STATE OF WASHINGTON, Respondent, v. TREY M., Appellant.
No. 92593-3
IN THE SUPREME COURT OF THE STATE OF WASHINGTON
October 27, 2016
En Banc. Filed OCT 27 2016
MADSEN, C.J.
MADSEN, C.J.—Juvenile defendant Trey M. seeks reversal of his three convictions for felony harassment under
Trey was a high school student at Naches Valley High School at the time of the incident that led to his arrest. At that time, Trey was in counseling with Mark Heeringa, addressing issues stemming from Trey‘s early childhood history of abuse and neglect. Trey had been in counseling since he was five years old, and had received regularly scheduled counseling from Heeringa for the past two years. During a counseling session on October 7, 2014, Trey was upset because three boys had teased him at school. Trey told Heeringa that he thought about taking a gun to school and shooting the boys. He also said he wanted to kill them and for them to know the pain that he felt. He described a specific plan to shoot the three boys and then himself. First, he would get a gun from his grandfather‘s gun safe and shoot one boy at the boy‘s house before school. He would then go to the school and shoot the other two boys and end by shooting himself. He told his counselor that if he couldn‘t get access to firearms, he would use bombs against the boys.
Heeringa noticed a change in Trey‘s mood and demeanor as he made these statements. Specifically, Heeringa testified that Trey was angry, gesturing, short in his speech, and raising his voice at the time. Heeringa asked Trey, “‘[D]oesn‘t this seem wrong?‘” 1 Report of Proceedings (RP) (Dec. 8, 2014) at 20. Trey replied, “‘Who can say?‘” Id. Heeringa took the threats seriously and contacted law enforcement.
At trial, Heeringa testified that this was not the first time Trey had threatened to kill someone, explaining that Trey had previously talked about killing others, including
Deputy William Boyer of the Yakima County Sheriff‘s Office met with Trey and asked him to explain what he said and what he would do. Deputy Boyer described his conversation with Trey as follows:
He told me that he had talked to his counselor and told his counselor that he had thought about and was thinking about killing other students at the Naches [high] school. And so I asked him how he would go about doing that. He indicated to me that he would either find the key to the gun cabinet or he would use an ax and break the door open to the gun cabinet. It‘s not a gun cabinet, but it‘s a closet where the guns are kept locked up.
He would then take the 9 millimeter pistol of his grandpa‘s, and he would go to his friend‘s house who lives in the near area and kill him first. He would then ride the bus into . . . Naches [high school] like normal. He would then wait at school until the other students were at lunch or everyone was in the cafeteria because that‘s when the — there would be the gathering of the individuals he wanted to shoot, at which point he said that he would shoot them and then he would shoot himself.
Id. at 54. Deputy Boyer testified that Trey said all of this methodically and without emotion. Trey explained to the deputy that he would use a 9 mm pistol because he could conceal it. Trey also confessed to making 15 or 16 small bombs.
Another sheriff‘s officer, Detective Sergeant Mike Russell, contacted the principal of Naches Valley High School, Richard Rouleau. Principal Rouleau confirmed a report that Trey was being harassed or bullied at school. Trey had also recently been suspended from school and was upset over the suspension.
Another victim, W.B., testified that after learning he was on Trey‘s “hit list,” he was scared and really shaking. Id. at 97, 105-07. He told his dad he “was threatened” and that he was scared. Id. at 106. At trial, he testified that he was still a little scared. He also testified that he knew Trey had talked about harming himself before and had even made a noose at one point.
The third victim, G.C., testified that he got a text from his friend, W.B., telling him about the “hit list.” Id. at 118, 120. G.C. said that he was “scared” and “freaked out” at first. Id. at 120. G.C. was at home sick at the time. G.C. thought that if he had been at school, the plan might have been carried through. He testified that made him scared and frightened.
Trey was convicted of three counts of felony harassment and appealed these convictions.
