Joseph Kelly David pled guilty to first-degree homicide by vehicle based on an indictment alleging that he drove an automobile under the influence of alcohol, thereby causing the death of a passenger in the vehicle when he lost control and the car overturned. He was sentenced to six years in prison. The trial court denied David’s motion to withdraw his guilty plea, and he appealed to the Court of Appeals of Georgia. David alleged that his attorney had improperly directed him to plead guilty, when, in fact, he could not be held responsible for vehicular homicide under the existing statutory scheme.

         David was seventeen at the time of the accident and pled guilty to Official Code of Georgia (OCGA) Section 40–6–393(a), which provides that “any person who . . . causes the death of another person through the violation of . . . Code Section . . . 40–6–391 commits the offense of homicide by vehicle in the first degree.” David’s blood alcohol level was measured at 0.08 grams after the accident. Section 40–6–391 (k)(1) provides that an individual under the age of twenty-one “shall not drive or be in actual physical control of any moving vehicle while the person’s alcohol concentration is 0.02 grams or more. . . .”

         David argued that he was denied equal protection of the law, because a driver twenty-one years of age or older was not subject to first-degree vehicular homicide under OCGA Section 40–6–393(a) until his or her alcohol concentration was 0.10 grams or higher. Did Georgia violate equal protection by providing a different standard for first-degree vehicular homicide for Joseph Kelly David than for an individual twenty-one years of age or older? See David v. Georgia, 583 S.E.2d 135 (Ga. App. 2003).

         David v. Georgia, 583 S.E.2d 135 (Ga.App. 2003). Age is not a “suspect class” and the legislature only is required to establish a rational relationship between the age classification for DUI and a valid state purpose. The Georgia legislature could reasonably conclude that individuals under the age twenty-one are inexperienced in driving and therefore pose a greater threat of causing automobile accidents and death on the highways at lower levels of alcohol intake than individuals over twenty-one years of age. Of course, this is not the case in every instance. 

         On September 24, 1999, the American Knights applied for a parade and sound device permit from the New York Police Department for an event to be held in October on the steps of the New York County Courthouse. The Knights are an organization modeled on the Ku Klux Klan that espouses white supremacist and anti-immigrant views. The New York police informed the Knights that its plan to wear masks violated New York Penal Law Section 240.35(5). This provides that an individual is guilty of loitering when [b]eing masked or in any other manner disguised by unusual or unnatural attire or facial alteration loiters, remains or congregates in a public place with other persons so masked or disguised to congregate in a public place; except that such conduct is not unlawful when it occurs in connection with a masquerade party or like entertainment.

         The Knights wear robes and a hooded mask as a symbol of the group's link with the original Ku Klux Klan. The mask also protects the identity of members who attend rallies, engage in leafleting, and participate in parades. A number of members allege that in the past they have been subject to harassment, threat, and physical assault by counterdemonstrators who have traced their identities. Several members testified that they would not participate in rallies unless they were permitted to wear masks. New York argues that the antimask provision is intended to facilitate identification of wrongdoers by the police. A New York Federal District Court was requested to issue an order preventing the New York Police Department from enforcing this statue. Does the New York law unconstitutionally limit the expression the Knight's point of view, or are there valid non-speech-related objectives accomplished by the statute? You can read the decision of the Federal District Court for the Southern District of New York, Church of the American Knights of the Ku Klux Klan v. Kerick, 232 F.Supp.2d 205 (SDNY 2002).

         A case involving the judiciary's rejection of an application for an injunction preventing Nazi Party members from marching in Skokie, Illinois, is Collin v. Smith, 578 F.2d 1197 (7th Cir. 1978). The Supreme Court refused to review the decision, Smith v. Collin, 439 U.S. 916 (1978). An important case involving an Indianapolis ordinance regulating material that is viewed as subordinating and exploiting women is American Booksellers 1 Association v. Hudnut, 771 F.2d 323 (7th Cir. 1985).

          Church of the American Knights of the Ku Klux Klan v. Kerick, 232 F.Supp.2d 205 (S.D.N.Y., 2002). The District Court ruled that the wearing of mask was part of the traditional uniform of the Ku Klux Klan and expressed a link between the American Knights and the original Ku Klux Klan. New York also was determined to be discriminating against the Klan based on the expression of political views. Entertainers were permitted to wear masks while individuals engaged in a political rally were prohibited from this conduct.

         The mask was essential to the Klan's expression since the membership possessed a demonstrated fear of a reprisal. The District Court explained that "less restrictive means" were available that would both guarantee order and secure the free expression of the Knights. New York, for instance, could require groups to inform the police at the time that they request a parade permit of their intent to wear masks. The police then could assign additional officers to maintain order. This decision was later overturned by the Second Circuit Court of Appeals which ruled that New York's interest in maintaining public safety outweighed the defendant's interest in the expression. A political rally clearly posed a greater threat of public disorder than an entertainment event. See 2004 U.S.App. LEXIS 769 (2nd Cir.N.Y. 2004). 

         Rickey T. was charged with making a felonious terrorist threat against a teacher with the intent of preventing him from performing his duties. Rickey T., sixteen-year-old student, walked out of Richard Heathcote’s class to use the restroom. When Rickey returned, he discovered that the classroom door was locked. Heathcote opened the door which hit Rickey T. Ricky angrily responded that “I’m going to get you.” Rickey was suspended for five days. Heathcote said he felt physically threatened although he said that Rickey T. did not make a specific threat to exact retribution. The police came to the school the following day. Rickey T. reported to the police that he felt disrespected by the door hitting him in the head and admitted that he told Heathcote that “I’m going to kick your ass.” He stated that he had not taken any physical steps toward Heathcote or made any threatening gestures. Did Rickey T. issue a terrorist threat toward Richard Heathcote? In California, the following elements must be established to convict Rickey T.: (1) the defendant willfully threatened to commit a crime that would result in death or great bodily injury; (2) the threat was made with the specific intent that it be taken as a threat; (3) the threat, on its face and under the circumstances in which it was made, was so unequivocal, unconditional, immediate, and specific as to convey to the person threatened a gravity of purpose and an immediate prospect of execution of the threat; and (4) the threat caused the person threatened reasonably to be in sustained fear for his own safety.

