UNITED STATES of America, Plaintiff-Appellee, v. Ellisa MARTINEZ, Defendant-Appellant.
No. 11-13295.
United States Court of Appeals, Eleventh Circuit.
Nov. 27, 2013.
736 F.3d 981
Because the facts drawn in the light most favorable to Wilkerson show that Officer Seymour lacked even arguable probable cause to detain Wilkerson for a violation of any crime, the district court correctly held that he was not entitled to qualified immunity. Sergeant Parker, however, was not present at the time of the arrest and was not an active participant. Because he had no duty to investigate further the circumstances of the arrest and was entitled to rely upon the account of Officer Seymour, hе is entitled to qualified immunity from Wilkerson‘s
AFFIRMED IN PART; REVERSED IN PART.
Sally M. Richardson, Stephen Schlessinger, Anne Ruth Schultz, Wifredo A. Ferrer, Laura Thomas Rivero, Kathleen Mary Salyer, U.S. Attorney‘s Office, Miami, FL, Michael Garrett Walleisa, U.S. Attorney‘s Office, Fort Lauderdale, FL, for Plaintiff-Appellee.
PER CURIAM:
Ellisa Martinez appeals her conviction under
I. FACTS AND PROCEDURAL HISTORY
On November 10, 2010, talk-show host Joyce Kaufman at WFTL radio received an anonymous email form-response stating:
Dear Ms. Kaufman I was so thrilled to see you speak in person for congressman elect west. I was especially exited [sic] to hear you encourage us to exercise our second amendment gun rights. I felt your plan to organize people with guns in the hills of Kentucky and else where was a great idea. I know that you know one election is not enough to take our country back from the illegal aliens, jews, muslims, and illuminati who are running the show. I am so glad you support people who think like me. i‘m planning something big around a government building here in Broward County, maybe a post office, maybe even a school, I‘m going to walk in and teach all the government hacks working there what the 2nd amendment is all about. Can I count on your help? you and those people you know in Kentucky? we‘ll end this year of 2010 in a blaze of glory for sure. thanks for your support mrs kaufman. what does sarah say, don‘t retreat, reload! let‘s make headlines girl!
Several hours after this email was sent, an anonymous woman called WFTL. She told station officials that her husband had sent the prior email, that he was mentally ill, and that he was now planning to open fire at a nearby school. The anonymous woman implored the station to broadcast a рlea asking her husband not to carry out the shooting.
These communications prompted the Pembroke Pines Police Department to institute a “Code Red” lockdown on all Broward County schools. The Police Department also shut down several other public buildings, requiring officers to work overtime securing the facilities. Ultimately, however, no shooting occurred and the anonymous woman sent no further communications.
Soon after these events, investigators discovered that both anonymous communications were sent by the same person: Ellisa Martinez. Initially, Martinez denied any involvement in оr knowledge of the incident. However, once a grand jury indicted her for making a true threat in violation of
In pleading guilty, Martinez reserved the right to appeal the denial of her motion to dismiss the indictment on the following issues: (1) whether the indictment was insufficient because it did not allege Martinez subjectively intended to convey a threat to injure others; and (2) whether
* The Honorable Janе A. Restani, United States Court of International Trade Judge, sitting by designation.
After the district court accepted Martinez‘s guilty plea, the court ultimately ordered Martinez to pay the Police Department $5,350.89 in restitution for the costs incurred securing and safeguarding the schools and students in Broward County, Florida, as a result of her offense. Martinez appealed.
