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Does Counterman Make it Impossible to Prosecute Terrorizing Under Maine’s Current Statute?

Does Counterman Make it Impossible to Prosecute Terrorizing Under Maine’s Current Statute?

Posted by Ed Folsom, December 14, 2023.

Warning:  As the result of a U.S. Supreme Court case from this past June, something is happening in Maine right now that could be downright dangerous. The case is Counterman v. Colorado, decided on June 27. What’s going on in Maine is that Counterman has thrown into serious doubt whether our terrorizing statute is enforceable or is unconstitutional.

Why might that be dangerous?

I previously blogged about Lewiston mass murderer Robert Card, and the fact that he clearly committed the crime of terrorizing well before he engaged in his mass murder spree on October 25, 2023. Terrorizing is grounds for an arrest warrant, which can lead to the setting of bail conditions, which in Card’s circumstances would certainly have included a condition not to possess firearms and a condition requiring submission to searches of his person, residence, and motor vehicles for firearms.

In Card’s case police apparently never pursued a terrorizing charge, there was no arrest warrant, and there were no bail conditions. That is a matter all its own. But if Maine’s terrorizing statute is unconstitutional, that makes it unconstitutional to enforce the statute at all, which means anyone can threaten to shoot up an Army Reserve training center, or a school, or anyplace else at some point, and can’t lawfully be arrested for it. And that is potentially very dangerous.

The Counterman Background.

In Counterman v. Colorado, Billy Counterman was prosecuted under Colorado’s stalking statute. That statute made it a crime to “[r]epeatedly . . . make[ ] any form of communication with another person [in] a manner that would cause a reasonable person to suffer serious emotional distress and does cause that person . . . to suffer serious emotional distress.” The statute did not contain any culpable state of mind element. The State was able to prove a violation of the statute regardless whether the defendant in fact had no idea that the communications would cause a reasonable person to suffer serious emotional distress.

Between 2014 and 2016, Counterman sent hundreds of Facebook messages to a female musician whom he did not know. As the messages are described in the Supreme Court’s opinion, none appear to have contained any overt threat. They were just creepy. Some of them indicated that Counterman was following the woman around, watching her. But the State’s prosecution was not based on a theory of surveillance. It was based solely on the contents of the communications and their effect.

Counterman’s lawyer raised first amendment, protected speech concerns. The first amendment protects most speech regardless of its propensity to cause emotional distress. But there are certain categories of speech that are not protected by the first amendment. The category at issue in Counterman is “true threats,” which the Counterman Court describes as “serious expressions conveying that a speaker means to commit an act of unlawful violence.” Jests like “I’m going to kill you if you show up late again” don’t count. But there’s a twist. Supreme Court precedent dictates that whether a communication constitutes a “true threat” is determined solely on the communication’s objective content and surrounding circumstances, regardless of the subjective mindset of the person making it.

The Colorado Courts decided that the State was not constitutionally required to prove that Counterman had any idea of what effect his statements might have on the alleged victim or on a reasonable person. But the U.S. Supreme Court decided otherwise. The Supreme Court was concerned about the potential to “chill” free speech if a State is allowed to prosecute a person for threatening speech without proving the person had any idea the speech might be considered threatening. This might cause people to steer a wide berth around anything that might remotely be taken as threatening. That would lead to the suppression of speech that does not actually constitute a “true threat” — speech that is in fact protected by the first amendment. To avoid the problem, the Court decided that prosecutions based on alleged “true threats” must establish that the defendant acted “recklessly.” As the Court put it: “The State must show that the defendant consciously disregarded a substantial risk that his communications would be viewed as threatening violence. The State need not prove any more demanding form of subjective intent to threaten another.”

The State does not need to prove that the defendant acted intentionally — with the conscious object to produce the prohibited result — or knowingly — while aware that the prohibited result was practically certain to follow — but the State does need to prove that the defendant acted recklessly.

But what does that have to do with Maine?

Maine also has a stalking statute, and it punishes repeated communications that “would cause a reasonable person…[t]o suffer serious inconvenience or emotional distress.” Under Maine’s statute, communications are “repeated” when there are two or more or them. Communications do not need to be made directly to a person but may be “about a person.” “Emotional distress” can be as little as mental or emotional suffering evidenced by anxiety or apprehension. But Maine’s stalking statute requires the State to prove that a defendant acted intentionally or knowingly, and the rule in Maine is that any mental element set forth in a statute applies to all elements unless a contrary legislative intent clearly appears. So, Counterman’s recklessness requirement doesn’t appear to cause a problem for Maine’s stalking statute.

