Travis Seals v. Brandon McBee
Opinion
*590 Louisiana Revised Statutes § 14:122 criminalizes "the use of violence, force, or threats" on any public officer or employee with the intent to influence the officer's conduct in relation to his position. Travis Seals threatened police when arrested; he facially challenges Section 14:122 as unconstitutionally overbroad in violation of the First Amendment. The district court agreed with Seals. Because the meaning of "threat" is broad enough to sweep in threats to take lawful, peaceful actions-such as threats to sue a police officer or challenge an incumbent officeholder- Section 14:122 is unconstitutionally overbroad. We affirm the judgment invalidating it.
I.
In December 2014, Seals and Ali Bergeron were arrested for conduct not specifically reflected in the record. Any charge was ultimately dismissed or refused by the district attorney ("DA"). It appears that a neighbor accused Seals and Bergeron of aggravated assault, and the police responded. According to Seals, he was pepper-sprayed and verbally objected to the arrest, threatening "to make lawful complaints" about the officers' conduct. According to the officers, Seals violently resisted and "repeatedly made threats of physical harm." 1 Ultimately, those disputes are immaterial.
Seals and Bergeron filed a complaint against the arresting officer-Brandon McBee-in September 2016, claiming malicious prosecution, conspiracy, and a First Amendment violation. The district court permitted Louisiana to intervene to defend the constitutionality of Section 14:122. Plaintiffs then moved for partial summary judgment on their First Amendment claim, alleging that Section 14:122 is facially invalid as overbroad and content-based. Louisiana cross-moved for summary judgment, replying that plaintiffs lack standing to challenge Section 14:122 because they seek only injunctive relief but face no threat of future injury because no charges have yet been brought. And even with standing, Louisiana insists that Section 14:122 prohibits only unprotected speech, such as true threats or extortion.
The district court held a hearing to sort through standing. Plaintiffs admitted that the DA had stated he had no intention of charging them at that time. But plaintiffs maintained the DA could still prosecute Seals. Louisiana reiterated that the DA has not brought charges but has never disputed that Seals made threats, was arrested, and could be prosecuted under Section 14:122 until four years after the arrest, which is December 2019. 2
The district court granted plaintiffs' motion, finding standing and declaring Section 14:122 overbroad as applying to constitutionally protected threats. The court enjoined Louisiana from enforcing Section 14:122 's prohibition on "threats." Louisiana, through its attorney general, appeals.
II.
The core case-or-controversy requirement of Article III establishes an "irreducible
*591
constitutional minimum of standing."
3
Lujan v. Defs. of Wildlife
,
Moreover, because plaintiffs seek injunctive relief, they must show that "there is a real and immediate threat of repeated injury."
City of L.A. v. Lyons
,
Finally, "each element of Article III standing 'must be supported in the same way as any other matter on which the plaintiff bears the burden of proof,' " with the same evidentiary requirements of that stage of litigation.
Bennett v. Spear
,
Plaintiffs repeatedly assert that the requirements of standing are relaxed in the First Amendment context. That is true, but only as relating to the various court-imposed prudential requirements of standing.
See
Sec. of State of Md. v. Joseph H. Munson Co.
,
Seals was arrested in connection with making some form of threats to the police-thus he appears to have violated Section 14:122. Louisiana concedes that Seals was so arrested and is legally subject to prosecution until December 2019. And both parties agree that "a credible threat of prosecution" is sufficient for standing. 5 Plaintiffs "should not be required to await and undergo a criminal prosecution as the sole means of seeking relief." 6
*592 Louisiana contends, however, that there is no threat of future injury because-as plaintiffs admit-the D.A. has not charged Seals and has expressly disavowed bringing such charges. 7 Thus, the state urges there is no threat of future prosecution. 8
Whether the government disavows prosecution is a factor in finding a credible threat of prosecution.
9
Yet that is only one factor among many-for example, in
Humanitarian Law Project
, 561 U.S. at 15-16,
Seals's position mirrors that of the plaintiffs in United Farm Workers . He already bet the farm. And when he violated Section 14:122, he was arrested. Louisiana has disavowed prosecution but concedes that Seals actually violated the statute and is legally subject to prosecution. 11 Moreover, Louisiana has introduced evidence of other enforcement actions that are currently being pursued. Viewed alongside a review of Louisiana caselaw, that evidence shows that Section 14:122 is not a mere paper tiger but has a real history of enforcement. Because *593 the scales are at least as balanced as in United Farm Workers , Seals, too, has standing to challenge Section 14:122.
This conclusion reflects the fundamental purpose of standing: "to ensure ... the federal courts are devoted to those disputes in which the parties have a concrete stake."
Friends of the Earth, Inc. v. Laidlaw Envtl. Servs. (TOC), Inc.
,
III.
We turn to whether Section 14:122 violates the First Amendment. To show overbreadth, plaintiffs must establish that Section 14:122 encompasses a substantial number of unconstitutional applications "judged in relation to the statute's plainly legitimate sweep."
14
The "first step in overbreadth analysis is to construe the challenged statute."
