Washington appeals court: Law prohibiting intimidation of public servant overly broad, violates First Amendment
January 16, 2020 by David L. Hudson Jr.
Washington’s law prohibiting the intimidation of a public servant violates the First Amendment, a state appeals court has ruled. The appeals court reasoned that the law prohibits more than true threats and sweeps up a substantial amount of protected speech.
Jeremy Dawley, a former member of the United States Navy discharged with a traumatic brain injury, often calls up the nonemergency line in Island County and complains about issues he sees, such as illegally parked cars, traffic issues, and other problems.
Problems arose when Dawley had an unpleasant interaction with a police officer. Dawley had called the non-emergency line over two illegally parked cars. When the officer arrived, he asked if Dawley might carry a notebook, note all the violations, and then call to report all of them at one time.
Man’s several comments and phone call result in criminal charges of intimidation, harassment
Dawley didn’t like that comment and told the officer not to get out of his patrol car or his dog would attack him. The officer then responded that if Dawley’s dog attacked him, he would shoot the dog. Dawley then said he knew the laws of self-defense and that if the officer shot his dog, he would stab him. Another officer then responded: “If you stab my partner, I’m going to have to shoot you.”
Dawley then called the Oak Harbor Chief of Police, Kevin Dresker, and left him a voice mail complaining about his treatment by the police officers.
He stated in part: “This is Jeremy Dawley again. I’m not getting a phone call back from you. So do I need to look up your address and literally show up at your house cause I’m that not afraid of you, and I’m that pissed off at your police officer.”
Dawley also called Nikki Esparza, the Oak Harbor City attorney, making several comments. Here are some:
I really think something needs to be done about this. … So, I mean, it’s completely up to you. But if you guys aren’t willing to draw the line, like I’m gonna protect myself. I’m not saying I’m gonna come after you guys cause that’s – I’m not a murderer, I’m a law-abiding citizen.
And what you did to me as a city is to make me feel completely unsafe, not once but twice now. Your officers have put me into killing range with a firearm. A firearm, ma’am! What happens if I come to your house and I put you into killing range with a firearm, right? You’d be upset.
Dawley then filed a public records request at the Oak Harbor Police Department, asking for records on “violent offenses that resulted in physical harm and offenders to include sexual assaults.” Chief Dresker arrested Dawley after Dawley filed the public record request.
Jury finds man guilty of intimidating public service and telephone harassment
The state charged Dawley with three counts of intimidating a public servant and one count of telephone harassment. A jury found Dawley guilty of two counts of intimidating a public servant and the telephone harassment count. The jury was instructed about the intimidating a public servant law but was not instructed that the law applied only to true threats, which involve a serious expression of an intent to harm a person.
On appeal, Dawley challenged the convictions for intimidating a public servant. The Washington Court of Appeals reversed his convictions in its December 30, 2019, decision in State v. Dawley.
The intimidating a public servant law provides: “A person is guilty of intimidating a public servant if, by the use of a threat, he or she attempts to influence a public servant’s vote, opinion, decision, or other official action as a public servant.”
Dawley asserted that the law violated the First Amendment because it was overbroad and prohibited a lot more than just true threats. The state appeals court agreed.
Appeals court said intimidation law sweeps up ‘substantial amount of protected speech’
The court noted that the law did prohibit true threats but that it also “implicates protected speech because it includes threats to a person’s business, financial condition, or personal relationships.” The appeals court recognized that the law furthered the government’s compelling interests to protect public servants from threats and ensuring a fair and independent decision-making process.
However, the appeals court ruled that the law was not narrowly drawn and “sweeps up a substantial amount of protected speech.”
The appeals court concluded that “the only constitutionally permissible limiting construction to save the intimidating a public servant statute when the jury is instructed on the definition of threat … is to limit the statute to true threats alone.”
Because the jury was not instructed that the intimidating a public servant law was limited to only true threats, the appeals court reversed his convictions.
David L. Hudson, Jr. is a law professor at Belmont who publishes widely on First Amendment topics. He is the author of a 12-lecture audio course on the First Amendment entitled Freedom of Speech: Understanding the First Amendment (Now You Know Media, 2018). He also is the author of many First Amendment books, including The First Amendment: Freedom of Speech (Thomson Reuters, 2012) and Freedom of Speech: Documents Decoded (ABC-CLIO, 2017).