II. THE FIRST AMENDMENT AND TRUE THREATS
Pursuant to her conditional guilty plea, Martinez brings two constitutional challenges under the First Amendment. First, Martinez contends hеr indictment was constitutionally deficient under Virginia v. Black, 538 U.S. 343, 123 S.Ct. 1536, 155 L.Ed.2d 535 (2003), because it did not allege she subjectively intended to convey a threat to injure others. Second, Martinez argues that, if
A. True Threats and Intent
While the First Amendment generally prohibits the Government from restricting speech based on its message or viewpoint, Ashcroft v. ACLU, 535 U.S. 564, 573, 122 S.Ct. 1700, 1707, 152 L.Ed.2d 771 (2002), the First Amendment‘s free-speech protections are not absolute, see Chaplinsky v. New Hampshire, 315 U.S. 568, 571, 62 S.Ct. 766, 769, 86 L.Ed. 1031 (1942). In certain narrowly drawn categories, the Government may permissibly restrict speech on the basis of content. United States v. Stevens, 559 U.S. 460, 130 S.Ct. 1577, 1584, 176 L.Ed.2d 435 (2010). These categories of unprotected speech do not require case-by-case balancing because the harms they impose “so overwhelmingly outweigh[]” any First Amendment concerns that the “balance of competing interests is clearly struck.” New York v. Ferber, 458 U.S. 747, 763-64, 102 S.Ct. 3348, 3358, 73 L.Ed.2d 1113 (1982).
“True threats” are one such category of unprotected speech. United States v. Alvarez, — U.S. —, 132 S.Ct. 2537, 2544, 183 L.Ed.2d 574 (2012) (plurality opinion). Although statutes penalizing speech “must be interpreted with the commands of the First Amendment clearly in mind,” Watts v. United States, 394 U.S. 705, 707, 89 S.Ct. 1399, 1401, 22 L.Ed.2d 664 (1969), objective threats of violence contribute nothing to public discourse and enjoy no First Amendment protection, see R.A.V. v. City of St. Paul, 505 U.S. 377, 382-83, 112 S.Ct. 2538, 2542-43, 120 L.Ed.2d 305 (1992). The critical issue for the true threats doctrine is distinguishing true threats from mere political hyperbole; while the former are outside the First Amendment, the latter is entitled to full
Martinez argues that the Supreme Court‘s decision in Virginia v. Black draws the distinction between true threats and protected speech based on the speaker‘s subjective intent. Relying on Ninth Circuit precedent, Martinez contends Black redefined true threats to require proof the speaker subjectively intended to threaten listeners. See United States v. Bagdasarian, 652 F.3d 1113, 1116 (9th Cir.2011) (holding that a threat—even one “objective observers would reasonably perceive ... as a threat of injury or death“—cannot be prosecuted unless the speaker subjectively intended the speech to be a threat). Therefore, Martinez claims, her indictment was constitutiоnally insufficient because it did not allege she acted with the subjective intent to threaten.
1. Origins of the True Threats Doctrine
The true threats doctrine took shape in Watts v. United States. See 394 U.S. at 705-08, 89 S.Ct. at 1399-1402. In Watts, the Supreme Court reversed the conviction of a man charged with knowingly and willfully threatening the President under
They always holler at us to get an education. And now I have already received my draft classification as 1-A and I have got to report for my physical this Monday coming. I am not going. If they ever make me carry a rifle the first man I want to get in my sights is L.B.J. They are not going to make me kill my black brothers.
Id. at 705-06 (internal quotation marks omitted).
Although the Court acknowledged that true threats were not protected expression, the Court nonetheless held that Watts‘s statements were mere “political hyperbole.” Id. at 707-08. When taken in context, the Court could not see how Watts‘s statements could be interpreted as anything other than “a kind of very crude offensive method of stating a political opposition to the President.” Id. at 708 (internal quotation marks omitted).
Importantly, the Court reached this conclusion based on the objective characteristics of the speech and the context in which it was delivered—the Court did not speculate as to the speaker‘s subjective mental state. See id. For example, the Court looked to where the statement was made: in public during a group political debate. Id. Additionally, the Court looked to the nature of the statement: it was expressly conditional upon Watts‘s conscription into the military—an event he vowed would never occur. Id. at 707-08. Finally, the Court looked to the reaction of those in attendance: listeners as well as the speaker “laughed after the statement was made.” Id.
