knowingly transmits a threat of violence directed against persons at his school whether or not school is in session and he intends that the threat would place those persons in reasonable apprehension of violence.”

Second, “[a] threat is knowingly transmitted if the defendant transmitted a communication for the purpose of issuing a threat of violence directed at persons at a school and with knowledge that the transmitted communication will be viewed as a threat of violence directed at persons at a school.”

Mini-Holding

We recognize that the trial court instructed the jury that the State had to prove beyond a reasonable doubt that defendant did intend to make recipients of his message feel threatened. As we shall explain, the statute under which defendant was charged does not actually impose such a requirement on the State and need not do so in order to pass constitutional scrutiny.

There is a reasonable construction of the statute here that obviates any constitutional infirmity.

But See Also People v. Diomedes

In People v. Diomedes, 2014 IL App (2d) 121080, ¶ 3, the defendant was charged with disorderly conduct for e-mailing a threat of violence against the dean of his former school, Geneva High. The e-mail was sent to an anti-bullying activist who had spoken there some time earlier.

Diomedes implicitly held that the school-threat provision of the disorderly conduct statute is not facially unconstitutional. The provision can and may be applied to the knowing communication of a message if the defendant knows that a reasonable speaker would foresee the message as communicating, to a reasonable recipient, a serious intent to commit harm.

Thus, under Diomedes, the provision includes a mental-state requirement that is consistent with the first amendment.

A True Threat Is Required

The knowledge that the communication is a “true threat” is sufficient.

In Diomedes they defined a true threat this way, as to:

“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. The speaker need not actually intend to carry out the threat. Rather, a prohibition on true threats protects individuals from the fear of violence and from the disruption that fear engenders, in addition to protecting people from the possibility that the threatened violence will occur.”

But See People v. Wood

In People v. Wood, 2017 IL App (1st) 143135 the defendant was convicted of threatening the judge who had presided over his criminal case.

As pertinent here, the statute required the State to prove that

(1) he had knowingly and willfully communicated a threat to a public official and
(2) the threat would place the official in reasonable apprehension of immediate or future bodily harm.

720 ILCS 5/12-9(1)(a)(1)(i).

The appellate court held that he had not been proved guilty beyond a reasonable doubt. The court observed that a conviction required “intentionality on the defendant’s part,” i.e., the making of a true threat.

The statute at issue in Wood differs from the one here in that it explicitly requires that the offending communication be of such a character as to place the recipient in reasonable apprehension of harm.

Nonetheless, in its construction of “threat,” Wood is consistent with our opinion in Diomedes. Both opinions follow the command of our supreme court to construe a statute to uphold its constitutionality if reasonably possible.

What Disorderly Conduct and Threatening A Public Official Have In Common

Thus, as used in each statute, the combination of the terms “knowingly” and “threat” requires the State to prove that

(1) the defendant knowingly made the statement and
(2) the statement was a true threat

We return to the interpretation of the school-threat provision as a whole.

The existence of a true threat is one element. As we held in Diomedes, there is also the requirement that the defendant knowingly transmit a true threat and not merely that he should know that he is doing so.

Thus, if the defendant does not know that he is transmitting a true threat, which is unprotected by the first amendment, he is not guilty. Insofar as this case is governed by Diomedes and Wood, the school-threat provision of the disorderly conduct statute is constitutional.

The provision does not punish protected conduct, because it applies only to communications that are true threats, which are unprotected. It also requires the State to prove that the defendant knew that he was transmitting a true threat.

Elonis Is Not A Problem

Insofar as Elonis applies here, it does not help defendant.

Without directly considering first-amendment issues, the Court implicitly held that, by requiring

(1) the mental state of either intent or knowledge and
(2) the communication of a threat to injure another person, both first amendment problems and the danger of criminalizing innocent conduct were obviated.

Nothing in Elonis is inconsistent with Diomedes and Wood; indeed, they essentially said the same thing.

The primary difference is that in Elonis the Court read a mental state of intent or knowledge into a statute that prohibited communicating threats, whereas in Diomedes and Wood the courts recognized that the statutes already contained the mental state of knowledge.

Jury Instructions Favored Defendant

Defendant’s case was tried on the theory that the State had to prove intent, a higher standard.

The statute required the State to prove that defendant knowingly communicated a true threat—that he knew that his words were a serious expression of an intent to cause harm. The instructions told the jury that the State also had to prove that he intended that his words cause such apprehension. In other words, the jury instructions rewrote the statute in defendant’s favor.

State Wins Either Way

Fortunately, however, we need not decide whether the issue on appeal is the sufficiency of the proof of the offense as defined by the statute or the sufficiency of the offense as redefined by the jury instructions.

The evidence was sufficient either way.

The jury did not exceed its prerogative in finding that defendant knew that his promise to kill someone would cause a reasonable recipient to fear violence to the community.

Further, the jury reasonably inferred that defendant intended his message to cause at least some people to fear violence, as that was a natural and foreseeable reaction to a person telling them that he went to campus every day armed with a firearm and was bound to use it on slight provocation.

Holding

A jury may infer that a defendant intended the natural and probable consequences of his act. For the foregoing reasons, the judgment of the circuit court of Du Page County is affirmed.