Trey filed an opening brief in Division Three, seeking reversal of his convictions and dismissal of all charges and arguing that (1) the State presented insufficient evidence
In the meantime, the Supreme Court issued its decision in Elonis, interpreting the federal crime of transmitting in interstate commerce “‘any communication containing any threat . . . to injure the person of another.‘” 135 S. Ct. at 2008 (quoting
Trey filed a reply brief adding citation to Elonis, contending that case is “persuasive authority” for the proposition that Trey‘s convictions are invalid. Reply Br. of Appellant at 20. Amicus American Civil Liberties Union of Washington (ACLU) also filed a brief, asserting that Washington‘s objective reasonable speaker test is inconsistent with Elonis.
The Division Three chief judge issued an order of certification transferring the case to this court to determine the issue of “whether . . . Elonis v. United States, 135 S. Ct. 2001, 192 L. Ed. 2d 1 (2015), requires Washington to change its construction of the
ANALYSIS
(1) We decline to abandon this court‘s precedent applying an objective test for what constitutes a true threat under the First Amendment3
Appellant was convicted on three counts of felony harassment (threat to kill) under
Appellant and amicus ACLU ask this court to overrule State v. Williams, 144 Wn.2d 197, 207-08, 26 P.3d 890 (2001), which adopted our state‘s objective (reasonable person) test for what constitutes a true threat, and hold instead that Washington‘s true threat test requires subjective intent to threaten. Amicus contends that by doing so, this court would make our state law “consistent with” Black and Elonis. Br. of Amicus Curiae ACLU at 1. Appellant echoes these contentions, asserting that Black is “binding authority” that “compels a subjective-intent standard” concerning any First Amendment true threat inquiry. Appellants‘s Suppl. Br. on Certified Issue at 13. For the reasons discussed below, we find that neither case so requires and decline to abandon our settled precedent. This court “will not abandon precedent unless it is determined to be incorrect and harmful.” Rose v. Anderson Hay & Grain Co., 184 Wn.2d 268, 282, 358 P.3d 1139 (2015); see also In re Rights of Waters of Stranger Creek, 77 Wn.2d 649, 653, 466 P.2d 508 (1970) (“The doctrine [of stare decisis] requires a clear showing that an established rule is incorrect and harmful before it is abandoned.“).
Williams and Its Progeny
In Williams, this court also addressed a challenge to a conviction under Washington‘s harassment statute. We acknowledged that
“A ‘true threat’ is a statement made ‘in a context or under such circumstances wherein a reasonable person would foresee that the statement would be interpreted . . . as a serious expression of intention to inflict bodily harm upon or to take the life of [another individual].‘” State v. Knowles, 91 Wn. App. 367, 373, 957 P.2d 797 (1998) (alteration[s] in original) (quoting United States v. Khorrami, 895 F.2d 1186, 1192 (7th Cir. 1990)).
Id. at 207-08 (quoting Chaplinsky v. New Hampshire, 315 U.S. 568, 572, 62 S. Ct. 766, 86 L. Ed. 1041 (1942)). This court has consistently relied on the objective (reasonable person) test since its adoption in Williams. See, e.g., State v. J.M., 144 Wn.2d 472, 477-78, 28 P.3d 720 (2001) (quoting the Williams test); Kilburn, 151 Wn.2d at 43 (same); State v. Johnston, 156 Wn.2d 355, 361, 127 P.3d 707 (2006) (same); State v. Schaler, 169 Wn.2d 274, 283, 236 P.3d 858 (2010) (same); State v. Allen, 176 Wn.2d 611, 626, 294 P.3d 679 (2013) (plurality opinion) (same); State v. France, 180 Wn.2d 809, 818, 329 P.3d 864 (2014) (same).
Notably, in Kilburn this court rejected the same request that appellant and amicus make here—to abandon Williams in favor of a subjective intent test. The Kilburn decision reiterated the Williams test and further explained that “[a] true threat is a serious
[T]he harassment statute itself does require a mental element. The statute requires that the defendant “knowingly threatens . . . .”
RCW 9A.46.020(1)(a)(i) . This means that “the defendant must subjectively know that he or she is communicating a threat, and must know that the communication he or she imparts directly or indirectly is a threat to cause bodily injury to the person threatened or to another person.” J.M., 144 Wn.2d at 481. Thus, one who writes a threat in a personal diary or mutters a threat unaware that it might be heard does not knowingly threaten. Id. The statute does not require that the State prove that the speaker intended to actually carry out the threat.