Following Watts, most federal courts of appeals defined true threats according to an objective standard. See Doe v. Pulaski Cnty. Special Sch. Dist., 306 F.3d 616, 622 (8th Cir.2002) (en banc) (noting that, while some courts applied a reasonable-speaker standard and othеrs a reasonable-listener standard, “[a]ll the courts to have reached the issue ... consistently adopted an objective test” for true threats). Between Watts in 1969 and Black in 2003, this Court in particular consistently applied an objective, reasonable-person test when distinguishing true threats from protected speech. See United States v. Callahan, 702 F.2d 964, 965 (11th Cir.1983); United States v. Bozeman, 495 F.2d 508, 510 (5th
2. Virginia v. Black and True Threats
Despite this history and precedent, Martinez contends Black altered the Watts framework for true threats and tacitly overruled our case law defining true threats according to an objective standard. However, four circuits to address the issue have declined to adopt Martinez‘s reading of that decision. See United States v. Elonis, 730 F.3d 321, 332 (3d Cir.2013) (“[W]e find that Black does not alter our precedent.“); United States v. Nicklas, 713 F.3d 435, 440 (8th Cir.2013) (joining the majority of circuits which have held that, in the wake of Black,
We agree with the Sixth Circuit that Black did not work a “sea change,” tacitly overruling decades of case law by importing a requirement of subjective intent into all threat-prohibiting statutes. Jeffries, 692 F.3d at 479; see also Elonis, 730 F.3d at 332 (”Black does not clearly overturn the objective test the majority of circuits applied to
In Black, the Supreme Court addressed a state statute making it a crime to burn a cross with the “intent of intimidating any person or group.” See id. at 347-48. Although the Court divided in its rationale, a majority of the Court reaffirmed the basic holding of Watts and other cases that true threats are not protected under the First Amendment. See id. at 358-60. The Court defined true threats as “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.” Id. at 359. According to a plurality of the Court, because the statute made the act of cross burning prima facie evidence of intent to intimidate, it effectively rendered cross burning a strict-liability offense. See id. at 365 (plurality opinion). And, without any mens rea requirement, the statute covered more than just true threats and “create[d] an unacceptable risk of the suppression of ideas.” Id.
Contrary to Martinez‘s argument, Black did not import a subjective-intent analysis into the true threats doctrine. Rather, Black was primarily a case about the overbreadth
Black‘s definition of true threats is fully consistent with a general-intent standard examining only the objective characteristics of the speech act. See White, 670 F.3d at 509. General-intent crimes require only that the defendant actually intend to perform the prohibited act; she need not subjectively intend the precise purpose or results of the crime. Id. at 508; see also Carter v. United States, 530 U.S. 255, 268 (2000). Similarly, Black defined true threats as those statements a speaker means to communicate—i.e., knowingly communicate—that contain a serious expression of violent intent. See Black, 538 U.S. at 359 (majority opinion). However, the speaker need not subjectively intend her statement to be a threat, in much the same way she need not subjectively intend to violate the law or “actually intend to carry out the threat.”3 See id.
The Supreme Court‘s definition of intimidation buttresses our interpretation of true threats. Black defined “intimidation” as a “type of true threat” directed with the intent—i.e., the specific, subjective intent—to place listeners in fear of bodily harm or death. See id. at 360. By defining intimidation to include a subjective-intent analysis, Black indicated that the general class of true threats does not require such an inquiry into the speaker‘s subjective mental state. After all, intimidation is but one type of true threat—a true threat delivered with a particular, subjectively held intent. See id. (suggesting speech qualifies as intimidation when it is “intended to create a pervasive fear in victims that they are a target of violence” (emphasis added)). But explicitly requiring subjective intent for one discrete type of true threat makes little sense if the Court intended all true threats to require such intent.
Finally, we find the Third Circuit‘s recent opinion in Elonis persuasive. In rejecting the same reading of Black that Martinez urges on us, the Third Circuit clearly and precisely explained why that decision did not alter the well-established understanding of the true threats doctrine. See id. at 327-32. Particularly noteworthy is the Third Circuit‘s insight that “[l]imiting the definition of true
Accordingly, we hold that Black does not require a subjective-intent analysis for all true threats. Id. at 332 (”Black does not say that the true threats exception requires a subjective intent to threaten“). Knowingly transmitting the threat makes the act сriminal—not the specific intent to carry it out or the specific intent to cause fear in another. United States v. Fuller, 387 F.3d 643, 646 (7th Cir.2004) (citing United States v. Kelner, 534 F.2d 1020, 1025 (2d Cir.1976)). Therefore, when the Government shows that “a reasonable person would perceive the threat as real,” a true threat may be punished and “any concern about the risk of unduly chilling protected speech has been answered.” Jeffries, 692 F.3d at 478.
