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First Amendment — Speech — “True Threats.” Stalking and extortion — sufficiency of the evidence

State v. James D. Hills, 2012AP1901-CR, District 4, 4/11/13; court of appeals decision (not recommended for publication); case activity

Hills sent letters and made at least one phone call to an assistant city attorney (ACA) who, he believed, had wrongfully prosecuted him under the city’s disorderly conduct ordinance. In those communications he berated the ACA (calling her incompetent, corrupt, dishonest, deceitful, worthless, and worse), accused her of prosecuting him with perjured testimony so she could collect money for the city, demanded she “correct” the matter or he would seek “justice,” and also demanded the return of his forfeiture ($429) or he would take matters into his own hands. He also complained to OLR and the AG and governor. (¶¶2-14). He was convicted of stalking and extortion for this conduct. (¶1).

First Amendment — Speech — “True Threats”

The court rejects Hills’s argument that, as a matter of law, his statements were not “true threats,” but were instead protected speech under the First Amendment because they were attempts to petition government officials to correct what he believed to be an injustice. (¶¶28-29). The test for “true threats” is set out in State v. Perkins, 2001 WI 46, ¶29, 243 Wis. 2d 141, 626 N.W.2d 762: “A true threat is a statement that a speaker would reasonably foresee that a listener would reasonably interpret as a serious expression of a purpose to inflict harm, as distinguished from hyperbole, jest, innocuous talk, expressions of political views, or other similarly protected speech.” It is an objective test and considers the totality of the circumstances. Id. Applying that test here, the court rejects Hills’s claim:

¶33      First, the jury could reasonably infer from the evidence that the ACA had reason to believe that Hills had a propensity for violence. After all, she had prosecuted him for shoving a child, and Hills’ various letters and messages made clear that Hills was an angry and unreasonable person.

¶34      Second, the threatening tone of Hills’ messages was repeated over time.  His last two letters showed that he was extremely angry at the ACA and that he was both frustrated with the legal system and confident that it would not bring the ACA to justice.

¶35      Third, Hills’ expressed anger is out of proportion to the wrong he alleges was committed against him.  He compared it, for example, to being raped.  Hills plainly stated in his last letter that, if the ACA did not comply with his demands, he would not “recover” and would never relent.  The very fact that Hills was obsessed with the alleged wrong and refused to let it go suggests to a reasonable person that Hills might take action out of proportion to the alleged wrong.

¶36      Finally, although Hills did not ever directly state that he planned to personally physically harm the ACA, his statements nonetheless carried that message.  He described the ACA as “sinful” and a “worthless piece of shit”—a person the world would be better off without.

¶37      Hills argues that his statements about harm to the ACA are obviously hyperbole because they describe acts that are plainly unrealistic, such as placing her “in stocks,” whipping her, and hanging her until she is dead.  But it is precisely the over-the-top nature of such comments that suggests to a reasonable person that Hills was willing to engage in some type of harmful action.

The court also rejects Hills’s claim that the circuit court erred by failing to accept his proposed addition to the jury instructions, which would have explained that the state has the burden to prove his conduct was not done in the exercise of his constitutional rights. (¶40). Hills’s proposed language not only failed to define “true threat” for the jury (¶41), but, more fundamentally, both offenses already require proof of a “true threat”:

¶43      To prove stalking, the State had to prove beyond a reasonable doubt that Hills’ intentional course of conduct would have caused a reasonable person to suffer serious emotional distress or to fear bodily injury or death to herself or to a member of her family.  This language, of course, aptly describes a “true threat” that does not enjoy constitutional protection.

¶44      To prove extortion, the State was similarly required to prove that the conduct was a “true threat.”  The jury was instructed that it needed to find, beyond a reasonable doubt, that Hills actually threatened injury to the person of the ACA.

Sufficiency of the evidence

In a fact-intensive discussion that won’t be summarized here, the court also finds the evidence was sufficient to support Hills’s convictions on both the stalking and extortion charges. (¶¶16-27).

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