Id. (alteration in original).
United States v. Elonis
Appellant argues that in compliance with the Supreme Court‘s recent decision in Elonis, this court should set aside his harassment conviction under
In Elonis, the defendant created and posted on Facebook his own purported rap lyrics addressing killing his ex-wife and harming others, while asserting that such comments were “‘therapeutic.‘” Elonis, 135 S. Ct. at 2004-07 (quoting United States v. Elonis, 730 F.3d 321, 329 (3d Cir. 2013), rev‘d, 135 S. Ct. 2001). The Court articulated the issue as “whether [
As an initial matter, Elonis is a case of statutory construction, and, as such, it is limited to the federal statute that it addressed,
Further, in Elonis, the federal criminal statute that the Supreme Court was faced with,
Importantly, Elonis did not mandate a scienter requirement for all offenses. Rather, Elonis creates a gap-filling rule that stands for the “‘presumption‘” of a scienter requirement when the federal offense is otherwise silent. Id. at 2010-11 (quoting Carter v. United States, 530 U.S. 255, 269 (2000)). Here, the Washington harassment statute is not silent as to mental states; it requires a specific mens rea, providing in relevant part:
A person is guilty of harassment if . . . [w]ithout lawful authority, the person knowingly threatens . . . [t]o cause bodily injury immediately or in the future to the person threatened or to any other person; . . . [and] [t]he person by words or conduct places the person threatened in reasonable fear that the threat will be carried out.
Finally, in Elonis the “jury was instructed that the Government need prove only that a reasonable person would regard Elonis‘s communications as threats.” Elonis, 135 S. Ct. at 2012. The Court found such instruction to be error because “[f]ederal criminal
Virginia v. Black
Appellant maintains that his convictions are invalid under Black. He argues that “[b]ecause there was no evidence that Trey made the statements to his therapist with the intent to intimidate the boys, the convictions violate the First Amendment under Black.” Reply Br. of Appellant at 18 (emphasis added); see also Br. of Appellant at 28 (same); Appellant‘s Suppl. Br. on Certified Issue at 4. For the reasons noted here, appellant‘s reliance on Black is misplaced. While the state statute at issue in Black prohibited “cross burning with ‘an intent to intimidate a person or group of persons,‘” Black, 538 U.S. at 347 (quoting
Notably, this court has already distinguished Black in Schaler, acknowledging that the Supreme Court in Black “upheld a cross burning law without discussing any negligence requirement,” but this was because “the law at issue in Black required an even greater mens rea as to the listener‘s fear[:] ‘Intimidation . . . is a type of true threat . . . where a speaker directs a threat to a person or group of persons with the intent of placing the victim in fear of bodily harm or death.‘” Schaler, 169 Wn.2d at 287 n.4 (second and third alterations in original) (citation omitted) (quoting Black, 538 U.S. at 360). Thus, the Schaler majority did not find Black to be germane to its interpretation or application of
Justice Thomas‘s dissent in Elonis also described the parameters of the Black decision, further demonstrating how Black is too factually different to offer any guidance in the present case.8 Justice Thomas explained:
The Court‘s fractured opinion in Black . . . says little about whether an intent-to-threaten requirement is constitutionally mandated . . . . Black concerned a Virginia cross-burning law that expressly required “‘an intent to intimidate a person or group of persons,‘” 538 U.S., at 347, 123 S.Ct. 1536 (quoting
Va.Code Ann. § 18.2-423 (1996) ), and the Court thus had no occasion to decide whether such an element was necessary in threat
provisions silent on the matter. Moreover, the focus of the Black decision was on the statutory presumption that “any cross burning [w]as prima facie evidence of intent to intimidate.” 538 U.S., at 347-348, 123 S.Ct. 1536. A majority of the Court concluded that this presumption failed to distinguish unprotected threats from protected speech because it might allow convictions “based solely on the fact of cross burning itself,” including cross burnings in a play or at a political rally. Id., at 365-366, 123 S.Ct. 1536 (plurality opinion); id., at 386, 123 S.Ct. 1536 (Souter, J., concurring in judgment in part and dissenting in part) (“The provision will thus tend to draw nonthreatening ideological expression within the ambit of the prohibition of intimidating expression[.]“).