However, Maine’s terrorizing statute is a different matter.  Maine defines the crime of terrorizing as follows:

  1. A person is guilty of terrorizing if that person in fact communicates to any person a threat to commit or to cause to be committed a crime of violence dangerous to human life, against the person to whom the communication is made or another, and the natural and probable consequence of such a threat, whether or not such consequence in fact occurs, is:
  2. To place the person to whom the threat is communicated or the person threatened in reasonable fear that the crime will be committed. Violation of this paragraph is a Class D crime; or
  3. To cause evacuation of a building, place of assembly or facility of public transport or to cause the occupants of a building to be moved to or required to remain in a designated secured area. Violation of this paragraph is a Class C crime.

Because this crime involves threats, and because it does not contain any culpable state of mind element, it appears to run afoul of Counterman. If it does run afoul of Counterman, that makes Maine’s terrorizing statute unconstitutional. And if it is unconstitutional, that means Maine has no enforceable statute that makes it a crime to communicate to another person a threat to commit a crime of violence dangerous to human life against the recipient or others, unless the threat is of imminent harm. If the threat is to do the deed imminently to the person threatened, that violates the criminal threatening statute which makes it a Class D crime to “intentionally or knowingly place[] another person in fear of imminent bodily injury.”

If you tell me you are going to punch me in the face, and if I reasonably believe you are about to do it, that makes you a ripe subject for a criminal threatening charge. But if the terrorizing statute is unconstitutional, and if you tell me that you are going to kill the largest number of people ever killed in a single event in the State of Maine, sometime in the next month or so, by planting a dirty bomb in a school and shooting people who respond to the scene, there’s no enforceable crime under Maine law to charge you with.

Am I just imagining a problem here?

Consider this: My sources on the grapevine tell me that the D.A. in at least one prosecutorial district in Maine has been dismissing pending terrorizing charges because he believes they are unconstitutional under Counterman. Also consider that on Monday, December 11, 2023, in State v. Hasahn Carter, UCD Rockland CR-21-659, Active Retired Maine Supreme Judicial Court Justice Jeffrey Hjelm issued a written order dismissing an indictment for robbery based on Counterman.

Under Maine’s robbery statute, one of the ways to turn theft or attempted theft into robbery is to “threaten to use force against any person present,” with the intent to facilitate acquiring or making off with the property. In Carter, the State essentially tracked that portion of the robbery statute in its indictment. Because the portion of the statute that underpinned the allegation does not require the defendant to make the threat of force intentionally, knowingly or recklessly, Justice Hjelm determined that it does not meet the constitutional requirement announced in Counterman.

There is no need to crawl through the weeds of Justice Hjelm’s reasoning here. Ultimately, he might be right or he might not be. But his reasoning clearly condemns Maine’s crime of terrorizing as unconstitutional under the principles set forth in Counterman. And his reasoning severely limits the options for what might be done to pursue prosecutions under the existing terrorizing statute. Which means that Counterman has created a gaping hole in Maine’s ability to punish threats of this nature until the problem is repaired — both threats that have already been made and threats that are yet to be made.

What might be done to pursue prosecutions in a constitutional manner under the existing statute?

Is it possible that it is only necessary to “read-in” the constitutional requirement, requiring the State to prove a reckless state of mind for existing charges? In other words, the Legislature has defined the crime, but the definition carries a constitutional defect. The Supreme Court has declared that the defect can be repaired by adding the proof requirement “recklessly” regarding the propensity for the communication to be perceived as a threat.

Why can’t the State simply move to amend all the existing Class D charges, to add an allegation of “recklessly” under the Rule 3(d) of the Maine Rules of Unified Criminal Procedure? That Rule provides: “The court may permit a complaint to be amended at any time before verdict or finding if no additional or different crime is charged and if substantial rights of the defendant are not prejudiced.” As for new charges, the State could simply add the element of “recklessly” when it drafts all new criminal complaints for terrorizing.

Not so fast. In rejecting the indictment in Carter, which allegation used the “threaten” prong of the robbery statute that does not expressly include a mental element, Justice Hjelm refused to read-in a requirement of “recklessly.” This, he found, would essentially involve a judicial re-writing of the statute, adding an element that the Legislature chose not to include. Only the Legislature has the power to re-write statutes, not the courts. Which means that prosecutors in the executive branch of government also lack the power to add the element of “recklessly” to existing charges under a statute that does not contain that element. That being the case, there is simply no way to fix the problem, other than for the Legislature to re-write the terrorizing statute and the offending portion of the robbery statute, to make them comport with the constitutional requirement.

What does that mean as a practical matter? As we have just seen, it means that all pending terrorizing charges are constitutionally defective and cannot be repaired under the existing statute. It also means that no constitutionally adequate charge may be brought under the existing terrorizing statute.

How about having the Legislature re-write the terrorizing statute and then having prosecutors re-charge people under the new statute? Would that violate the constitutional prohibition against ex post facto laws?