          In re Ricky T. 87 Cal. App.4th (2001). On May 6, 1999, appellant, a 16-year-old student, left Redwood High School teacher Roger Heathcote's class to use the restroom. When appellant returned, he found the classroom door locked and pounded on it. Heathcote opened the door, which opened outwardly, hitting appellant with it. Appellant became angry, cursed Heathcote and threatened him, saying, "I'm going to get you." Heathcote felt threatened and sent appellant to the school office. Heathcote said he felt physically threatened by appellant; however, he said appellant did not make a specific threat or further the act of aggression. Appellant was suspended for five days for the threat.      Officer Steaveson interviewed appellant at the school dean's office the following day. Appellant told Officer Steaveson that he was involved in a verbal altercation with Heathcote because he felt "disrespected by the door hitting him in the head." He admitted speaking angrily, but denied threatening Heathcote. Appellant also admitted "getting in [Heathcote's] face," but did not mean to sound threatening. He said that his actions were not appropriate and he apologized for the incident. On May 14, 1999, one week later, Officer Steaveson contacted appellant by telephone and advised him of his Miranda rights. Appellant waived his rights and said that on the day of the incident, he told Heathcote "I'm going to kick your ass." He added, however, that he never made any physical movements or gestures toward Heathcote to further the threat.
      Appellant's sole contention on appeal is that there is insufficient evidence to support the finding that he uttered a terrorist threat. This court is mindful that in considering a claim of insufficiency of the evidence, appellant has a heavy burden in demonstrating that the evidence does not support the juvenile court findings. An appellate court must review the whole record in the light most favorable to the judgment in order to determine whether it discloses substantial evidence that a reasonable trier of fact could find the essential elements of the crime beyond a reasonable doubt. In order to sustain a finding that appellant made a terrorist threat in violation of section 422, the People were required to show: (1) appellant willfully threatened to commit a crime that would result in death or great bodily injury; (2) he made the threat with the specific intent that it be taken as a threat; (3) the threat, on its face and under the circumstances in which it was made, was so unequivocal, unconditional, immediate and specific as to convey to the person threatened a gravity of purpose and an immediate prospect of execution of the threat; and (4) the threat caused the person threatened reasonably to be in sustained fear for his own safety. Appellant concedes that the evidence supports the first two elements of the offense but argues that there is insufficient evidence to establish that the threat was unequivocal and immediate or that it caused Heathcote to be in sustained fear for his safety.
      Section 422 requires that the threat be "so unequivocal, unconditional, immediate, and specific [that it] convey . . . a gravity of purpose and an immediate prospect of execution of the threat . . . . " It is clear that the nature of the threat cannot be determined only at face value. Section 422 demands that the purported threat be examined "on its face and under the circumstances in which it was made." The surrounding circumstances must be examined to determine if the threat is real and genuine, a true threat. The police reports state that appellant became angry at Heathcote for accidentally hitting him with the door when he opened it, cursing and stating he was going to get Heathcote. Appellant told the officer he did not mean to sound threatening, but did admit getting in Heathcote's face and saying he would "kick [his] ass." Respondent relies too much on judging a threat solely on the words spoken. It is clear by case law that threats are judged in their context. By this standard, appellant's "threats" lack credibility as indications of serious, deliberate statements of purpose. The lack of surrounding circumstances information is striking. There was no immediacy to the threat. Sending appellant to the school office did not establish that the threat was "so" immediate. "The use of the word 'so' in [section 422] indicates that unequivocality, unconditionality, immediacy and specificity are not absolutely mandated, but must be sufficiently present in the threat and surrounding circumstances to convey gravity of purpose and immediate prospect of execution to the victim." Here, the police were not called until the following day. Appellant was then interviewed in the school principal's office. That execution of the threat was not so immediate is further evidenced by the fact that the police did not again interview appellant until one week later. Having no circumstances to corroborate a true threat, respondent claims the record contains the legal minimum required to sustain the finding. But the remark "I'm going to get you" is ambiguous on its face and no more than a vague threat of retaliation without prospect of execution. Appellant's "kick your ass" and cursing statements were made in response to his accident with the door.            
     In contrast to other cases upholding section 422 findings, there was no evidence in this case to suggest that appellant and Heathcote had any prior history of disagreements, or that either had previously quarreled, or addressed contentious, hostile, or offensive remarks to the other. Nor was there evidence that a physical confrontation was actually imminent. Appellant's intemperate, rude, and insolent remarks hardly suggest any gravity of purpose; there was no evidence offered that appellant's angry words were accompanied by any show of physical violence—nothing indicating any pushing or shoving or other close-up physical confrontation. Heathcote told Officer Steaveson that appellant had "not . . . further[ed] the act of aggression." There is no evidence that appellant exhibited a physical show of force, displayed his fists, damaged any property, or attempted to batter Heathcote or anyone else. In surrounding circumstances within the meaning of section 422 can show whether a terrorist threat was made, absence of circumstances can also show that a terrorist threat was not made within the meaning of section 422. Here, there was no evidence of any circumstances occurring after appellant's "threats" which would further a finding of a terrorist threat.
      The cases relied upon by respondent, therefore, are readily distinguishable. In Martinez, although defendant's words to his girlfriend's supervisor " 'I'm going to get you,' " " 'I'll get back to you' " and " 'I'll get you' " standing alone may not have conveyed a threat to commit a crime that would result in death or great bodily injury, the surrounding circumstances after the statement—defendant set fire to the building where the supervisor worked, and the fire was discovered after the supervisor reported to work—met the requirement that defendant make a grave threat to another's personal safety. In Mendoza, the circumstances demonstrated that defendant intended his words to be taken as a threat; his fellow gang members immediately followed up on his threats to injure someone who " 'ratted' " on another gang member by parking in front of the victim's house and honking to get her attention.
     Section 422 also requires that the threat be such as to cause a reasonable person to be in sustained fear for his personal safety. The statute is specific as to what actions and reactions fall within its definition of a terrorist threat. The phrase to "cause[] that person reasonably to be in sustained fear for his or her own safety" has a subjective and an objective component. A victim must actually be in sustained fear, and the sustained fear must also be reasonable under the circumstances. Unlike the crime of robbery where the word "fear" does not necessarily connote intimidation or fear as it means apprehension, the term "sustained fear" is defined as a period of time "that extends beyond what is momentary, fleeting, or transitory." In concluding that the statutory element of sustained fear was met, the Allen court relied on evidence indicating that the victim had knowledge of the defendant's prior threatening conduct and had reported this conduct to the police on several occasions. No such evidence exists in this case. Whatever emotion—fear, intimidation, or apprehension—Heathcote felt during the moment of the verbal encounter, there was nothing to indicate that the fear was more than fleeting or transitory. Indeed, Heathcote admitted the threat was not specific. This court rejects respondent's suggestion that even momentary fear can support a finding of sustained fear within the meaning of section 422. Clearly, if any experience of fear constitutes a "sustained" experience, then the term is superfluous. Heathcote told Officer Steaveson that he "felt threatened," and that he ordered appellant to report to the school office. The record, however, indicates that the police were not notified until the day after the incident. Apparently, fear did not exist beyond the moments of the encounter. Rather than taking advantage of Heathcote's fear, appellant followed his directive and placed himself in the school office, where he returned the next day for Officer Steaveson's interview.
     This court disagrees with respondent that the fact that Heathcote sent appellant to the school office establishes sustained fear. Heathcote's response, far from evincing a reasonable sustained fear, was an appropriate, necessary response to a disruptive classroom incident. It was Heathcote's response that called appellant's outburst to the attention of the school office and effected a five-day suspension. Appellant uttered intemperate, disrespectful remarks to Heathcote in the presence of a classroom full of students. It is obvious that this mouthing off or posturing was not designed to coerce Heathcote to do or not to do anything. There is no evidence that Heathcote felt fear beyond the time of the angry utterances.      
     In a final roundhouse argument, respondent submits that it is not the time the fear is endured but that it is, in fact, suffered or established. Respondent suggests we substitute the word "endured," "suffered," "undergone," or "established" for the word "sustained." However, the phrasing of section 422—"causes the person reasonably to be in sustained fear"—does not accommodate respondent's view of the meaning of the word sustain. Respondent's view is unsupported by any cited authority. Although in Allen, 15 minutes sufficed to establish sustained fear, the evidence there, unlike here, showed that the defendant followed up on his threats to injure the victim. Even respondent's hypothetical of a victim collapsing into unconsciousness from a massive heart attack because of a threat from an armed assailant is more probative of an indirect battery—or if the victim died from fright, a criminal homicide—rather than "sustained fear." In sum, there is nothing in the record here to support a finding of sustained fear.    
     It is this court's opinion that section 422 was not enacted to punish an angry adolescent's utterances, unless they otherwise qualify as terrorist threats under that statute. Appellant's statement was an emotional response to an accident rather than a death threat that induced sustained fear. Although what appellant did was wrong, we are hesitant to change this school confrontation between a student and a teacher to a terrorist threat. Students who misbehave should be taught a lesson, but not, as in this case, a penal one.

         A twelve-year-old juvenile sat a desk outside his classroom waiting for the principal to discuss “some issues from the previous day.” He was drawing a picture which was confiscated by a teacher from the school who showed the picture to the juvenile’s teacher, Mrs. F. The drawing was of a violent scene of the juvenile shooting Mrs. F. The juvenile left the desk and entered and removed another piece of paper from the classroom. He drew another picture. Moments later the juvenile again entered the classroom and stood near the doorway. He held up a second picture which depicted the juvenile pointing a gun at Mrs. F. He looked at Mrs. F. and “and in a defiant tone” said “[D]o you want this one too?” However, after seeing the first drawing, and "[f]rom his posture, [and] the look on his face," Mrs. F realized that the juvenile was very upset and very angry. Because she did not want the juvenile to approach her, she instructed him to give the drawing to another student, who then gave it to Mrs. F. The juvenile returned to his desk in the hall without further comment. Mrs. F testified that, after seeing the second drawing, she became "apprehensive" and "[a]fraid for [her] safety." The juvenile immediately was suspected for three days. At the end of the day, he was seen loitering near Mrs. F.’s car. He was adjudicated a juvenile based on his threatening a teacher with the second drawing. Commonwealth v. Milo M. 33 Mass 149 (2001).

        

        

CHAPTER TWO FIRST AMENDMENT

         33 Mass. 149 (2001)

         COMMONWEALTH v. MILO M., a juvenile.

         Supreme Judicial Court of Massachusetts, Worcester.

         November 7, 2000.

         January 5, 2001.

         IRELAND, J.

         Milo M., a juvenile defendant, appeals from the Juvenile Court's adjudication of him as delinquent by reason of threatening his teacher in violation of G. L. c. 275, § 2. While public schools remain very safe places for children to be, with respect to this appeal, we face the important and troubling question whether, given recent, highly publicized incidents of school violence, a drawing that depicts a student pointing a gun at his teacher constitutes a threat. We conclude that it does, and thus, affirm the adjudication of delinquency.

         1. Facts and procedural history. On October 27, 1998, the twelve year old juvenile sat at a desk in the hall directly outside of his classroom and drew a picture. While the juvenile was awaiting the principal's arrival to address with him "some issues from the previous day," a teacher at the school confiscated the drawing and showed it to the juvenile's teacher, Mrs. F. The drawing depicted a violent scene of the juvenile shooting Mrs. F. See Appendix A. Meanwhile, the juvenile left the desk, entered the classroom, took a piece of paper, returned to the desk in the hall and "proceeded to draw another picture." Moments later, the juvenile reentered the classroom and stood near the doorway. He held up the second picture, which depicted the juvenile pointing a gun at Mrs. F. See Appendix B. He looked at Mrs. F and in a defiant tone said, "[D]o you want this one too?" From where she was standing, Mrs. F could not see the drawing. However, after seeing the first drawing, and "[f]rom his posture, [and] the look on his face," Mrs. F realized that the juvenile was very upset and very angry. Because she did not want the juvenile to approach her, she instructed him to give the drawing to another student, who then gave it to Mrs. F. The juvenile returned to his desk in the hall without further comment. Mrs. F testified that, after seeing the second drawing, she became "apprehensive" and "[a]fraid for [her] safety." Apparently, as a result of these incidents, the juvenile was suspended immediately for three days and sent home. However, at the end of that same school day, both Mrs. F and the teacher who confiscated the first drawing witnessed the juvenile at the school, loitering very near Mrs. F's car.