Elonis, 135 S. Ct. at 2027 (Thomas, J., dissenting) (third alteration in original). Here, the Washington harassment statute contains no similar “presumption,” the rejection of which a majority of the Court in Black agreed on. Otherwise, under federal precedent, the fractured plurality decision in Black provides no clear directive that would compel this court to abandon its precedent.9
The lead opinion in Black, addressing the intent to intimidate provision of the Virginia statute at issue, opined that “[i]ntimidation in the constitutionally proscribable sense of the word is a type of true threat, where a speaker directs a threat to a person or group of persons with the intent of placing the victim in fear of bodily harm or death.” 538 U.S. at 360. In this context, the lead opinion observed that “‘[t]rue threats’
Finally, after Black, there continued to be disagreement among the federal circuit courts regarding the appropriate test for determining whether speech rises to the level of a true threat. This disagreement stems from the various readings of the Supreme Court‘s opinion in Black. As noted, the Supreme Court declined the opportunity in Elonis to address the constitutional question raised by Black. See Elonis, 135 S. Ct. at 2012.
Policy Contentions
Appellant contends that the facts of Trey‘s case urge adoption of a subjective intent standard. Appellant argues, “A child was convicted of felonies for statements made in therapy, even though talking through one‘s feelings in counseling should be encouraged . . . . [Trey] did exactly what a person should do when having frightening thoughts: he was open about his feelings in therapy.” Appellant‘s Suppl. Br. on Certified Issue at 16-17. But talking through his feelings with his therapist is not what triggered the involvement of law enforcement. That resulted from the totality of the circumstances. See State v. C.G., 150 Wn.2d 604, 611, 80 P.3d 594 (2003) (the nature of a threat depends on all the facts and circumstances). Trey‘s statement, combined with his change
Amicus adds that the impetuousness of youth, coupled with the availability of social media, support adoption of a subjective standard so as to avoid unnecessary convictions of juveniles. Br. of Amicus ACLU at 11-15. Amicus cites to State v. Kohonen, 192 Wn. App. 567, 370 P.3d 16 (2016) as support, but Kohonen demonstrates the appropriateness of Washington‘s reasonable person test in the very context that amicus raises. In Kohonen, Court of Appeals, Division One, applied the reasonable person standard to reverse a misdemeanor cyberstalking (
In sum (regarding the supplemental briefing on the certified question), Elonis is significant for present purposes in what it does not say. It provides no First Amendment true threat analysis. It resolved only how the federal threat statute,
(2) Sufficient evidence supports Trey‘s convictions for felony harassment under RCW 9A.46.020
Appellant contends that the State‘s evidence was insufficient to prove felony harassment under
This court has explained that the harassment statute requires that the perpetrator knowingly threaten to inflict bodily injury by communicating directly or indirectly the intent to inflict bodily injury; the person threatened must find out about the threat although the perpetrator need not know nor should know that the threat will be communicated to the victim; and words or conduct of the perpetrator must place the person threatened in reasonable fear that the threat will be carried out. J.M., 144 Wn.2d at 482. Appellant specifically contends that the evidence did not show that the victims feared that any threat to kill would be carried out, that any such fear was reasonable, or that such fear was caused by Trey‘s words or conduct. Br. of Appellant at 15-21.
