Volokh conspiracy lawyer scrgruppen
from People v. PetersonDecided on Tuesday by the California Court of Appeals (Judge Victor Rodriguez, joined by Judges Alison Tutcher and Karen Fujisaki):
Defendant Bruce Peterson was convicted of stalking a politician and his family. The conviction was based on: (1) Peterson’s bizarre comments to the politician’s wife at a school bond issue open house event; (2) his repost on Facebook of a publicly available photo of the politician’s family with comments referencing the open house event and the politician’s children; and (3) his mailing of a rambling letter—critical of local politics and containing a check made payable “to any uncorrupt person”—to the politician’s wife. We are the opposite. On the specific facts of this case, we conclude that a reasonable listener would not have found Peterson’s speech or speech-related acts to constitute a credible threat of violence….
In February 2020, Cameron Lee Burks, a Lafayette City Council member and former Lafayette Mayor, and his wife, Julia Ackley, hosted an open house event at their home in support of a school bond measure. Burks “is hosting this event as a Lafayette resident and parent of school-age children,” the invitation stated. Peterson attended and had a “strange” and “stilted” conversation with Ackley, during which he noted that it had been 22 days since her birthday. Not knowing that her birthday had been made public on her Facebook page, she felt “anxious”, “uncomfortable” and “a little scared”. Her “spider sense” that something was wrong was due to his strange behavior and appearance; She described him as wearing a T-shirt with “children’s handprints all over it” and a pink fanny pack.
In March 2020, Peterson reposted to his Facebook page a photo from Ackley’s public Facebook page. The photo depicts Ackley and Burks and Ackley’s daughters. “Politician’s family. I’ve never met the two little girls,” Peterson’s post read. In the comments, Peterson asked, “Where [Burks and Ackley] “Hide the Girls” during the open house event. “They live near Burton Valley School,” he mused. “Given that the politician, Cameron Birx, has a different name from his wife, I wonder what their daughters’ last name is?” He also described Birx as “one of the mayors.” [Sic.] Who abdicated his throne but remained in power, in Lafayette, California. City Council.” One of Birx’s colleagues sent him a screenshot of Peterson’s Facebook post. Birx was “disturbed” and “immediately felt” that Peterson “could pose a threat” to his wife and daughters. But Ackley acknowledged that the photo Peterson reposted was public. Available on her Facebook page, as well as her date of birth and other photos of Burks and her daughters.
In April 2020, Ackley received a “confusing” letter and a check in the mail from Peterson. On the front of the check was written: “Pay to the order of any person who is not corrupt.” The back of the check read: “Thank you for hosting the event on February 3, 2020. I don’t remember the names of your two daughters. Are they? […] And […] Or Molly and Harry?” Molly and Harry are the names of Ackley’s parents, but she admitted that the names and photos of her parents were publicly available at the time.
The letter was addressed to “Julia, two unidentified daughters, and their unnamed pets.” The scattered letter served as a screed against local politics. For example, Peterson said he has a “long list of liars,” and Burks’ Facebook account tells me “several people: deceivers, satanists, liars, liars from hell, are his friends. Oh! They lied about me. They didn’t do it.” He lied about it.” He continued, “BTW. I have despised the Lafayette Police Department, since 1966. Before any of you were born. wow! I’ve only despised the Little League of Lafayette: Bad Totalitarian Jerks, since about 1998? How can a father of two do that? “Girls, he lives with himself, and is a puppet for those evil totalitarian fools from hell? They are above all the laws, in this corrupt little town.”
Although Ackley thought the letter “didn’t make a lot of sense” and was “confusingly written,” she was “really afraid” to mention it by name, as well as the names of her daughters and parents. She also felt “powerless…to protect” her children. The thought that something could happen to her children filled her with “a feeling of insecurity” and “doom.” For his part, Birx felt “sick.” [his] Stomach” and “fear” when he read the letter.
The defense called several witnesses who testified that although Peterson distrusted the government and politicians, he was not violent. They described him as an “extraordinary” person who was prone to loud statements and exaggerated talk — such as when he said he “could have strangled the foul creature,” referring to a former city supervisor — but there was “[a]”There is certainly no persecution or violence of any kind.”
After a jury trial, Peterson was found guilty of stalking and was sentenced to two years of probation, with one year of home confinement.
California’s relevant stalking law requires proof that the speech represented a credible threat, and the court concluded that this was absent here:
We conclude that, as a matter of law, no reasonable person would understand that Peterson’s speech and publication, whether taken separately or together, constitute a credible threat. Peterson’s comment to Ackley about the exact number of days that had passed since her birthday was certainly odd, and she was no doubt alarmed by his remark given that she was unaware that her birthday was publicly available on her Facebook page. But Peterson’s mere reference to her birthday — regardless of whether the information can be found on Ackley’s Facebook page — cannot be considered a “serious expression of intent to commit an act of unlawful violence.” Peterson’s observation falls short of this; Deviance and disgust are not a criminal offense.
Peterson’s Facebook posts and comments are no better. As noted, he reposted a photo of Ackley, Burks, and Ackley’s daughters — a photo that was publicly available on Ackley’s Facebook page. Peterson’s post said: “[a] “Politician’s family.” In the comments on the post, he questioned the children’s absence from the open house event. He also questioned the children’s last name since their parents did not have the same last name as each other. “He described Burks as having ‘abandoned his throne’ as mayor but remained in city Council. Peterson’s comments about the children’s whereabouts and last names were undoubtedly upsetting and upsetting to Burks and Ackley. But context is crucial. The post and comments were made in the context of a school bond measure that Burks and Ackley supported as parents of “school-age children.”
In addition, the language used in the political arena “is often derogatory, offensive, and inaccurate.” Despite the disturbing and even disturbing nature of Peterson’s posts and comments, the school bond measure at the center of Peterson’s letter was undoubtedly a matter of public interest….
The references to Birks and Ackley’s daughters were certainly disturbing, but no reasonable person would believe, as the prosecutor points out, that they reflected efforts to “identify, locate and contact Birks’ teenage daughters.” Direct threats of violence are not necessary, but it takes more than just mentioning children. (For example, People against Falk (Cal. App. 1997) [defendant’s desire to spend eternity with victim, coupled with his stated proficiency with a rifle, and gift of black roses suggested murder-suicide]; In re Ernesto H. (Cal. App. 2004) [statement, “‘Yell at me again and see what happens,'” along with a step toward victim and threatening stance was a true threat]; People v. Hallgren (Cal. App. 1996) [statements that victim “would be sorry she had been rude to him,” “she would pay for her rudeness,” and he was going to “‘fix her'” or “‘fix this'” were threats].) Nothing in Peterson’s comments or posting suggests even an implicit threat to children’s safety.
Finally, there is the letter Peterson mailed to Ackley, in which he opined that “100% of the politicians and their administrators, who are supposed to represent me, are corrupt.” The enclosed check was made out to “anyone who is not corrupt”, and the back of the check read “Thank you for hosting the event on February 3, 2020. I don’t remember the names of your two daughters. Are they? […] And […] Or Molly and Harry?” The prosecutor acknowledged the letter and verified “political activities that Birx criticized” and was intended to “influence Birx politically.” The context surrounding the mailing of the letter “failed.”[s] To show that, as a threat, it was clear enough to convey “an intent to commit an act of unlawful violence.” The prosecutor also insists that the “subtext” of these communications was that because he was “outraged by Burks’ political involvement,” Peterson was “attempting to identify, locate, and contact Burks’ teenage daughters.” We cannot discern such “subtext”. …
Represented by Mark J. ZILVERSMIT Defendant.