         2. The standard applied. The word "threatened" is not defined in the Massachusetts threat statute, G. L. c. 275, § 2. However, "[t]he elements of threatening a crime include an expression of intention to inflict a crime on another and an ability to do so in circumstances that would justify apprehension on the part of the recipient of the threat."

         As the juvenile concedes, the judge based his ruling on a finding that "it was reasonable to fear that the [juvenile] had the intention and ability to carry out the threat." This objective finding reflects the judge's correct application of the law. The absence of any other references to an objective standard in his ruling does not create a substantial risk of a miscarriage of justice.

         3. Findings of fact and sufficiency of the evidence. The juvenile next argues that the judge's determinations that the juvenile (1) had the intention and ability to commit a crime that would justify apprehension on the part of Mrs. F; and (2) communicated the threat to Mrs. F were clearly erroneous. The juvenile also seems to argue that there was insufficient evidence to support the judge's finding that the juvenile threatened Mrs. F. Specifically, the juvenile contends that the judge "had no evidence of [the juvenile's] ability to commit the threatened crime before [him], and therefore, the trial court based its decision on insufficient evidence."

         There was sufficient evidence to support the judge's finding that the juvenile expressed an intent to commit the threatened crime and an ability to do so in circumstances that would justify apprehension on Mrs. F's part. In making this determination, we consider "the context in which the allegedly threatening [drawing was given to Mrs. F] and all of the surrounding circumstances." The juvenile's intention to carry out the threat may be inferred from several facts. First, the content of each drawing separately evidences his intent. The first drawing portrays a figure, labeled with the juvenile's name, pointing what appears to be a gun at another figure, labeled with Mrs. F's name. The Mrs. F figure has her hands clasped in front of her and is crying and pleading, "Please don't kill me." Drawn directly next to the Mrs. F figure is another unlabeled figure, whose head is falling off to the right. At the bottom of the drawing is the word "Blood," written in large letters. The second drawing depicts a figure labeled with the juvenile's name, aiming a gun at another figure, labeled with Mrs. F's name. Directly above the Mrs. F figure are the words "Pissy Pants." The Mrs. F figure is kneeling with her hands clasped in front of her, and appears to have urinated on herself, suggesting her extreme fear of being shot. Some words are written inside a box drawn under the barrel of the gun; one of the words appears to be "Bang." The content of both drawings makes the juvenile's intent to harm Mrs. F clear. Second, the juvenile made not just one, but two drawings, both of which depicted images of himself perpetrating violence upon Mrs. F. The judge could have inferred the juvenile's intent from the number of drawings. Third, the juvenile's intent may be inferred from his very angry demeanor and defiant manner toward Mrs. F when he held out the drawing to her. Thus, there was sufficient evidence to support the judge's finding that the drawing was "an expression of an intention to harm [Mrs. F]." As to the juvenile's present ability to carry out the threat, the juvenile contends that "there was no direct evidence that the [juvenile] had the ability to commit this crime." There was, however, sufficient circumstantial evidence to support this finding. This is not a case where the finding of ability "rest[s] on surmise, conjecture, or guesswork." Indeed, as discussed above, the juvenile held the second of two very violent drawings out to Mrs. F in an angry and defiant manner. Moreover, prior to the incident, the juvenile was sitting out in the hall, awaiting the principal's arrival. 156*156 Although it is not clear exactly what, if anything, the juvenile had done to warrant this discipline, the teacher who confiscated the first drawing testified that "[u]sually, if a student is outside the room, [the student] had done something to cause that situation . . . ." Thus, the judge could have reasonably inferred that the juvenile was already being disciplined, and that Mrs. F, as his teacher, "was familiar with the [juvenile's] history" at school and in her classroom. Moreover, although there is no evidence that the juvenile possessed an immediate ability to carry out the threat at the time he communicated the drawing to Mrs. F, this does "not mean that [the juvenile] could not have carried out his threat at a later time." Id. (presence of other individuals capable of intervening at time defendant addressed victim did not render otherwise threatening statements nonthreatening). Indeed, the juvenile's ability to carry out the threat in the future could have been inferred from the fact that the juvenile was seen loitering near Mrs. F's car later the same day.

         Finally, given the recent highly publicized, school-related shootings by students, we take judicial notice of the actual and potential violence in public schools. Although we note that schools remain very safe places for children to be, such violent episodes are matters of common knowledge, particularly within the teaching community, and thus, are "indisputably true." Recently, "[o]ther children of like age [have] made similar threats . . .  and [have] carried them out with tragic consequences for both juveniles and their victims." These factors, when considered in light of the "climate of apprehension" concerning school violence in which this incident occurred, make Mrs. F's fear that the juvenile could carry out the threat quite reasonable and justifiable.

    Finally, we conclude that the record supports the finding that the juvenile communicated the threat, vis-à-vis the second drawing, to Mrs. F. Indeed, the obviously angry juvenile entered Mrs. F's classroom, held out the second violent picture—the content of which was directed at Mrs. F—to her and defiantly asked, "[D]o you want this one too?" Although Mrs. F testified that initially, she could not "really see" the picture, she was able to once she received it from the other student shortly thereafter. From these facts, the judge could have found that the drawing itself, when held out to Mrs. F, communicated the threat. Viewed in the light most favorable to the Commonwealth, the combination of these factors sufficiently supports the finding that the juvenile communicated the threat to Mrs. F.

    This evidence, when viewed as a whole "may constitute the requisite expression [of intention to do bodily harm], and may indicate additionally, in these circumstances, ability and apprehension." Thus, we find that sufficient evidence supports the judge's decision that the drawing constituted a threat.  

    The adjudication of delinquency is affirmed.

          It is a felony under 18 U.S.C. § 879(a)(3), to threaten to kill or to inflict bodily harm on a major presidential candidate. Walter Bagdasarian, posted two statements on an online message board two weeks before the presidential election: (1) "Re: Obama fk the n___, he will have a 50 cal in the head soon" and (2) "shoot the nig." 18 U.S.C. § 879(a)(3), makes it a crime to "knowingly and willfully threaten[ ] to kill, kidnap, or inflict bodily harm upon . . . a major candidate for the office of President or Vice President, or a member of the immediate family of such candidate." The statute is intended to protect people from being placed in fear of violence and deter individuals from making threats and eventually carrying out criminal behavior.    

        
    The prosecutor is required to establish that the statement would be understood by “people hearing or reading it in context as a serious expression of an intent to kill or injure a major candidate for President.” The prosecutor also must establish that the defendant “intended that the statement be understood as a threat.”               

        
     The police seized six firearms during a search of Bagdasrian’s home This included a Remington model 700ML .50 caliber muzzle-loading rifle, as well as .50 caliber ammunition. An email sent on Election day with the subject “Re. and so it begins” stated, "Pistol??? Dude, Josh needs to get us one of these, just shoot the nigga's car and POOF!" The email had a link to a webpage advertising a large caliber rifle. An email sent by Bagdasarian on same day read "Pistol . . . plink plink plink Now when you use a 50 cal on a n__ car you get this." It included a link to a video of a propane tank, a pile of debris, and two junked cars being blown up. The defendant's messages were posted under the screen name "californiaradial." Should Bagdasarian be held liable for threatening President Obama? See United States v. Bagdasarian, __F.3d__ (9th Cir. 2011).

        

         DID BAGDASARIAN THREATEN PRESIDENTIAL CANDIDATE BARACK OBAMA?

         United States v. Bagdasarian

         __F.3d___ (9th Cir. 2011)

         Reinhardt, J.

Issue  

The election of our first black president produced a campaign with vitriolic personal attacks and, ultimately, sentiments of national pride and good will. The latter was short-lived on the part of some, politicians and non-politicians alike, and the vitriol continued as President Obama's term of office commenced. To those familiar with American political history, none of this should have come as a surprise. Although Justice Scalia writes that "[o]bservers of the past few national elections have expressed concern about the increase of character assassination . . . engaged in by political candidates and their supporters,"¹ mudslinging has long been a staple of U.S. presidential elections. Justice Scalia, though analyzing a current issue, uncharacteristically overlooked the experience of our Founding Fathers. In the country's first contested presidential election of 1800, supporters of Thomas Jefferson claimed that incumbent John Adams wanted to marry off his son to the daughter of King George III to create an American dynasty under British rule; Adams supporters called Jefferson "a mean-spirited, low-lived fellow, the son of a half-breed Indian squaw, sired by a Virginia mulatto father."² Abraham Lincoln was derided as an ape, ghoul, lunatic, and savage,³ while Andrew Jackson was accused of adultery and murder, and opponents of Grover Cleveland chanted slogans that he had fathered a child out of wedlock. Still, the 2008 presidential election was unique in the combination of racial, religious, and ethnic bias that contributed to the extreme enmity expressed at various points during the campaign.⁶ Much of this bias was misinformed because although the presidential candidate was indeed black, he was neither, as some insisted, Muslim nor foreign born.⁷

    Here, we review a district court's conviction under 18 U.S.C. § 879(a)(3), which makes it a felony to threaten to kill or do bodily harm to a major presidential candidate. The defendant Walter Bagdasarian, an especially unpleasant fellow, was found guilty on two counts of making the following statements on an online message board two weeks before the presidential election: (1) "Re: Obama fk the n___, he will have a 50 cal in the head soon" and (2) "shoot the nig."⁸ These statements are particularly repugnant because they directly encourage violence.                      