Here, each boy testified that when he heard that he was on Trey‘s “hit list,” he was “scared.” 1 RP at 87, 91 (E.D.), 97, 105-07 (W.B.), 120-21 (G.C.). That is sufficient. As to reasonableness of the fear, appellant argues that because the news of Trey‘s hit list was not available until after he was in custody, any fear that the threat would be carried out was not reasonable. But the record shows that each boy heard that he was on the hit list before finding out that Trey was in custody. Id. at 94 (E.D), 104-06 (W.B.), 120-21 (G.C.). Thus, the reasonableness of such fear was a question for the trier of fact in light of the total context. Finally, appellant argues that “[n]one of the three alleged victims testified that they heard [Trey‘s] statements, either directly or indirectly.” Br. of Appellant at 19. But neither direct communication nor conveyance of Trey‘s exact words was required. “The person to whom the threat is communicated may or may not be the victim of the threat.” J.M., 144 Wn.2d at 488. “[T]he person threatened must find out about the threat although the perpetrator need not know nor should know that the threat
(3) Trey‘s statements qualify as true threats under Washington‘s reasonable person test
Relying on Kilburn, Trey asserts that his statements to his therapist were not true threats under Washington‘s reasonable speaker standard. He argues that in Kilburn, the alleged threat—that the speaker would “‘bring a gun to school tomorrow and shoot everyone‘“—was spoken directly to a victim, but still found insufficient. Br. of Appellant at 24 (quoting Kilburn, 151 Wn.2d at 39). Appellant argues that here, Trey‘s statements were spoken to his therapist and were “more vague” as to timing than the alleged threat in Kilburn. Id. at 25.
But the outcome in Kilburn turned on the speaker‘s demeanor. As the student spoke the alleged threat to a classmate, he was “half smiling” and “giggling” afterward. Kilburn, 151 Wn.2d at 52. Also, the victim‘s history with the speaker showed no basis or rationale for the threat. They had known each other for two years and had never had a fight or disagreement, and the speaker had “always treated [the victim] nicely.” Id. By contrast, Trey‘s demeanor here was not flippant. Trey‘s therapist testified that he grew concerned as Trey‘s demeanor changed when he talked about killing the boys. Trey had a detailed plan, specific targets, and a history with the targets of some teasing and conflicts. Trey had been bullied at school and also had been suspended, which had upset him.
Appellant argues that a person in Trey‘s position—a reasonable teenager making statements to his therapist—would not foresee that the statements would be interpreted as a serious threat. But here, Trey‘s change in demeanor when describing his plan to kill the boys, the plan‘s depth of detail, and Trey‘s failure to acknowledge that shooting the boys would be wrong all argue in favor of this being a true threat. Further, Trey repeated his plan to kill the boys to Deputy Boyer, who also testified regarding the plan‘s depth of detail, Trey‘s demeanor, and Trey‘s absence of misgivings about what he was planning. Deputy Boyer testified that he “took it as a very credible threat due to [Trey‘s] detailed plan and the very matter-of-fact nature of how he explained doing it and putting his plan into action.” 1 RP at 58. Trey told Deputy Boyer, “‘I know right and wrong, but I‘m having a hard time wanting to do the wrong things.‘” Id. at 66.
Considering the entire context, a reasonable speaker in Trey‘s place would foresee that Trey‘s statements concerning his plan to kill the boys would be interpreted by a listener as a serious expression of intention to inflict bodily harm. In other words, Trey uttered a true threat under Washington‘s objective (reasonable person) test. See Kilburn, 151 Wn.2d at 46.
Finally, while the affirmance of Trey‘s convictions is compelled for the reasons discussed herein, we acknowledge that this case demonstrates the need to explore how our criminal justice system responds to juveniles with mental health issues. Knowing what we know about adolescent brain development, we must find alternative means for managing their behavior and providing therapeutic treatment, instead of criminal
CONCLUSION
We reject the invitation of appellant and amicus to abandon this court‘s settled precedent, which applies an objective (reasonable person) test in determining a true threat for First Amendment purposes. Appellant does not convince us that either the Supreme Court‘s recent decision in Elonis or its previous decision in Black require such a change. Under Washington‘s objective (reasonable person) test, the trial court correctly determined that the statements at issue here were true threats and that sufficient evidence supports appellant‘s convictions. We affirm appellant‘s conviction for three counts of felony harassment under
Madsen, C.J.
WE CONCUR:
Johnson, J.
Wiggins, J.
Owens, J.
Gonzalez, J.
Fairhurst, J.
Stephens, J.
Yu, J.
I agree with the majority that these convictions were permissible under our current precedent; we have interpreted the felony harassment statute,
ANALYSIS
Trey M. was convicted of violating
Neither J.M., nor Kilburn, nor any of our prior decisions interpreting the felony harassment statute addressed the United States Supreme Court‘s decision in Black, 538 U.S. 343. Trey M. argues that the First Amendment principles recognized in that case require reversal of his convictions. He is correct.