B. Overbreadth and § 875(c)
Next, Martinez argues that if subjective intent is not required for prosecution under
After conducting this analysis, we conclude Martinez‘s overbreadth claim is meritless. In its entirety,
Whoever transmits in interstate or foreign commerce any communication containing any threat to kidnap any person or any threat to injure the person of another, shall be fined under this title or imprisoned not more than five years, or both.
The actus reus of the statute is transmitting a threat—that is, a true threat. See White, 670 F.3d at 508. A true threat is determined from the position of an objective, reasonable person, see Alaboud, 347 F.3d at 1296-97, unless a particular offense involves “intimidation,” see Black, 538 U.S. at 359-60. Section 875(c), however, is silent as to mens rea, requiring neither an intent to place the victim in fear of bodily harm or death, nor any other showing of specific intent. See United States v. Francis, 164 F.3d 120, 122 (2d Cir.1999) (“There is nothing in the language or legislative history of Section 875(c) suggesting that Congress intended it to be a specific-intent crime.“).
As a result,
Thus, unlike the statute in Black,
Martinez‘s argument that
In this case, we have construed
III. CONCLUSION
For the foregoing rеasons, Martinez‘s conviction and the district court‘s order of restitution are AFFIRMED.
CARNES, Chief Judge, concurring in the result:
There is a difference between speech that is a true threat, which may be constitutionally banned, and speech that is just hot invective which cannot be. The majority opinion draws the line between those two types of speech using the decision in Virginia v. Black, 538 U.S. 343, 123 S.Ct. 1536, 155 L.Ed.2d 535 (2003), as its straight edge. Using the same straight edge, I might draw a different line. But I need not decide whether I would because the nature of the defendant‘s challenge to the statute before us makes it unnecessary to do so.
I.
Martinez was convicted under
II.
To the extent that Martinez‘s challenge is one of statutory interpretation, arguing that
III.
Martinez‘s challenge goes beyond statutory interpretation, however, and in that way slips the grip of the Alaboud decision. She contends that her indictment is invalid because the failure to require an intent to
The majority rejects Martinez‘s facial attack on
A facial challenge that is based on some ground other than First Amendment overbreadth can succeed only “by establishing that no set of circumstances exists under which the Act would be valid, i.e., that the law is unconstitutionаl in all of its applications.” Wash. State Grange v. Wash. State Republican Party, 552 U.S. 442, 449, 128 S.Ct. 1184, 1190, 170 L.Ed.2d 151 (2008) (quotation marks and alteration omitted); see also Am. Fed‘n of State, Cnty. & Mun. Emps. Council 79 v. Scott, 717 F.3d 851, 863 (11th Cir.2013) (holding that to succeed on a facial attack “‘the challenger must establish that no set of circumstances exists under which the Act would be valid‘“) (quoting United States v. Salerno, 481 U.S. 739, 745, 107 S.Ct. 2095, 2100, 95 L.Ed.2d 697 (1987)).
A First Amendment overbreadth challenge, however, is different. See, e.g., Virginia v. Hicks, 539 U.S. 113, 118, 123 S.Ct. 2191, 2196, 156 L.Ed.2d 148 (2003) (“The First Amendment doctrine of overbreadth is an exception to our normal rule regarding the standards for facial challenges.“). An overbreadth challenge does not require a showing that there is no set of circumstances in which the statute could be applied constitutionally, but it does require a showing that a “substantial number of [a statute‘s] apрlications are unconstitutional, judged in relation to [its] plainly legitimate sweep.” Wash. State Grange, 552 U.S. at 449 n. 6 (quotation marks omitted). The difference is between having to show that all applications of the statute are unconstitutional and having to show that a substantial number of them are. It is still a difficult showing to make, and the burden of making it is on the challenger.