Facts          

On October 22, 2008, when Barack Obama's election was looking more and more likely, Bagdasarian, under the username "californiaradial," joined a "Yahoo! Finance—American International Group" message board, on which members of the public posted messages concerning financial matters, AIG, and other topics. At 1:15 a.m. on the day that he joined, Bagdasarian posted the following statement on the message board: "Re: Obama fk the n___, he will have a 50 cal in the head soon." About twenty minutes later, he posted another statement on the same message board: "shoot the nig country fkd for another 4 years+, what nig has done ANYTHING right???? long term???? never in history, except sambos." Bagdasarian also posted statements on the same message board that he had been extremely intoxicated at the time that he made the two earlier statements. He repeated at trial that he had been drinking heavily on October 22. Another participant on the message board, John Base, a retired Air Force officer, reported Bagdasarian's second statement regarding Obama to the Los Angeles Field Office of the United States Secret Service that same morning. Base told the Secret Service that an individual identified by the username "californiaradial" had made alarming statements directed at the presidential candidate. He also provided the Secret Service with the Internet address link to the "shoot the nig" message board posting.
      A Secret Service agent located this posting and the "Obama fk the n___" posting on the Yahoo! message board, and, a week later, Yahoo! provided the Secret Service with subscriber information for californiaradial@yahoo.com, registered in La Mesa, California. Yahoo! also provided the Secret Service with the Internet Protocol history for the "californiaradial" email account, which Service agents used to identify the IP address from which the "shoot the nig" and "Obama fk the n__" statements were posted. This IP address led the Service agents to Bagdasarian's home in La Mesa.
     A month after the two statements for which Bagdasarian was indicted were posted on the AIG message board, two agents visited and interviewed him and he admitted to posting the statements from his home computer. When asked, he also told the agents that he had weapons in his home. The agents found one weapon on a nearby shelf; Bagdasarian said he had other weapons in addition. Four days later, agents executed a federal search warrant at Bagdasarian's home and found six firearms, including a Remington model 700ML .50 caliber muzzle-loading rifle, as well as .50 caliber ammunition.
     The agents also searched the hard drive of Bagdasarian's home computer and recovered an email sent on Election Day with the subject, "Re: And so it begins." The email's text stated, "Pistol??? Dude, Josh needs to get us one of these, just shoot the nigga's car and POOF!" The email provided a link to a Web page advertising a large caliber rifle. Another email that Bagdasarian sent the same day with the same subject heading stated, "Pistol . . . plink plink plink Now when you use a 50 cal on a n__ car you get this." It included a link to a video of a propane tank, a pile of debris, and two junked cars being blown up. These email messages would appear to confirm the malevolent nature of the previous statements as well as Bagdasarian's own malignant nature. Unlike in the case of his first two message board statements two weeks earlier, this time he did not attempt to excuse his inexcusable conduct on the ground that he was intoxicated.
     After the Secret Service filed a criminal complaint against Bagdasarian for the posting the "shoot the nig" and "Obama fk the n___" statements, the Government filed the superseding indictment at issue here, charging Bagdasarian in two counts under 18 U.S.C. 879(a)(3) with threatening to kill and inflict bodily harm upon a major candidate for the office of president of the United States. Bagdasarian waived his right to a jury trial. His case was tried before a district judge upon the foregoing stipulated facts. The district court found Bagdasarian guilty on both counts. He appeals.
 

Reasoning
The federal statute under which Bagdasarian was indicted, 18 U.S.C. § 879(a)(3), makes it a crime to "knowingly and willfully threaten[ ] to kill, kidnap, or inflict bodily harm upon . . . a major candidate for the office of President or Vice President, or a member of the immediate family of such candidate." A statute like § 879, "which makes criminal a form of pure speech, must be interpreted with the commands of the First Amendment clearly in mind." Although the State cannot criminalize constitutionally protected speech, the First Amendment does not immunize "true threats."   
    Two elements must be met for a statement to constitute an offense under 18 U.S.C. 879(a)(3): objective and subjective. The first is that the statement would be understood by people hearing or reading it in context as a serious expression of an intent to kill or injure a major candidate for president. The second is that the defendant intended that the statement be understood as a threat. Because Bagdasarian's conviction under § 879 can be upheld only if both the objective and subjective requirements are met, neither standard is the obvious starting point for our analysis, and our resolution of either issue may serve as an alternate holding.
     We begin with the objective test. One question under § 879(a)(3) is whether a reasonable person who heard the statement would have interpreted it as a threat. This objective test requires the fact-finder to "look at the entire factual context of [the] statements including: the surrounding events, the listeners' reaction, and whether the words are conditional." It is necessary, then, to determine whether Bagdasarian's statements, considered in their full context, "would be interpreted by those to whom the maker communicates the statement as a serious expression of an intention to inflict bodily harm on or to take the life of [Obama]." The evidence is not sufficient to support a conclusion that a reasonable person who read the postings within or without the relevant context would have understood either to mean that Bagdasarian threatened to injure or kill the presidential candidate.
    The "Obama fk the n__" statement is a prediction that Obama "will have a 50 cal in the head soon." It conveys no explicit or implicit threat on the part of Bagdasarian that he himself will kill or injure Obama. Nor does the second statement impart a threat. "[S]hoot the nig" is instead an imperative intended to encourage others to take violent action, if not simply an expression of rage or frustration. The threat statute, however, does not criminalize predictions or exhortations to others to injure or kill the President.¹⁸ It is difficult to see how a rational trier of fact could reasonably have found that either statement, on its face or taken in context, expresses a threat against Obama by Bagdasarian.
     There is no disputing that neither of Bagdasarian's statements was conditional and that both were alarming and dangerous. The first statement, which referred to Obama as a "n___" who "will have a 50 cal in the head soon," coupled a racial slur with an assassination forecast during a highly controversial campaign that would ultimately make Obama the country's first black president. No less troubling is the defendant's second statement imploring others to "shoot the nig," lest the "country [be] fkd for another 4 years+" because "never in history" has a black person "done ANYTHING right." There are many unstable individuals in this nation to whom assault weapons and other firearms are readily available, some of whom might believe that they were doing the nation a service were they to follow Bagdasarian's commandment. There is nevertheless insufficient evidence that either statement constituted a threat or would be construed by a reasonable person as a genuine threat by Bagdasarian against Obama.
     When our law punishes words, we must examine the surrounding circumstances to discern the significance of those words' utterance, but must not distort or embellish their plain meaning so that the law may reach them. Here, the meaning of the words is absolutely plain.                   
     The Government argues that among the relevant elements of the factual context is that the defendant's messages were anonymous, posted only under the screen name "californiaradial." We grant that in some circumstances a speaker's anonymity could influence a listener's perception of danger. But the Government offers no support for its contention that the imperative "shoot the nig" or the prediction that Obama "will have a 50 cal in the head soon" would be more rather than less likely to be regarded as a threat under circumstances in which the speaker's identity is unknown. Whatever the effect, in other circumstances, of anonymity on a reasonable interpretation of Bagdasarian's statements, the financial message board to which he posted them is a nonviolent discussion forum that would tend to blunt any perception that statements made there were serious expressions of intended violence.        
     When, in this case, we look to "[c]ontextual information . . . that [could] have a bearing on whether [Bagdasarian's] statements might reasonably be interpreted as a threat," the only possible evidence is that three or four discussion board members wrote that they planned to alert authorities to the "shoot the nig" posting, although only one reader, Air Force officer Base, actually did. The dissent identifies the responsive postings as the "[m]ost telling" evidence that a reasonable person would have perceived Bagdasarian's messages as a threat. In doing so, it mischaracterizes these postings as "indicat[ing] that [their authors] perceived 'shoot the nig' as a threat to candidate Obama." In fact, none of the responses said anything about a threat. Their authors may well have thought that Bagdasarian's messages were impermissible or offensive for some other reason or that they encouraged racism or violence. We fail to see why the fact that several people had negative reactions to the messages should be taken to mean that they or others interpreted them as a threat. It is certainly more significant that among the numerous persons who read Bagdasarian's messages, the record reveals only one who was sufficiently disturbed to actually notify the authorities.²¹
      The Government contends that two additional facts show that Bagdasarian's statements might reasonably be interpreted as a threat. The first is that when Bagdasarian made the statement that Obama "will have a 50 cal in the head soon," Bagdasarian actually had .50 caliber weapons and ammunition in his home. The second is that on Election Day, two weeks after posting the messages, he sent an email that read, "Pistol . . . plink plink plink Now when you use a 50 cal on a nigga car you get this," and linked to a video of debris and two junked cars being blown up. Nobody who read the message board postings, however, knew that he had a .50 caliber gun or that he would send the later emails. Neither of these facts could therefore, under an objective test, "have a bearing on whether [Bagdasarian's] statements might reasonably be interpreted as a threat" by a reasonable person in the position of those who saw his postings on the AIG discussion board.
     Even if "shoot the nig" or "[he] will have a 50 cal in the head soon" could reasonably have been perceived by objective observers as threats within the factual context, this alone would not have been enough to convict Bagdasarian under 18 U.S.C.  879(a)(3). The Government must also show that he made the statements intending that they be taken as a threat. A statement that the speaker does not intend as a threat is afforded constitutional protection and cannot be held criminal.             
     We have explained why neither of Bagdasarian's statements on its face constitutes a true threat unprotected by the First Amendment. Most significantly, one is predictive in nature and the other exhortatory. For the same reasons, the evidence is not sufficient for any reasonable finder of fact to have concluded beyond a reasonable doubt that Bagdasarian intended that his statements be taken as threats. The district court's inference of Bagdasarian's intent to threaten is unreasonable taken in context and does not, even when considered in the light most favorable to the prosecution, lie within the permissible range of interpretations of his message board postings. As a matter of law, neither statement may be held to constitute a "true threat."
     As we discussed in the previous section, the prediction that Obama "will have a 50 cal in the head soon" is not a threat on its face because it does not convey the notion that Bagdasarian himself had plans to fulfill the prediction that Obama would be killed, either now or in the future. Neither does the "shoot the nig" statement reflect the defendant's intent to threaten that he himself will kill or injure Obama. Rather, "shoot the nig" expresses the imperative that some unknown third party should take violent action. The statement makes no reference to Bagdasarian himself and so, like the first statement, cannot reasonably be taken to express his intent to shoot Obama.²²
    As with our analysis of the objective test, we do not confine our examination of subjective intent to the defendant's statements alone. [T]he Government points to the two facts that we discussed in our analysis of objective understanding as evidence that Bagdasarian intended to make a threat: (1) that he was later found to possess a .50 caliber gun like the one he mentioned in the "Obama fk the n__" posting, and (2) that the Election Day email referred to the use of "a 50 cal on a nigga car." Neither fact is sufficient to prove beyond a reasonable doubt that Bagdasarian intended to make a threat when, two weeks before Election Day, he posted the two statements for which he was indicted.
     Given that Bagdasarian's statements, "Re: Obama fk the n__, he will have a 50 cal in the head soon" and "shoot the nig" fail to express any intent on his part to take any action, the fact that he possessed the weapons is not sufficient to establish that he intended to threaten Obama himself. Similarly, the Election Day emails do little to advance the prosecution's case. They simply provide additional information—Web links to a video of debris and two junked cars being blown up and to an advertisement for assault rifles available for purchase online—that Bagdasarian may have believed would tend to encourage the email's recipient to take violent action against Obama. But, as we have explained, incitement to kill or injure a presidential candidate does not qualify as an offense under § 879(a)(3).   