The majority dismisses Black as a “fractured plurality decision . . . [that] provides no clear directive . . . compel[ling] this court to abandon its precedent.” Majority at 16. I agree that Black is a complicated case: it generated four separate opinions and a split among the federal courts of appeals. See discussion infra. But I disagree that Black can be reconciled with Trey M.‘s conviction, under a negligence standard, for confiding in his counselor and law enforcement.
Black addressed a Virginia statute that criminalized cross burning “‘on the property of another, a highway or other public place‘” done “‘with the intent of intimidating any person or group of persons.‘” 538 U.S. at 348 (lead opinion) (quoting
Eight justices agreed that this statute posed First Amendment problems5—they differed only as to the appropriate remedy for these problems. Of significance here, five justices agreed that although a state may criminalize “cross burning with intent to intimidate,”6 it may not make the act of cross burning sufficient, by itself, to establish the prohibited intent.7 These justices reasoned that if a jury was
To distinguish Black from this case, the majority relies on two sources of authority: a footnote to this court‘s decision in State v. Schaler, 169 Wn.2d 274, 287 n.4, 236 P.3d 858 (2010), and Justice Thomas’ lone dissenting opinion in Elonis v. United States, 575 U.S. 723, 135 S. Ct. 2001, 192 L. Ed. 2d 1 (2015). Majority at 14-16. Neither suffices.
The Schaler note supports rather than undermines Trey M.‘s reliance on Black. In Schaler, a man in the throes of a mental breakdown called a crisis services hotline and, crying hysterically, confessed that he had either killed his neighbors or dreamed that he killed them. 169 Wn.2d at 278-80. After being involuntarily committed to a mental health facility, the man, who had not in fact killed anyone, continued to voice specific threats to kill his neighbors but “also said, ‘I hope I didn‘t really kill her.‘” Id. at 280. The State charged him with violating the antiharassment statute at issue in this case (
As for Justice Thomas’ dissent in Elonis—an opinion that no other justice signed—it cannot substitute for our own analysis of the Black decision itself. The
Finally, it is true that a majority of the lower federal appellate decisions addressing the question—all decisions interpreting
II. This court‘s decisions in J.M. and Kilburn also violate the principle, applied in Elonis, that “wrongdoing must be conscious to be criminal”
While Black alone compels us to reverse Trey M.‘s conviction, reversal is also supported by the United States Supreme Court‘s recent decision in Elonis, 135 S. Ct. 2001. As noted above and by the majority, Elonis addressed
The majority distinguishes Elonis on the ground that
The “presumption in favor of a scienter requirement should apply to each of the statutory elements that criminalize otherwise innocent conduct.” [United States v.] X-Citement Video, 513 U.S. [64,] 72[, 115 S. Ct. 464, 130 L. Ed. 2d 372 (1994)] (emphasis added). The parties agree that a defendant under Section 875(c) must know that he is transmitting a communication. But communicating something is not what makes the conduct “wrongful.” Here “the crucial element separating legal innocence from wrongful conduct” is the threatening nature of the communication. Id., 115 S.Ct. 464 at 73. The mental state requirement must therefore apply to the fact that the communication contains a threat.
Id. at 2011. The Court has consistently applied this presumption when interpreting statutes that, like Washington‘s felony harassment law, penalize “knowing” conduct.14
III. To the extent that they allow felony convictions for merely negligent speech, J.M. and Kilburn are incorrect and harmful
Before we may overturn our own precedent, there must be a clear showing that that precedent is both incorrect and harmful. In re Rights to Waters of Stranger Creek, 77 Wn.2d 649, 653, 466 P.2d 508 (1970). For all of the reasons given above, I conclude that our decisions in J.M. and Kilburn are incorrect. To the extent that those decisions permit felony harassment convictions for merely negligent speech, they violate the First Amendment protections recognized in Black, 538 U.S. 343,
First, J.M. and Kilburn infringe a constitutional protection. We have previously held that such infringement constitutes “harm” sufficient to overcome the rule of stare decisis. State v. W.R., 181 Wn.2d 757, 769, 336 P.3d 1134 (2014) (prior precedent harmful because it violated due process protections); State v. Barber, 170 Wn.2d 854, 871, 248 P.3d 494 (2011) (prior precedent harmful because it offended separation of powers principles).
