High Court Spurns Case Over Reckless Threats, Irking Thomas

A polling site in Wichita, Kansas, during 2017 elections. (Courthouse News photo/Jon Parton)

WASHINGTON (CN) — Justice Clarence Thomas called out his colleagues Monday for turning down a case where threat convictions were overturned because they lacked an intent to intimidate.

Both convictions here were overturned in Kansas. In one case, Timothy Boettger told the son of a police detective that he “was going to end up finding [his] dad in a ditch.” Meanwhile, Ryan Johnson told his mother: “I hate you, Mom, you fucking bitch. I wish you would die, but don’t worry about it because I’m going to help you get there. I’m going to fucking kill your ass. I hate what you do to me.”

Relying on a 2003 case called Virginia v. Black, the top court in Kansas found that such “reckless threats” are protected by the First Amendment.

In Black, the Supreme Court upheld a lower court ruling that found it illegal to publicly burn a cross with intent to intimidate. 

The justices refused to grant Kansas a writ of certiorari — denying the case without comment, as is their custom — but Thomas argued in a 6-page dissent that the court should have intervened to settle division over Black’s interpretation.

“Sixteen states and the District of Columbia filed an amicus brief representing that numerous statutes would be subject to challenge under the reasoning of the Supreme Court of Kansas,” Thomas wrote. “If state high courts hold even a fraction of these statutes unconstitutional, we will have no choice but to intervene. I would do so now to address the problem caused by our language in Black.”

Neither the Kansas Attorney General’s Office nor Sidley Austin attorney Jeffrey Green, representing Boettger and Johnson, have returned requests for comment. 

Thomas noted that there were more than a dozen states and territories, through the end of the Civil War, with laws that did not protect reckless threats under the First Amendment.

“The prevalence of statutes from the founding through Reconstruction that did not require intent to intimidate provides strong evidence of the meaning of the freedom of speech protected by the Fourteenth Amendment,” Thomas wrote.

In addition to the petition from Kansas, dozens of cases were denied certiorari in Monday’s order list.

Among them was an excessive-force case where two police deputies, Aaron Miner and Dennis Laurance, of Ada County, Idaho, were sued by Steven Picatti, a 2014 arrestee.

Miner and Laurance initially quashed Picatti’s case by invoking the doctrine of qualified immunity, but the state Supreme Court ruled that the officers’ immunity was an issue that the jury should decide.

In recent weeks, as protests across the country have swelled over the killings of unarmed black Americans, the doctrine shielding police from lawsuits has been targeted by protesters as one of the systemic injustices that must be reformed.

Another notable case the Supreme Court rejected without comment on Monday involves the government’s parceling out of property for the formerly landless United Keetoowah Band of Cherokee.

Last year, the 10th Circuit lifted an injunction allowing the government to proceed with granting land to the United Keetoowah Band, at times referred to as a “former tribe” or an “‘error’ in the federal registry” prior to the victory securing their land rights. 

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