Holding

Because Bagdarsarian's statement does not satisfy either th esubjective or objective prong of § 879 (a) (3) the defendants should be acquitted.

Wardlaw, J. concurring in part and dissenting in part

" Reading the two statements charged in the indictment in isolation, the majority dissects them to conclude that they were not even threats. It fails to consider the ominous backdrop of America's history of racial violence, the uniquely racial and violent undercurrents of the 2008 presidential election, the entirety of Mr. Bagdasarian's postings on October 22, two weeks before the 2008 election, and the listeners who not only perceived the posts as threatening  when they were made, but who acted on that perception.
     Mr. Bagdasarian's statements portended no less impending harm because they did not completely spell out the threat. For example, given this country's history of Ku Klux Klan violence, a burning cross can signify "a message of intimidation" and "the possibility of injury or death. . . . . Mr. Bagdasarian posted at a time when violent and racist threats against candidate Obama were being taken very seriously. Though President Obama currently resides in the White House, the prospect of his election ignited polarizing racial animus, including "racist chatter on white supremacist Web sites." Not only did this animus materialize in at least one viable assassination attempt, but the heightened fear that candidate Obama would be the target of violence spurred the Department of Homeland Security to authorize Secret Service protection as early as May 2007, before candidate Obama was even nominated for the presidency, making him the only presidential candidate to receive protection so early.⁴
    Certainly as of fall 2008, our country's collective experience with Internet threats and postings that presaged tragic events made it all the more likely that a reasonable person would foresee that even anonymous internet postings would be perceived as threats.⁵ The country had witnessed the 1999 Columbine High School shootings by Dylan Klebold and Eric Harris, who had posted death threats on his website, along with discussions of bombmaking and killing students and teachers. In 2005, days after an Orange County teenager posted on an Internet message board that he would "start a Terror Campaign to hurt those that have hurt me," the teen went on a neighborhood shooting spree, killing a man and his daughter. Also in 2005, a teenager who was an "avid participant in Internet discussion groups . . . with postings under his name that mention weapons and violence amid broader conversations about politics, the paranormal, time travel, reincarnation and Big Foot" killed seven people and himself at his high school in Minnesota.
      And in 2007, following a disturbing online posting, a Virginia Tech student shot and killed thirty-two people on the campus. In the wake of this experience, it is only logical to conclude that on-line postings of impending violence would be perceived by reasonable people as serious threats. As one district attorney put it following yet another student's threat to shoot his classmates, "Any kid that makes a direct threat of this nature on the tail of what happened in Santee can reasonably expect there to be a very dramatic reaction. . . ."        
     In an era when physicians have been murdered in their places of worship; families of Judges have been slain; a Judge of the Eleventh Circuit Court of Appeals and State Court Judges have been blown up or shot; a Federal Courthouse ripped apart by homemade explosives, all in the name of political dissent or religious fanaticism, it cannot be said that Defendant's statements are unlikely to incite imminent lawless action.

              The majority does not dispute that Mr. Bagdasarian's statements were nonconditional, alarming, and dangerous, but finds their threatening nature blunted by the fact that Mr. Bagdasarian posted them on a financial "non-violent" message board. Although the message board itself focused on AIG's 2008 financial meltdown, the individuals who posted naturally veered into the political implications of the crashing financial markets.⁷ Mr. Bagdasarian's own postings on the board contained increasingly political, violent, and vicious attacks targeting candidate Obama. That he posted on a financial message board does not diminish the nature of the threats; just as they would be no less diminished had he shouted them on the floor of the New York Stock Exchange.
      The majority focuses narrowly on the charged threats and dismisses them as mere imperatives or predictions. But our case law is to the contrary. We do not require that the speaker in a threats case explicitly threaten that he himself is going to injure or kill the intended victim; rather, we examine the surrounding circumstances to determine whether a reasonable person in the speaker's shoes would foresee that his statements would be perceived as threats.
     Most telling were the contemporaneous reactions of the recipients of Mr. Bagdasarian's posted threats.¹¹ At least four individuals indicated that they perceived "shoot the nig" as a threat to candidate Obama, and the threat was in fact reported to the United States Secret Service, which then launched into action to prevent the threat from materializing. There can be no doubt that "construing the evidence in the light most favorable to the prosecution."

              Although it is a closer question, as questions of subjective intent generally are, after independently reviewing the record, I believe the district court did not err in finding that Mr. Bagdasarian subjectively intended to threaten presidential candidate Obama. To prove subjective intent, the government must show that "the speaker means to communicate a serious expression of an intent to commit an unlawful act of violence." The government need not prove that Mr. Bagdasarian "himself will kill" candidate Obama, but need demonstrate defendant's messages were anonymous, posted only under the screen name "californiaradial." In a night of posting on the AIG board, Mr. Bagdasarian made numerous explosive comments aimed at candidate Obama. Although only two of his posts were charged as threats, they, together with his other posts, indicate that he intended to threaten. Others on the message board posted comments that could be described as political rhetoric, but it was Mr. Bagdasarian alone who introduced the posts tinged with violence and racism toward Obama and it was Mr. Bagdasarian alone who took the affirmative step of introducing the ominous thread headed "shoot the nig," against which the other board participants reacted so strongly. And at the very time that Mr. Bagdasarian posted “fk the n__, he will have a 50 cal in the head soon," he possessed in his home a Remington model 700 ML .50 caliber muzzle-loading rifle and .50 caliber ammunition with which to load it. . . . .
     As the district court found, Mr. Bagdasarian's posts were not casual one-off comments. When other participants confronted him with the gravity of starting a thread labeled "shoot the nig" by indicating they were reporting him and that law enforcement was monitoring him, he evidenced his own belief that his posts were threatening. First, he wanted to know "which [law enforcement] agency" was monitoring the message board. Then he began to make excuses for his threatening comments, posting: "Listen up, crybaby ole white boy, I was drunk."
     Mr. Bagdasarian had imbibed some alcohol that night, but it did not prevent him from tracking the conversations occurring on multiple threads and posting responses over a seven hour period. Moreover, his postings that night were specific, relevant to the context of each thread and even included wordplay. If anything, his intake of "vino," as he described it, may have lowered his inhibitions sufficiently that he was in fact posting his genuinely held views about Obama, including a true expression of his intent to threaten the candidate with harm. As the district court found, that Mr. Bagdasarian was drinking does not make his statements any less threatening than they were at the time he made them, and his 8:00 a.m. posting that he was drunk when he started the "shoot the nig" thread at 1:35 a.m. that morning only indicates that he woke up to realize the serious nature of his threats.
     And Mr. Bagdasarian's continuing threats of harm to President-elect Obama two weeks later, when he was presumably sober, further evidence his intent to threaten. He sent two emails on Election Day headed: "And so it begins." The first, which provided a link to the … website depicting a Barrett model 82a1 rifle, stated: "Josh needs to get us one of these, just shoot the nigga's car and POOF!" The second provided a link to a YouTube video showing a car being blown up. That email stated: "Pistol . . . plink plink plink Now when you use a 50 cal on a n___ car you get this."
    The evidence demonstrates that Mr. Bagdasarian, an adult man who knowingly possessed a .50 caliber rifle, intentionally posted on the "OBAMA" thread: "fk the n__, he will have a 50 cal in the head soon," understanding he had access to that very weapon and could implement the threat. Only twenty minutes later, he initiated the "shoot the nig" thread, under which he wrote "country fkd for another four years+, what nig has done ANYTHING right???? long term???? never in history, except sambos." That Mr. Bagdasarian later made a public apology does not detract from his intent at the time; his intent to threaten harm to candidate Obama generated fear for the candidate's safety and mobilized the Secret Service, which tracked Mr. Bagdasarian down. Mr. Bagdasarian did not come forward; the Secret Service had to locate him. He hid behind his "californiaradial" cloak of anonymity with the hope, one can infer, that he would not be found out. Therefore, independently reviewing the entire record, I conclude that at the time Mr. Bagdasarian made the charged threats, he acted with the specific intent to threaten candidate Obama.
    The prohibition on true threats "protects individuals from the fear of violence and from the disruption that fear engenders." Undoubtedly, the need for protection takes on exceptional importance in the context of a presidential candidacy. Not only could the fear engendered by true threats limit a candidate's freedom to participate fully in the debate leading up to the election—thus depriving the campaign process of its valuable public function,—but the failure to take such threats seriously could ultimately deprive our country of a public servant and potential leader. Because the evidence presented at trial as to objective intent is more than sufficient to allow at least one rational trier of fact to find that Mr. Bagdasarian's statements were threats in violation of § 879(a)(3), and because an independent review convinces me that the constitutional requirement of subjective intent is met, I would affirm Mr. Bagdasarian's conviction.