Second, we have found precedent clearly harmful where it creates significant policy problems. Barber, 170 Wn.2d at 871 (collecting cases). J.M. and Kilburn certainly fit this bill, as illustrated by their application to the facts in this case.
At Trey M.‘s sentencing hearing—a proceeding at which every speaker expressed concern and compassion for Trey M.—the judge imposed probation with several conditions, including that Trey M. continue to participate in mental health treatment. 3 Report of Proceedings (Dec. 19, 2014) at 262-63. When she imposed that sentence, the judge struggled to explain to Trey M. why he was being punished for the things he had previously said to his therapist and how he should proceed in future therapy sessions:
Well, this is a difficult, sad case. It‘s obviously been horrible for everybody, including Trey [M.]. And I think Trey[ M.]‘s learned that
you can‘t make a plan to kill people and tell anybody about it, including your therapist. But on the other hand, you shouldn‘t be thinking that way. So that‘s the problem.
. . . And I think that your mind is unhealthy at this time. I understand that.
. . . .
. . . On the one hand, people should feel safe to make comments to a therapist in a therapeutic setting; on the other hand, this just went over—over the line. So . . . [your therapist] felt that he had to report it. He was concerned enough that he reported it and, basically, things snowballed and a lot of people found out about it and it became very, very frightening for a lot of people.
. . . .
. . . Everybody has thoughts like you have. Some of them are spoken and some of them are unspoken, but we all do the best we can to make sure that other people aren‘t afraid of what we say, okay?
Id. at 257-61.
The judge‘s advice is consistent with our holdings in J.M. and Kilburn—it warns Trey M. that he faces criminal sanction as a felon for therapeutic disclosures that are “over the line,” regardless of his criminal intent. Id. at 259. Under J.M. and Kilburn then, Trey M. must censor himself when he returns to therapy. Because this outcome is as frightening and counterproductive as it is unconstitutional, I would overturn those cases.
Imposing felony criminal liability for Trey M.‘s disclosures—disclosures that were requested by adults in positions of authority—contradicts controlling United States Supreme Court precedents. It undermines constitutional rights, flouts the plain language of the felony harassment statute, and risks undermining attempts to achieve the trust necessary to address juvenile mental health issues. It also opens the floodgates to prosecutions for harsh language that the speaker did not intend to be frightening in other areas, like the political context. For all of these reasons, I respectfully dissent.
McCloud, J.
Notes
A person is guilty of harassment if . . . [w]ithout lawful authority, the person knowingly threatens . . . [t]o cause bodily injury immediately or in the future to the person threatened or to any other person; . . . [and] [t]he person by words or conduct places the person threatened in reasonable fear that the threat will be carried out.
That is [conviction under
Id. at 220-21 (emphasis added). Similarly, the Washington harassment statute (without any additions) requires both subjective and objective mental elements: the speaker must “knowingly threaten[],” and the fear of the person threatened must be objectively “reasonable.”
Appellant further notes that this court followed the Seventh Circuit when it initially adopted the objective (reasonable person) standard in Williams, and urges this court to again follow the Seventh Circuit decision in United States v. Parr, 545 F.3d 491 (7th Cir. 2008), to apply a subjective intent test under Black when assessing a true threat. Appellant‘s Suppl. Br. on Certified Issue at 11-12. But Parr is ambivalent. Parr acknowledged the “objective ‘reasonable person’ test” as the majority rule, that after Black some courts applied a subjective test for true threats, that courts disagreed as to whether Black changed the test for true threats, and noted that the impact of Black‘s plurality decision is “unclear.” Parr, 545 F.3d at 499-500. Parr determined that it “need not resolve the issue” since the jury was instructed on intent as defendant requested. Id. at 500. Parr does not compel application of a subjective intent test as appellant suggests. United States v. Heineman, 767 F.3d 970, 976-82 (10th Cir. 2014)