For more than 40 years, the U.S. Supreme Court has made it perfectly clear that what it calls “true threats” to harm another person are not protected speech under the First Amendment.
That means if someone threatens to beat up, kill, or otherwise harm another individual, the threat maker can be prosecuted. But the courts have been divided when it comes to determining if ambiguous, sort-of threats—like “You’ll get yours”—rise to the level of protected speech, and safe from prosecution.
In making those calls, the courts have been consistant in cautioning that laws prohibiting threats cannot infringe on speech that is protected, including “political hyperbole,” “mere jokes,” or unpleasantly sharp attacks, all of which fall short of true threats.
Distinguishing harsh, even offensive comments from true threats has put appellate courts in the position of serving as referees. Lawyers who focus on First Amendment law say when a conviction for threatening does go to appeal, the Connecticut Appellate Court typically finds there was ample evidence presented at trial to prove a threat was made.
In a recent case, the state Supreme Court took a closer look at the evidence behind a threat-related charge against Stephen Krijger, a Waterford homeowner. Krijger was convicted in 2008 by a New London jury of threatening Nicholas Kepple, the Waterford town attorney, during a zoning dispute, but a unanimous Supreme Court overturned the conviction.
“It’s a significant decision, even though it doesn’t change the law,” said Dan Klau, an appellate and First Amendment litigator with McElroy, Deutsch, Mulvaney & Carpenter in Hartford. Although he wasn’t involved in the case, Klau followed the outcome, because the court made a rare decision to overturn a jury’s findings on the First Amendment issue.
“What makes the opinion noteworthy,” Klau said, “is not its discussion of the law, which was already clear and well-established. It was the court’s willingness to view the evidence in the light most favorable to sustaining the jury’s verdict [as required under the law], yet still hold that the evidence did not support the jury’s conclusion that the defendant had made a true threat against the victim.”
Krijger had been battling with zoning officials for several years. At the time of the threatening incident, according to court records, Krijger was angry he was facing fines of $6,000 for having dumped debris on his property. That’s when Krijger made an off-color comment to Kepple about his son, who had been critically injured in a car accident some time earlier.
“More of what happened to your son is going to happen to you,” Krijger told Kepple. “And I’m going to be there to watch.”
The justices agreed that the comments Krijger made to Kepple were offensive, but they did not rise to the point of being threats beyond First Amendment protection.
According to the court, the state failed to meet its legal burden to prove that “a reasonable listener, familiar with the entire factual context of the statement” would find the comments to be a credible threat. The decision, to be officially released Sept. 2 and authored by Justice Richard Palmer, took the position that some statements, however “offensive or repugnant” as they might be, cannot be considered threats under state or federal law.
“Courts have held that when a communication contains language which is equally susceptible to two interpretations, one threatening, and the other non-threatening, the government carries the burden of presenting evidence serving to remove that ambiguity,” Palmer wrote. “In the absence of such proof, the trial court must direct a verdict of acquittal.”
An example of angry speech that rose to a threat? The Supreme Court ruling cited a 2006 Appellate Court opinion in a case that followed a Bridgeport man’s profanity-laced tirade against probation officers. The court’s decision to uphold Gregory Gaymon’s breach of peace conviction was based on the finding that a true threat was made when Gaymon swore and spat at officers and said he would “kick their … ass.”
In its latest decision, the Supreme Court reversed the conviction of Krijger, who has already served a five-month sentence in jail. The justices sent the case back to Superior Court Judge Matthew Frechette for a judgment of acquittal.
Senior Assistant Public Defender Richard Condon Jr., who represented Krijger in his appeal to the Supreme Court, said the conviction will be removed from his client’s record. “I’m very happy, and my client is very happy that the proper result was reached,” Condon said.
When he made oral arguments before the justices last October, Condon focused on the statement his client made as being “an angry outburst…It was a hyperbolic statement, and nothing more.”
Krijger had been involved in long-standing legal dispute with the town over various zoning violations and debris on his property. In 2003, Krijger paid the town $32,000, including $25,000 in cleanup fees and the rest for unpaid taxes and interest. Then on July 21, 2008, during a court hearing over similar violations, he learned that town officials were seeking more than $6,000 in fines. That set him off, Condon said.
After the hearing in New London Superior Court, Krijger followed Kepple outside, and the two men exchanged heated words. According to a statement Kepple later gave to police, Krijger appeared angry. “His face was red and there was saliva in the corner of his mouth,” Kepple said.
Krijger then made the remark about Kepples’ son, a former police officer who had been left severely injured from a car accident that was widely publicized. The town attorney didn’t report the exchange until two days later. And when he did go to police, Kepple said he was “terrified by Krijger.”
At his trial, Krijger was represented by then-attorney John Newsome, who is now a Superior Court Judge. Krijger was convicted of second-degree threatening and second-degree breach of peace and was sentenced to serve time in jail by Frechette.
On appeal, Condon argued the evidence had been insufficient to establish that the Krijger had made true threats against Kepple, rather than “excited utterances” of protected speech. The Appellate Court rejected that argument, along with the defendant’s contention that Kepple’s delay in reporting the incident was proof that he did not actually feel threatened.
In spite of that rejection, in a lengthy dissent, state Appellate Court Judge Douglas Lavine opined that Krijger’s remarks to the town attorney were “caustic, crude, venomous” and “vicious,” but not criminal.
“A true threat is more than a vaguely menacing statement or hyperbole or venting,” Lavine wrote. While the law requires that true threats include statements that are “explicit and definite” in nature of a specific threat, Lavine said, Krijger’s words “were vague and ambiguous.”
The Supreme Court justices decision referred to Lavine’s dissent several times in its unanimous ruling.
In an interview, Condon said the correct outcome was reached. “The Supreme Court takes First Amendment matters very seriously, and this was one where someone was wrongly convicted,” Condon said. “You can always have an angry outburst that may hurt someone’s feelings, but if from a reasonable person’s viewpoint the comment itself is ambiguous and the surrounding circumstances do not support a reasonable interpretation that the individual is going to actually harm you, then it is protected.”