         Questions for Discussion

1.  What is the legal test for a “true threat” under § 879(a)(3)?                    

2.  Why the court overturns Bagdasarian’s conviction?  

3.   Are you persuaded by the opinion of the dissenting judge? Why? Why not?

         On December 16, 2003, President George Bush signed into law the Controlling the Assault of Non-Solicited Pornography and Marketing Act of 2003, which prohibits the sending of bulk commercial e-mail that uses false identities and misleading subject lines. In addition, commercial e-mail must include a valid post office address and a provision for consumers to indicate that they do not want to receive additional e-mail. E-mail messages with pornographic content will require a specific label. Violators will be liable for up to $250 per spam-mail violation and fines may total as much as two million dollars. Violators also may serve up to five years in prison. It is estimated that two hundred "kingpin spammers" are responsible for ninety percent of e-mail. As a judge, how would you balance the right to privacy and First Amendment rights in considering the constitutionality of this statute?

         Controlling the Assault of Non-Solicited Pornography and Marketing Act, 2003. The argument is that individuals should be free from uninvited and misleading e-mail communications that consume time and energy and distract attention from welcome messages. The law authorizes the creation of a registry for individuals who desire to be free from solicitations. On the other hand, individuals "on-line" opens themselves to the free flow of ideas and assume the risk of exposure to offensive and manipulative communications. 

The Alabama Code declares that is unlawful for "any person to knowingly distribute, possess with intent to distribute, or offer or agree to distribute any obscene material or any device designed or marketed as useful primarily for the stimulation of human genital organs for any thing of pecuniary value." A person violating this provision may be punished by a fine of not more than ten thousand dollars and may be imprisoned in the county jail or sentenced to hard labor for the county for not more than one year. A corporation or business may be penalized between ten and fifty thousand dollars for a second violation, Alabama Code § 13A-12-200.2(a)(1) (Supp.2001). Other provisions prohibit distribution of such material by a wholesaler as well as the production of such material or device. A number of individuals challenged the constitutionality of the Alabama statute and alleged that it impermissibly infringed their right to sexual privacy by interfering with intimate adult, consensual, sexual relationships. One plaintiff alleged that she used sexual devices during relations with her husband and that prior to using these devices that she had been unable to reach an orgasm for roughly ten years. Another divorced female used sexual devices as a means of avoiding sexually transmitted diseases when sexually active. Two married individuals alleged that they used sexual devices to restore trust and understanding in their relationship. A sixty-one-year-old male explained that he is fourteen years older than his wife and suffers from a respiratory condition and other disabilities. The use of sexual devices allegedly improved his sexual relationship with his wife. Another woman testified that the use of a sexual device enabled her to experience pleasure without pain or discomfort. May Alabama prohibit the sale of sexual "devices" to individuals? See Williams v. King, 478 F.3d 1316 (11th Cir. 2007).

         Williams v. Pryor, 220 F.Supp.2d 1257 (N.D. Ala. 2002). Williams v. Pryor, 220 F.Supp.2d 1257 (N.D. Ala. 2002).

         The Federal District Court found a historical recognition and contemporary trend towards recognition of the privacy interest of married and non-married persons to engage in sexual activity. The prohibition on the sale of such devices burdened this right by limiting the ability of individuals to employ these mechanisms to enhance their experience. Individuals would be forced to travel to another state to purchase these items, limiting their access to such devices. Alabama’s interest in marriage, procreation and family did not justify this legislation since the use of these mechanisms had been shown to strengthen marriage and the family.

         Williams v. King, 478 F.3d 1316 (11th Cir 2007).

         In Lawrence the Supreme Court held that the Texas sodomy statute challenged in that case "further[ed] no legitimate state interest which can justify its intrusion into the personal and private life of the individual." In so holding, the Lawrence majority relied on Justice Stevens's analysis in his Bowers dissent: "[T]he fact that the governing majority in a State has traditionally viewed a particular practice as immoral is not a sufficient reason for upholding a law prohibiting the practice . . . ." The Court applied Justice Stevens's analysis in overruling Bowers and in holding that the Texas sodomy statute was unconstitutional.
    However, while the statute at issue in Lawrence criminalized private sexual conduct, the statute at issue in this case forbids public, commercial activity. To the extent Lawrence rejects public morality as a legitimate government interest, it invalidates only those laws that target conduct that is both private and non-commercial. This statute targets commerce in sexual devices, an inherently public activity, whether it occurs on a street corner, in a shopping mall, or in a living room. "There is nothing 'private' or 'consensual' about the advertising and sale of a dildo." The challenged statute does not target possession, use, or even the gratuitous distribution of sexual devices. In fact, plaintiffs here continue to possess and use such devices. States have thus, while public morality was an insufficient government interest to sustain the Texas sodomy statute in Lawrence, because the challenged statute in this case does not target private activity, but public, commercial activity, the state's interest in promoting and preserving public morality remains a sufficient rational basis.
    Furthermore, we do not read Lawrence, the overruling of Bowers, or the Lawrence court's reliance on Justice Stevens's dissent, to have rendered public morality altogether illegitimate as a rational basis. The principle that "[t]he law . . . is constantly based on notions of morality," was not announced for the first time in Bowers and remains in force today. As we noted the Supreme Court has affirmed on repeated occasions that laws can be based on moral judgments. Also, we have discussed the post-Lawrence viability of public morality as a rational basis for legislation with approval. In Lofton, upholding a law prohibiting homosexual couples from adopting, we indicated that public morality likely remains a constitutionally rational basis for legislation. Accordingly, we find that public morality survives as a rational basis for legislation even after Lawrence, and we find that in this case the State's interest in the preservation of public morality remains a rational basis for the challenged statute. By upholding the statute, we do not endorse the judgment of the Alabama legislature. However misguided the legislature of Alabama may have been in enacting the statute challenged in this case, the statute is not constitutionally irrational under rational basis scrutiny because it is rationally related to the State's legitimate power to protect its view of public morality. "The Constitution presumes that . . . improvident decisions will eventually be rectified by the democratic process and that judicial intervention is generally unwarranted no matter how unwisely we may think a political branch has acted." This Court does not invalidate bad or foolish policies, only unconstitutional ones; we may not "sit as a super-legislature to judge the wisdom or desirability of legislative policy determinations made in areas that neither affect fundamental rights nor proceed along suspect lines.  

         In September 2001, Defendant Dr. Jack Kevorkian injected Youk with a lethal dose of poison. Youk suffered from ALS and signed a consent form requesting Kevorkian to take this step to alleviate Youk’s “intolerable and hopelessly incurable suffering.” During the prior two years, Youk found that he could not move his left arm or his legs, had minimal use of his right arm, and experienced difficulty swallowing and breathing. He was fed through a tube and was required to use a machine to help him breathe. Kevorkian was convicted of second-degree murder and sentenced to between ten and twenty-five years in prison. Kevorkian appealed on the grounds that Youk had exercised his right to privacy to be free from suffering. Kevorkian explained to television journalist Mike Wallace that “this could never be a crime in any society which deems itself enlightened.” Would you affirm Kevorkian’s conviction? See People v. Kevorkian, 639 N.W.3d 291 (Mich. App. 2001).

