State v. Brossart, 2015 ND 1

Background

On June 22–23, 2011 three cow-calf pairs wandered onto property controlled by Rodney Brossart; his adult children secured the cattle in a fenced area he leases.
Owner Chris Anderson discovered the cattle missing, tracked them to Brossart, and contacted the sheriff; a brand inspector (Frederikson) and Deputy Braathen went to recover the cattle.
When officers encountered Brossart in a roadside field, he responded angrily and said, "if you step foot on my property, you are going to not be walking away," and told his son to "get that," with a rifle visible in the truck; the encounter escalated and Brossart was tasered and arrested.
Brossart was charged with terrorizing, preventing arrest, failing to comply with the estray statute, theft, and criminal mischief; a jury convicted him of terrorizing, preventing arrest, and failing to comply with the estray law, but acquitted him of theft and criminal mischief.
He moved to dismiss and to suppress evidence on grounds including First Amendment protection of his statement, that the estray statute did not apply, unlawful seizure, and excessive force; the district court denied those motions.
The Supreme Court of North Dakota affirmed convictions for preventing arrest and for failing to comply with the estray chapter, but reversed the terrorizing conviction and remanded for a new trial due to erroneous jury instructions on the definition of a "threat."

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether Brossart's statement was protected speech / not a "true threat"	State: statement was a threat (intentional or reckless) supporting terrorizing charge	Brossart: statement was conditional political/hyperbolic speech protected by the First Amendment (Watts)	Court: Not protected as matter of law; facts distinguish Watts, but jury must decide whether it was a "true threat"; conviction reversed for inadequate instruction and remanded for retrial
Whether jury instructions adequately defined "threat" and protected-speech doctrine	State: given instructions on elements and mens rea were sufficient	Brossart: requested instruction defining "threat" and explaining that only "true threats" are unprotected; court refused	Court: District court erred by failing to define "threat" and direct jurors to view facts from a reasonable-recipient perspective; reversal and remand for new trial on terrorizing count
Whether estray statute (ch. 36-13) applied and supports conviction for failing to notify	State: cattle were estrays; Brossart had duty to examine and notify sheriff/brand inspector and failed to do so	Brossart: cattle not "estrays" under ch. 36-22 definition or were merely trespassing so ch. 36-13 did not apply	Court: "Estray" not limited to ch. 36-22 market definition; facts supported application of estray chapter; conviction affirmed
Legality of seizure/arrest and use of force in preventing arrest charge	State: officers had probable cause (threat + refusal re: estray) and used reasonable force after resistance	Brossart: was unlawfully seized and tased without cause; excessive force vitiates preventing-arrest liability	Court: Defer to district court fact findings; Brossart not seized until after threat; probable cause existed; questions of excessive force were properly submitted to jury; preventing-arrest conviction affirmed

Key Cases Cited

Watts v. United States, 394 U.S. 705 (construing conditional statements and distinguishing political hyperbole from true threats)
Virginia v. Black, 538 U.S. 343 (true-threat doctrine: statements expressing serious intent to commit unlawful violence are unprotected)
R.A.V. v. City of St. Paul, 505 U.S. 377 (limits on speech categories and background principles of First Amendment analysis)
State v. Haugen, 392 N.W.2d 799 (N.D. 1986) (true-threat analysis and jury question on whether words constitute a threat)
State v. Curtis, 748 N.W.2d 709 (N.D. 2008) (objective/reasonable-recipient approach to whether a communication is a threat)