The Supreme Court has cautioned that we should “not apply the strong medicine of overbreadth analysis where the parties fail to describe the instances of arguable overbreadth of the contested law.” Id. (quotation marks omitted) (citing N.Y. State Club Ass‘n v. City of New York, 487 U.S. 1, 14, 108 S.Ct. 2225, 2234, 101 L.Ed.2d 1 (1988)). In its N.Y. State Club decision, the Supreme Court refused to strike down а law on overbreadth grounds because there was no definitive showing of the actual amount of its allegedly unconstitutional applications. The Court explained:
To succeed in its challenge, appellant must demonstrate from the text of Local Law 63 and from actual fact that a
substantial number of instances exist in which the Law cannot be applied constitutionally. Yet appellant has not identified those clubs for whom the antidiscrimination provisions will impair their ability to associate together or to advocate public or private viewpoints. No record was made in this respect, we are not informed of the characteristics of any particular clubs, and hence we cannot conclude that the Law threatens to undermine the associational or expressive purposes of any club, let alone a substantial number of them. We therefore cannot conclude that the Law is substantially overbroad and must assume that whatever overbreadth may exist should be cured through case-by-case analysis of the fact situations to which its sanctions, assertedly, may not be applied.
N.Y. State Club, 487 U.S. at 14. Similarly, in this case Martinez has made no showing “from the text оf [
While the Supreme Court has acknowledged that substantial overbreadth is “not readily reduced to an exact definition,” Members of the City Council of L.A. v. Taxpayers for Vincent, 466 U.S. 789, 800, 104 S.Ct. 2118, 2126, 80 L.Ed.2d 772 (1984), it has declined to find a statute overbroad when it was unlikely that the amount of protected expression falling within the scope of the statute would “amount to morе than a tiny fraction of the materials within the statute‘s reach.” New York v. Ferber, 458 U.S. 747, 773, 102 S.Ct. 3348, 3363, 73 L.Ed.2d 1113 (1982). That is the situation here. Martinez refers to a rare, almost unicornical category of speech communicated by a speaker who “acts with innocent intent, but negligently conveys a message that others [reasonably] find to be threatening.” Appellant‘s Br. at 20. More than a law school exam hypothetical is required. The analysis must partake of reality and a substantial amount of overbreadth must be shown.
The Supreme Court has instructed:
[T]he mere fact that one can conceive of some impermissible applications of a statute is nоt sufficient to render it susceptible to an overbreadth challenge. On the contrary, the requirement of substantial overbreadth stems from the underlying justification for the overbreadth exception itself—the interest in preventing an invalid statute from inhibiting the speech of third parties who are not before the Court.
City Council of L.A., 466 U.S. at 800. The Court emphasized that “there must be a realistic danger that the statute itself will significantly compromise recognized First Amendment protections of parties not before the Court for it to be facially challenged on overbreadth grounds.” Id. at 801. And in making that determination we are guided by the admоnition that the “application of the overbreadth doctrine is ‘strong medicine’ that should be used ‘sparingly and only as a last resort.‘” Fla. Ass‘n of Prof‘l Lobbyists, Inc. v. Div. of Legislative Info. Servs., 525 F.3d 1073, 1079 (11th Cir.2008) (quoting
This is not one of those rare, last resort cases where we must use the strong medicine of overbreadth doctrine. Section 875(c)‘s restriction on speech is itself significantly restricted by the objective requirement that a reasonable person would believe from the speech and its circumstances that the defendant intended to harm another. See Alaboud, 347 F.3d at 1297 (holding that the government must prove that a reasonable person would “construe [the communication] as a serious expression of an intention to inflict bodily harm“) (quotation marks omitted). Given that requirement—and assuming Martinez is right that the First Amendment requires proof of the speaker‘s subjective intent to threaten—there would be two categories of cases within the scope of
For this reason, I agree with my colleagues that Martinez‘s conviction is due to be affirmed.2