The ex post facto clause is violated when a law purports to reach back, to punish conduct that was not prohibited before the law took effect. As it stands, terrorizing prohibits the making of any threat that meets statutory criteria without regard to the mental state of the person making the threat. That means that the existing statute prohibits/punishes the making of such a threat if the person intends for it to have its prohibited effect (intentionally), knows it is practically certain to have that effect (knowingly), consciously disregards the risk that it will have that effect (recklessly), or fails to be aware that it will have that effect (criminal negligence). Because the existing statute punishes the making of certain threats regardless of mental state, it necessarily punishes making the same threats when the person making them has a culpable mental state greater than what is required.

Because the existing terrorizing statute already prohibits the making of serious threats with no culpable state of mind at all, it would not apparently violate ex post facto protections to punish a person under a revised statute that narrows the existing prohibition by expressly raising the floor to the level of recklessly. As an aside, the Maine Criminal Code expressly states that any lower mental state that is required as an element of proof is automatically established whenever a higher mental state is proven. So, proof that conduct was undertaken intentionally establishes that it was done knowingly, which establishes it was done recklessly, etc.

The problem is not that recklessly, or knowingly, or intentionally threatening to commit a crime of violence dangerous to human life is currently allowed but would be prohibited under a revised terrorizing statute. The problem is that Counterman v. Colorado requires that the floor for such a statute must be raised past strict liability and criminal negligence to the level of recklessly. While Maine’s terrorizing statute already prohibits the making of these threats recklessly and even knowingly or intentionally, its floor is too low — it also prohibits the making of these threats negligently or with no culpable state of mind at all. And, according to the beliefs of at least one D.A. and one active retired Justice of the Maine Supreme Judicial Court, this problem precludes prosecution under the existing statute.

How does this relate to Robert Card?

Card reportedly made a threat on at least one occasion to shoot up the Army Reserve training center in Saco. He made the threat or threats to a fellow Army reservist or to multiple fellow Army reservists. That threat was clearly to commit a crime of violence dangerous to human life. And not only was it the natural and probable consequence that a reasonable and prudent person would have believed Card would commit the crime, at least one fellow Army reservist did believe it and informed a fellow reservist that he thought Card was going to do a “mass shooting.”

The Sagadahoc County Sheriff’s Office was informed of this, so it would have been possible for police to have nailed down the details, determined in which county the threat was made or was received by the person who heard it, put together a probable cause affidavit for an arrest warrant for Robert Card for terrorizing, and arrested him. That could have led to the setting of bail conditions prohibiting Card from possessing firearms and subjecting him to searches until the charge was resolved. That would have eliminated any need to tiptoe around Card for attempted “well-being checks.” Cops don’t tiptoe around people who have outstanding arrest warrants.

As it was, there was no such police action on Card’s reported act of terrorizing before he carried out his October mass-murder spree in Lewiston. That’s something to be looked into, as public officials explore the various lessons to be learned from Card’s case and corrective actions to be taken. It is perfectly understandable that no police action was taken, given that the recipient(s) of Card’s terrorizing threats were his friends who probably did not want to subject him to prosecution. But when someone is making credible threats to carry out mass murder, maybe the State should take control the way it does in domestic violence cases. In domestic violence cases, the victim often does not want to see the alleged perpetrator charged, to have the family unit split up and placed under enormous financial and emotional strain by the “no contact” bail conditions that routinely accompany such charges as a matter of policy.

But the State has made a categorical political decision about how domestic violence cases must be handled, regardless of how the complaining witness feels about it. If there is probable cause to believe a domestic violence assault occurred, someone is getting arrested, regardless. It’s a matter of policy. The alleged victim and the police have no choice. A domestic violence prosecutor will file a complaint, and the court will set bail with a “no contact” condition. If the alleged victim balks at being a witness, the State will do everything it can to keep the case going until it gets something out of it. Should the same type of policy exist with regard to threats to commit mass murder? Or should they be treated less seriously than even the least serious domestic violence offense?

Even if the police had followed up on Card’s terrorizing offense, and even if Card had been arrested and deprived of his firearms as a result of bail conditions, would his terrorizing charge have been dismissed by now, based on Counterman? If not, would dismissal be imminent? If so, Card’s bail conditions would extinguish with the dismissal of the charge, which means any bail conditions prohibiting possession of firearms and allowing police to search for violations would be extinguished too. Do you see the problem?

If, today, someone threatens to shoot up a school, or an Army Reserve training center, or a bar, or a store, at some point in the future, even if the recipient of the threat is perfectly willing to cooperate as a witness, what crime can the person legitimately be charged with under Maine law? The answer appears to be “None.” If I were a Maine State Legislator, I would make it a top priority to pass remedial emergency legislation for this, yesterday.