Stevens
, 559 U.S. at 474,
A.
The parties dispute the reach of Section 14:122. We start with the text. The statute criminalizes "public intimidation," defined as "the use of violence, force, or threats upon [a specified list of persons, including any public officer or public employee] with the intent to influence his conduct in relation to his position, employment, or duty." (Emphasis added.) On its face, the statute is extremely broad. The definition of "threat" generally encompasses any "statement of an intention to inflict pain, injury, damage, or other hostile action on someone *594 in retribution for something done or not done." 15 That definition easily covers threats to call your lawyer if the police unlawfully search your house or to complain to a DMV manager if your paperwork is processed wrongly.
The state, however, contends that Section 14:122 requires a "corrupt intent," which it defines as the intent to obtain something the speaker is not entitled to as a matter of right. According to Louisiana, that gloss-although found nowhere in the text-has been applied by its state courts. And as Louisiana notes, a gloss placed on a state statute by that state's courts is "conclusive on us." 16
We accept the gloss proposed by Louisiana. Although not explicit, Louisiana caselaw strongly suggests that Section 14:122 requires a corrupt intent, as defined by Louisiana. In
State v. Daniels
,
Then, in
State v. Smith
,
Thus, Louisiana caselaw can easily be read to say that Section 14:122 requires the same corrupt intent that Louisiana's courts have read into its public-bribery statute. And nothing in our review of Louisiana caselaw is inconsistent with that requirement. 18 Accordingly, we assume, but *595 only for purposes of this appeal, that Section 14:122 requires a corrupt intent, defined as the intent to obtain something that the speaker is not entitled to as a matter of right.
Yet we can narrow Section 14:122 no further. According to the state, we should construe the statute to apply only to true threats, i.e. "a serious expression of an intent to commit an act of unlawful violence" toward specific persons. 19 There are several reasons why we cannot do so. First, the definition of "threat" is broader than true threats: any "statement of an intention to inflict pain, injury, damage , or other hostile action on someone in retribution for something done or not done." 20 Second, the reporter's comments to Section 14:122 provide that the statute "should include threats of harm or injury to the character of the person threatened as well as actual or threatened physical violence." LA. R.S. § 14:122, cmt. Thus, the section is not "readily susceptible" to such a limiting construction. 21
Finally, Louisiana's reliance on its caselaw proves to be a double-edged sword. As plaintiffs note, the Louisiana Court of Appeals has upheld the conviction of a defendant who violated Section 14:122 by threatening "to sue" an officer and "get [his] job" if the officer arrested him.
See
State v. Mouton
,
It follows that, properly understood, Section 14:122 applies to any threat meant to influence a public official or employee, in the course of his duties, to obtain something the speaker is not entitled to as a matter of right. But so construed, the statute reaches both true threats-such as "don't arrest me or I'll hit you"-and threats to take wholly lawful actions-such as "don't arrest me or I'll sue you." In both those examples, the speaker may be legally subject to arrest and is trying to influence a police officer in the course of his duties. Thus, Section 14:122 makes both threats a criminal act.
B.
Plaintiffs insist that Section 14:122, so construed, is actually a content-based restriction on speech, so we should immediately apply strict scrutiny.
See
Reed v. Town of Gilbert
, --- U.S. ----,
It is true that, by criminalizing "threats," the statute regulates content. And, as Louisiana rightly contends, Section 14:122 regulates unprotected content, such as true threats.
See
Black
, 538 U.S. at 359,
That is not to say that a state has
carte blanche
when dealing with unprotected speech. It may not, for example, regulate only certain kinds of unprotected content based on a criterion that involves protected content-e.g., a law prohibiting only true threats involving particular political ideas.
See
id.
at 385-86,
Section 14:122 does not implicate the former limitation. It regulates threats, pure and simple.
23
And by targeting unprotected
*597
speech, such as true threats or extortion, Section 14:122 easily has at least some applications that are constitutional.
Cf.
Stevens
, 559 U.S. at 472-73,
C.
Evaluating an overbreadth challenge requires exploring a statute's constitutional and unconstitutional applications. According to Louisiana, Section 14:122 has
no
unconstitutional applications because it proscribes only unprotected speech. To be sure, it covers a large swath of unprotected speech, including true threats
24
and core criminal speech, such as extortion
25
and threats to engage in truly defamatory speech made with actual malice.
26
But the statute plainly reaches further. As explained above, Section 14:122 includes threats to sue an arresting officer or even to run against an incumbent unless he votes for a favored bill.
Cf.
Mouton
,
Such threats are constitutionally protected. The decision in
NAACP v. Claiborne Hardware Co.
,
Louisiana reminds us that a statute may be struck as overbroad only if its overbreadth is "
substantial
, not only in an absolute sense, but also relative to the statute's plainly legitimate sweep."
Williams
,
A survey of analogous caselaw supports that conclusion. In
City of Houston v. Hill
,
Similarly, in
Wilson
, 405 U.S. at 519, 528,
Section 14:122 is at least as overbroad as the laws that were found to be unconstitutional in those cases. It covers the kinds of constitutionally protected speech identified in
Claiborne Hardware
,
D.