         People v. Kevorkian, 639 N.W.3d 291 (Mich. App. 2001). The defendant was convicted of second-degree murder and delivering a controlled substance. The trial court sentenced him to concurrent prison terms of ten to twenty-five years for the murder conviction and seven years for the controlled substance conviction. Defendant appeals as of right and we affirm.
    This case is about death; in particular, the death of former racecar driver Thomas Youk in September 1998. Youk was fifty-two years old and had amyotrophic lateral sclerosis (ALS), also known as Lou Gehrig's disease. Defendant twice videotaped himself interacting with Youk. In the first videotape, defendant went to Youk's home to discuss his condition. In the second videotape, defendant administered a lethal drug to Youk. Defendant later was a guest on the television news show 60 Minutes, during which segments from both videotapes were shown. The jury saw the videotapes and the 60 Minutes interview at defendant's trial. Nevertheless, defendant attempted to persuade the jury not to convict him because the murder he was charged with committing was, in his view, a "mercy killing."
     Nevertheless, euthanasia is at the core of this case. But for defendant's self-described zealotry, Thomas Youk's death would, in all probability, not have been the subject of national attention, much less a murder trial. Defendant, in what is now apparently something of an afterthought, asks us to conclude that euthanasia is legal and, therefore, to reverse his conviction on constitutional grounds. We refuse. Such a holding would be the first step down a very steep and very slippery slope. To paraphrase the United States Supreme Court in Washington v Glucksberg, it would expand the right to privacy to include a right to commit euthanasia and thus place the issue outside the arenas of public debate and legislative action. Such a holding would also involve the judiciary in deciding questions that are simply beyond our capacity. Succinctly put, there is no principled basis for us to legalize euthanasia.
     On September 15, 1998, at 9:55 p.m., defendant went to Youk's home to discuss Youk's condition. As the videotape of this discussion revealed, defendant stated that he was recording their interaction in "connection with a request from Thomas [Youk] for help in . . . ending his suffering." Youk then described his condition. He recalled that his symptoms of ALS first became obvious to him in 1994 and that he had been confined to a wheelchair since 1997. By September 1998, Youk said, he could not move his left arm or his legs, he had minimal use of his right arm, he had difficulty swallowing and breathing, he was fed through a tube, and he was forced to use a machine to help him breathe. Youk stated that, at the time, he could not do anything for himself, that he had discussed "his wishes" with his mother, brothers, and wife, and that they "understand why. It's my decision."
     Defendant then told Youk that he needed to sign a form indicating that he was consenting to a "direct injection instead of using the device, the machine." Defendant asked Youk if he wished to donate his organs, and Youk declined. Defendant then read the consent form, which stated in part:

I, Thomas Youk, the undersigned, entirely voluntarily, without any reservation, external persuasion, pressure, or duress, and after prolonged and thorough deliberation, hereby consent to the following medical procedure of my own choosing, and that you have chosen direct injection, or what they call active euthanasia, to be administered by a competent medical professional, in order to end with certainty my intolerable and hopelessly incurable suffering.
 
The meeting ended at 10:15 p.m.
 
     On September 16, 1998, at 9:49 p.m., defendant again videotaped himself and Youk at Youk's home. Youk stated that he "wanted to go through with this" and signed the consent form. Defendant remarked that he would inject Youk in the vein because "it's quicker," and stated, "now I'm going to put on a cardiogram so we know when your heart is stopped, okay." Defendant established a connection between Youk and the electrocardiogram. Defendant injected Youk with Anectine and Seconal before injecting Youk with potassium chloride. During this time, defendant provided a commentary on what was occurring:

Sleepy Tom? Tom are you asleep? And now we'll inject the Anectine. You asleep Tom? Tom? You asleep? He's asleep. Now the Potassium Chloride. This machine is recording for some reason so I'm pulling it by hand until the heart stops. It's been, it's been about two minutes since I injected the, ah, Seconal, and one minute since I injected the—. Now we're getting agonal complexes and that's about the, the Potassium Chloride will stop the heart, so. Now there's a straight line. A straight line and the cardiogram will be turned off. His heart is stopped.
 

              The police were dispatched to Youk's house on September 17, 1998, at 1:30 a.m. They found Youk lying on his bed, dead. The police also found a Federal Express receipt with defendant's name at the scene. Officials conducted Youk's autopsy at 10:00 a.m. the same day. The medical examiner listed the manner of death as homicide and the cause of death as intravenous injection of substances. During the autopsy, the medical examiner found two "fresh" needle marks on Youk's left and right wrists that had been covered with makeup. The autopsy protocol stated that the cause of death was "poisoning by intravenous injection of substances."
     Oakland County Medical Examiner Ljubisa J. Dragovic, an expert in neuropathology and pathology who later testified for the prosecution at defendant's trial, witnessed the autopsy. Dr. Dragovic found three significant drugs in Youk's bodily fluids. First, Youk had a high level of the barbiturate Seconal, also known as Secobarbital, in his blood. Seconal is a Schedule 2 controlled substance typically used to induce sleep. Dr. Dragovic believed that the amount of Seconal in Youk's blood would have killed him in a few hours. Second, Dr. Dragovic found Anectine, a paralyzing muscle relaxant, present in Youk's body in an amount that could have killed Youk within five to eight minutes by causing brain death. However, Dr. Dragovic determined that it was the third drug, potassium chloride, that defendant injected into Youk that caused his death. As Dr. Dragovic explained, when potassium chloride is injected into the body in a concentrated form at once, rather than in small amounts over time, it stops the heart from beating within a matter of seconds. According to Dr. Dragovic, the toxicology reports did not reveal the presence of potassium chloride in Youk's body because that substance is naturally present in the body after red blood cells die.
     Dr. Dragovic also confirmed that Youk had ALS. However, in Dr. Dragovic's opinion, Youk did not die from ALS, ALS was not an underlying cause of Youk's death, and ALS did not contribute to Youk's death in any way. Rather, Dr. Dragovic firmly reiterated that the poisons injected into Youk killed him, constituting a homicide.
     News correspondent Mike Wallace interviewed defendant for 60 Minutes. In the first clip from the interview shown to the jury, Wallace stated at the outset, "You killed him." Defendant responded: "I did, but it could be Manslaughter not Murder. It's not necessarily Murder. But it doesn't bother me what you call it. I know what it is. This could never be a crime in any society which deems itself enlightened." Defendant indicated that he was  making an example of Youk. Wallace then suggested that Youk was initially a little reluctant because Youk "thought he was getting assisted suicide." Defendant replied that "this is better than assisted suicide, I explained that to him. It's better control."
     Defendant also explained to Wallace the process leading to Youk's death. According to defendant, the first injection paralyzed Youk's muscles and slowed his ability to take in oxygen. When the oxygen was "cut off" and Youk could not breathe, defendant injected the "potassium chloride to stop the heart." Defendant then told Wallace that "either they go or I go," apparently meaning that he would be acquitted for killing Youk or, if convicted, he would starve to death in prison. As defendant put it: "I've got to force them to act. They must charge me. Because if they do not, that means they don't think it's a crime. Because they don't need any more evidence do they? Do you have to dust for fingerprints on this[?]"
     Wallace suggested that defendant was "engaged in a political, medical, macabre . . . publicity venture," and had a "ghoulish . . . desire to see the deed done." Defendant did not disagree with those assertions, stating: "Well, it could be, I, I can't argue with that. Maybe it is ghoulish. I don't know. It appears that way to you. I can't criticize you for that." In fact, defendant agreed with Wallace, emphasizing that "the main point is . . . that the deed be done." Evidently in response to the argument that legalizing euthanasia could be problematic in practice, defendant commented that "everything can be abused. You learn from abuse, you punish the abuser, and then . . . if you want to control, you say that only certain doctors can do this in certain areas, nobody else. . . . That's the way to control it."

     Defendant then returned to one of his main themes, saying:

If you don't have liberty and self-determination, you got nothing. That's what this country's built on and this is the ultimate self-determination to determine when and how you're gonna die when you're suffering.

[Wallace]: And those who say that [defendant], Dr. Death, is a fanatic?

