State v. Draskovich
2017 SD 76
| S.D. | 2017Background
- Draskovich, after a dismissed pro se appeal and a DUI conviction, visited the Minnehaha County Courthouse to discuss a bond refund and a work permit.
- In the clerk of courts office he said, “Now I see why people shoot up courthouses,” then added, “Not that I would,” which alarmed clerk April Allenstein.
- In the court-administration office he told Brittan Anderson, in reaction to not receiving a work permit, something like, “180 pounds of lead between the eyes,” which Anderson understood as directed at Judge Salter.
- Both employees reported the statements to security; Judge Salter testified he felt threatened and took precautions.
- Draskovich conceded making the statements and later defended them as non-threatening political or hyperbolic speech.
- He was charged and convicted of threatening a judicial officer (SDCL 22-11-15) and disorderly conduct (SDCL 22-18-35(1)); the circuit court ruled the statements were unprotected “true threats.”
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Draskovich’s statements are protected First Amendment speech or unprotected "true threats" | Statements were true threats; recipients reasonably perceived them as threats and law protects against fear and disruption | Statements were hyperbolic/conditional or political speech and thus protected; lack of immediate apprehension shows they were not serious | Court held statements were true threats and unprotected; convictions affirmed |
| Whether context and recipient reaction support finding a true threat | Recipient shock, alarm, and reports to security render a reasonable perception of a serious intent | Lack of immediate law-enforcement action and ambiguous phrasing undermine claim of a genuine threat | Court found recipient reactions credible and context (escalating anger, direct communication to staff) supported true-threat finding |
| Whether conditional or ambiguous language defeats true-threat characterization | Statements were unconditional or sufficiently direct to convey imminent violent intent | Phrases like “Not that I would” or ambiguity about target make statements conditional/ambiguous | Court deemed one statement unconditional and the other’s coy denial insufficient to negate perceived threat |
| Whether defendant’s lack of prior threats negates a threat finding | Even without prior threats, recipients had reason to believe defendant capable of violence given behavior | Absence of history and immediate arrest suggest low risk | Court held lack of prior threats did not defeat finding because present behavior and recipients’ reasonable fear supported true-threat determination |
Key Cases Cited
- Watts v. United States, 394 U.S. 705 (statement made at protest found conditional and protected)
- Virginia v. Black, 538 U.S. 343 (definition and rationale for unprotected "true threats")
- R.A.V. v. City of St. Paul, 505 U.S. 377 (discussion of protections against threats and expressive conduct)
- Austad v. S.D. Bd. of Pardons & Paroles, 719 N.W.2d 760 (S.D. 2006) (state precedent on threats and First Amendment limits)
- Doe v. Pulaski Cty. Special Sch. Dist., 306 F.3d 616 (8th Cir. en banc) (factors for evaluating whether speech is a true threat)
- United States v. Dinwiddie, 76 F.3d 913 (8th Cir. panel case cited for contextual analysis of threats)
- People ex rel. C.C.H., 651 N.W.2d 702 (S.D. 2002) (application of threat-factors in school context)