Louisiana offers more replies but none with merit. We examine each.
1.
Louisiana claims that plaintiffs have failed to
prove
there have been unconstitutional applications of Section 14:122 and that plaintiffs rely only on hypotheticals and pure speculation. But in the first place, plaintiffs cite
Mouton
,
2.
The state contends that Section 14:122 is similar to statutes upheld in
*599
CISPES (Committee in Solidarity with the People of El Salvador) v. F.B.I.
,
In
CISPES
,
Neither is
Hicks
availing. There, defendants were convicted under
Moreover, in
Hicks
,
The same cannot be said for Section 14:122. The state has no interest in preventing its citizens from threatening boycotts unless they are heard, rallies until a politician resigns, or lawsuits if they are arrested.
Cf.
Claiborne Hardware
,
3.
Louisiana maintains that Section 14:122 is a time, place, and manner restriction. That assertion was not made before the district court, so it is waived.
See
Martco Ltd. P'ship v. Wellons, Inc.
,
The state relies on
Hicks
,
A fortiori
, Section 14:122 is not a time, place, and manner restriction. And not only does it encompass unprotected content, it reaches far beyond those constitutional limitations to target threats to complain to a school principal if one gets a bad grade, threats to run against an incumbent unless he votes your way on a bill, or threats to call the media if the police point a gun at you. Those kinds of threats are part of the core First Amendment rights "by which we distinguish [our] free nation from a police state."
Hill
,
The judgment is AFFIRMED.
Seals also avers that he was "charged" by the police with violating Section 14:122. Yet Louisiana maintains that police officers don't charge suspects; DAs do that. See La. Code Crim. P. art. 61 ; La. Const. art. V, § 26 (B) (both providing that DAs have the power to charge).
Specifically, the court asked, "So there is nothing to preclude the District Attorney from bringing these charges[?]" To which Louisiana's attorney replied, "True. That is-there is that speculative."
Plaintiffs suggest that, because Louisiana intervened only to defend the constitutionality of Section 14:122, it cannot challenge their standing. But standing is jurisdictional and should be addressed "when there exists a significant question about it."
K.P. v. LeBlanc
,
Contrary to plaintiffs' assertion in a supplemental letter, this case was decided on summary judgment. Plaintiffs have no authority to support their position that, even after being granted summary judgment, their standing is reviewed on the pleadings.
Holder v. Humanitarian Law Project
,
According to the complaint, Seals received a nolle prosequi -from which plaintiffs urged the court to infer a bona fide termination as required for their malicious prosecution claim. That averment is of little significance, however, because a nolle prosequi is not a bar to subsequent prosecution. See La. Code. Crim. P. art. 693.
Louisiana proffers that the Tenth Circuit has already decided this question. It has not. In both cases cited by Louisiana, the Tenth Circuit was faced with a plaintiff who was arrested and charged but whose charges were either formally dismissed or dropped.
See
Ward v. Utah
,
See, e.g.
,
Humanitarian Law Project
,
Specifically, the Court relied on the fact that the government had "charged about 150 persons with violating" the statute at issue.
Humanitarian Law Project
,
Cf.
PeTA, People for the Ethical Treatment of Animals v. Rasmussen
,
Humanitarian Law Project
,
Plaintiffs raise another theory of standing: that their future speech is chilled by Section 14:122.
Compare
Ctr. for Individual Freedom v. Carmouche
,
United States v. Stevens
,
Threat
, Oxford Dictionaries (Online ed.), https://en.oxforddictionaries.com/definition/threat;
see also Threat
, Merriam-Webster (Online ed.), https://www.merriam-webster.com/dictionary/threat (similar);
cf. Threat
, Black's Law Dictionary 1708 (10th ed. 2014) (similar).
Accord
Gooding v. Wilson
,
Terminiello v. City of Chicago
,
See also
State v. Dauzat
,
See, e.g.
,
State v. Godfrey
,
See
Virginia v. Black
,
Threat , Oxford Dictionaries (Online ed.), https://en.oxforddictionaries.com/definition/threat (emphases added).
City of El Cenizo v. Texas
,
Thus, in
R.A.V.
,
Similar to
R.A.V.
is
Reed
. There,
The fact that the law prohibits only threats against public officials or employees is of no consequence. Content-based regulations are permissible "[w]hen the basis for the content discrimination consists entirely of the very reason the entire class of speech at issue is proscribable."
Black
,
See
Black
,
Core criminal speech such as extortion, bribery, or perjury has no First Amendment protection.
See
United States v. Quinn
,
See
New York Times Co. v. Sullivan
,
See
Terminiello
,
Section 1472 has been succeeded by
Cf.
CISPES
,
Reference
- Full Case Name
- Travis SEALS; Ali Bergeron, Plaintiffs-Appellees, v. Brandon MCBEE; Et Al., Defendants, Jeff Landry, Attorney General, State of Louisiana, Intervenor-Appellant.
- Cited By
- 29 cases
- Status
- Published