Zealot. No, not if, sure, you try to take a liberty away and I turn fanatic. . . . I'm fighting for me, Mike, me. This is a right I want when I, I'm 71, I'll be 71. You don't know what'll happen when you get older. I may end up terribly suffering. I want some colleague to be free to come and help me when I say the time has come. That's why I'm fighting for, me. Now that sounds selfish. And if it helps everybody else, so be it….
     On appeal, defendant makes two related, but separate, constitutional arguments. First, he argues that the unenumerated rights protected by the Ninth Amendment and its Michigan constitutional counterpart include a patient's right to be free from unbearable pain and suffering. Second, he maintains that the Fourteenth Amendment and its Michigan constitutional counterpart also include this right by proscribing state deprivation of liberty without due process of law either under constitutional privacy concepts or as a "necessary and direct corollary of this position . . . that a person should not be forced to suffer unbearably." Defendant claims that he has standing to raise these due process arguments. Defendant thus contends that he is entitled to have his murder conviction reversed and no further criminal proceedings instituted against him for "aiding in Thomas Youk's assertion of his constitutional right to be free from intolerable pain and suffering."
     We review a trial court's decision to grant or deny a motion to dismiss charges for an abuse of discretion. However, review de novo is appropriate for the core constitutional questions that underlie the trial court's ruling on the motion to dismiss the charges.
     The Ninth Amendment of the United States Constitution states that "the enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people." The counterpart provision in the Michigan Constitution states that the enumeration in this constitution of certain rights shall not be construed to deny or disparage others retained by the people." The Fourteenth Amendment of the United States Constitution states, in relevant part, that no state shall "deprive any person of life, liberty, or property, without due process of law." The counterpart provision in the Michigan Constitution states, in relevant part, that "no person shall be . . . deprived of life, liberty or property, without due process of law."…
     At the outset it is important to understand the nature of defendant's constitutional claims. Defendant does not ask us to find that his actions in this matter constituted some form of permissible assisted suicide. In Michigan, assisting in a suicide—that is, providing the physical means by which another person attempts or commits suicide or participating in a physical act by which another person attempts or commits suicide—is illegal. The Michigan Supreme Court has upheld the statute in question against both a Title-Object Clause challenge under the Michigan Constitution and a Due Process Clause challenge under the United States Constitution. . . .
     Presently, a substantial number of jurisdictions have specific statutes that criminalize assisted suicide and the Model Penal Code also provides for criminal penalties. Further, nearly all states expressly disapprove of suicide and assisted suicide either in statutes dealing with durable powers of attorney in health-care situations, or in "living will" statutes. In addition, all states provide for the involuntary commitment of persons who may harm themselves as the result of mental illness, and a number of states allow the use of nondeadly force to thwart suicide attempts. Indeed, the United States Supreme Court repeatedly and unequivocally has affirmed the sanctity of human life and rejected the notion that there is a right of self-destruction inherent in any common-law doctrine or constitutional phrase.
     Here, defendant makes no attempt to assert that he was engaged in assisted suicide when he injected Youk with potassium chloride, causing his death. Rather, he asserts that if the Ninth Amendment "is to have any substantive meaning," the right to be free from inexorable pain and suffering must be among the unenumerated rights protected by that amendment and its Michigan counterpart. Further, defendant asserts that the right to be free from unbearable pain and suffering caused by a medical condition is inherently part of the liberty interests secured by the Fourteenth Amendment and its Michigan counterpart. Defendant then contends that he cannot be prosecuted for "aiding in Thomas Youk's assertion of his constitutional right to be free from intolerable pain and suffering." Although defendant's appellate counsel has carefully avoided using the words, as we have already noted, the record indicates that defendant was quite specific when describing his actions; he said he was engaged in "active euthanasia" and the consent form that Youk signed directly refers to such active euthanasia.
     In summary, defendant does not, nor could he, ask us to hold that his actions were legally justifiable because he simply helped Youk exercise his right to refuse medical care. Defendant does not, nor could he, ask us to hold that he was lawfully attempting to alleviate Youk's pain and suffering by any means other than causing his death. Defendant does not, nor could he, ask us to hold that his actions constituted a legal form of assisted suicide. In a nutshell, and using his own terminology, defendant asks us to legalize euthanasia.
     Defendant's argument that the people have reserved the right to euthanasia under the Ninth Amendment and its Michigan counterpart is basically formless. He states that a right to be free from inexorable pain and suffering "must be among" the rights protected by these two constitutional provisions. Further, he argues that states "should recognize such a right and give it force." Defendant does not cite a single case for this extraordinary request. . . .
     Defendant starts with the proposition that there is a right to privacy that is part of the liberty interest protected by the Fourteenth Amendment and its Michigan counterpart. He then asserts that the "intensely personal and private right of a patient to be free from intolerable and irremediable suffering" is either part of or similar to this privacy right. . . .He argues that if the administration of aggressive painkilling drugs is acceptable even if this may hasten death, then the "necessary and direct corollary of this position is that a person should not be forced to suffer unbearably.". . .
     It is one thing to assert, as defendant does, that there is a large body of case law suggesting that due process sometimes relies on the right to privacy to protect fundamental liberty interests. It is quite another thing, however, to conclude that the right to privacy encompasses euthanasia. As Justice Jackson once pointedly noted, the enduring nature of precedent gives judicial opinions a force all their own. 
     The principle then lies about like a loaded weapon . . . . Every repetition imbeds that principle more deeply in our law and thinking and expands it to new purposes. All who observe the work of courts are familiar with what Judge Cardozo described as "the tendency of a principle to expand itself to the limit of its logic."
     Defendant urges us to pick up the loaded weapon of the right to privacy cases. He asks us to use this weapon to resolve the situation faced by a person who suffers from literally unbearable pain and who wishes to end that pain by dying. As Justice O'Connor described it: "Death will be different for each of us. For many, the last days will be spent in physical pain and perhaps the despair that accompanies physical deterioration and a loss of control of basic bodily and mental functions." 
     We decline, however, to pick up this loaded weapon for three basic reasons. First, we can find no meaningful precedent for expanding the right to privacy to include a right to commit euthanasia so that an individual can be free from intolerable and irremediable suffering. To our knowledge, no court of last resort in this country has ever recognized such a right. Even in the assisted suicide cases dealing with an asserted "right to die," courts have steadfastly refused to expand the right to privacy to include the right to commit or receive euthanasia. . . .  
     Expanding the right to privacy would begin, as the steps in the progression of defendant's argument supporting voluntary euthanasia clearly indicate, the slide down the slippery slope toward euthanasia. No court of final jurisdiction has so expanded the right to privacy. Second, we conclude that by expanding the right to privacy as defendant suggests, we would, to a great extent, place the matter outside the arenas of public debate and legislative action. Whatever the life experiences or the policy preferences of the members of this Court might be, we must exercise the utmost care to assure, when asked to break new ground, that the liberty protected by the Due Process Clause of the Fourteenth Amendment not be subtly transformed into an expression of personal belief rather than an adherence to the rule of law. If society is to recognize a right to be free from intolerable and irremediable suffering, it should do so through the action of the majority of the legislature, whose role it is to set social policy, or by action of the people through ballot initiative. As the Michigan Supreme Court observed when analyzing the constitutionality of the prohibition of assisted suicide:
     We are keenly aware of the intense emotions and competing moral philosophies that characterize the present debate about suicide in general, and assisted suicide in particular. The issues do not lend themselves to simple answers. However, while the complexity of the matter does not permit us to avoid the critical constitutional questions, neither does it, under the guise of constitutional interpretation, permit us to expand the judicial powers of this Court, especially where the question clearly is a policy one that is appropriately left to the citizenry for resolution, either through its elected representatives or through a ballot initiative . . . 
     Third, we observe that by expanding the right of privacy to include a right to commit euthanasia in order to end intolerable and irremediable suffering we would inevitably involve the judiciary in deciding questions that are simply beyond its capacity. There is no court that can answer the question of how much pain, or perception of pain by a third party, is necessary before the suffering becomes intolerable and irremediable. The role of the courts is to serve neither as physicians nor as theologians. . . .Though other jurisdictions may not value all life equally, that is not true in Michigan. In a state that constitutionally prohibits putting to death the convicted perpetrator of even the most heinous of crimes, courts are simply unsuited to make that decision with respect to the innocent. No judge, no matter how learned, can assess the quality of human life and determine, as a matter of law, that putting an end to suffering is justifiable in one case while in another case it is not. This sort of subjective determination would be unavoidable if we begin, through judicial intervention, to decide who shall live and who shall die.
     Simply put, the courts are not free to create new rights out of whole cloth. We will not do so here. . . . The State has an interest in preserving and fostering the benefits that every human being may provide to the community—a community that thrives on the exchange of ideas, expressions of affection, shared memories, and humorous incidents, as well as on the material contributions that its members create and support. The value to others of a person's life is far too precious to allow the individual to claim a constitutional entitlement to complete autonomy in making a decision to end that life. . . .
     There may be little distinction between the intent of a terminally ill patient who decides to remove her life support and one who seeks the assistance of a doctor in ending her life; in both situations, the patient is seeking to hasten a certain, impending death. The doctor's intent might also be the same in prescribing lethal medication as it is in terminating life support. A doctor who fails to administer medical treatment to one who is dying from a disease could be doing so with an intent to harm or kill that patient. Conversely, a doctor who prescribes lethal medication does not necessarily intend the patient's death—rather that doctor may seek simply to ease the patient's suffering and to comply with her wishes. The illusory character of any differences in intent or causation is confirmed by the fact that the American Medical Association unequivocally endorses the practice of terminal sedation—the administration of sufficient dosages of pain-killing medication to terminally ill patients to protect them from excruciating pain even when it is clear that the time of death will be advanced. The purpose of terminal sedation is to ease the suffering of the patient and comply with her wishes, and the actual cause of death is the administration of heavy doses of lethal sedatives. The same intent and causation may exist when a doctor complies with a patient's request for lethal medication to hasten her death. . . .  
     This is the mercy killing argument—the argument for the "Dutch cure"—taken beyond the position of even its most extreme advocates. Under defendant's theory, if one who is not a doctor became convinced that one's dear friend was suffering from a painful, incurable disease and that the friend wished to die, one could at the request of that friend shoot him between the eyes with a .45 caliber pistol and not be guilty of murder. Indeed, under defendant's theory, the same result might well be obtained if one's friend were severely depressed, or perhaps simply unhappy with his lot in life. This is the slippery slope with a vengeance and we will not take a single step down it, into the abyss.
     We conclude by noting that the jury, no doubt influenced by the gritty realism of the videotapes defendant made as well as his flat statement of culpability in the 60 Minutes interview, convicted defendant of second-degree murder as well as delivery of a controlled substance. Defendant has on the record before us compared himself to Margaret Sanger, Susan B. Anthony, and Dr. Martin Luther King, Jr., all of whom risked imprisonment for their beliefs. How history will view defendant is a matter this Court can neither predict nor decide. Perhaps in the brave new world of defendant's "enlightened" society, acts such as the one he committed in this case will be excused. Still, we find it difficult to hypothesize a rule of law under which this might be so.
     We deal here, however, with the application of the law as it currently exists to the facts of this case. While defendant has carefully skirted the label of murder in his past actions, he cannot do so now. Justice Levin once stated that "[defendant] is not a murderer." Here, defendant in essence convicted himself of a murder he surely committed. . . .

(text taken directly from the opinion of the court)