State v. Schenk

• Decision Date: 04 May 2018
• Docket Number: No. 16–166,16–166
• Citation: 190 A.3d 820
• Court: Vermont Supreme Court
• Parties: STATE of Vermont v. William SCHENK

190 A.3d 820

STATE of Vermont

v.William SCHENK

No. 16–166

Supreme Court of Vermont.

March Term, 2017

May 4, 2018

Justin Jiron, Acting Chittenden County State's Attorney, and Aimee Griffin, Deputy State's Attorney, Burlington, for Plaintiff–Appellee.

Matthew F. Valerio, Defender General, Rebecca Turner, Appellate Defender, and James LaRock and Andrew Rome, Law Clerks (On the Brief), Montpelier, for Defendant–Appellant.

James Diaz, Lia Ernst and Julie Kalish, ACLU Foundation of Vermont, Montpelier, for Amicus Curiae American Civil Liberties Union Foundation of Vermont.

Thomas J. Donovan, Jr., Attorney General, and Benjamin D. Battles, Assistant Attorney General, Montpelier, for Amicus Curiae Vermont Attorney General.

PRESENT: Reiber, C.J., Dooley, Skoglund, Robinson and Eaton, JJ.

DOOLEY, J.

¶ 1. Defendant William Schenk was charged with two counts of disorderly conduct, in violation of 13 V.S.A. § 1026(a)(1), in connection with the distribution of Ku Klux Klan recruitment flyers in the City of Burlington. For each count, the State charged that the penalty should be enhanced under 13 V.S.A. § 1455 because the crime was hate-motivated. Defendant appeals the trial court's denial of his motion to dismiss the two disorderly conduct charges and the associated sentence enhancement. We hold that the State failed to establish a prima facie case because defendant's conduct conveyed neither the physical nor imminent threat of harm that we construe the definition of "threatening behavior" to require. Accordingly, we do not reach defendant's challenge to the application of the hate-motivated crime sentence enhancement. We reverse and grant defendant's motion to dismiss.

¶ 2. The facts may be summarized as follows. In late October 2015, two women in Burlington found flyers advertising the Ku Klux Klan at their homes. One of the women is Mexican American; the other is African American. One woman found the flyer folded up and inserted into the mailbox by her front door, while the other woman found the flyer tucked into her front door. The one-page flyer depicted a hooded and robed Klansman mounted on a horse and holding a burning cross. The Confederate flag and the colonial thirteen-star American flag are shown behind the horse and rider. Across the top of the flyer were the words: "Join the Klan and Save Our Land!!!!" The bottom of the flyer read "United Northern & Southern Knights of the Ku Klux Klan" and included a web address. The flyer had no other content. Neither woman saw this flyer at neighboring homes.

¶ 3. Burlington police canvassed the area where the flyers were found looking for other flyers, though they were unable to speak with some residents because those residents were not at home. Police also reached out through social media and the local news to determine whether any other flyers had been found. The only other reported sighting was at a local copy store, where an employee reported finding the flyer in one of the store's copy machines. Police viewed surveillance camera footage from the store and were able to identify defendant. The investigating detective then contacted defendant. Defendant admitted to distributing the flyers and explained that he is a Kleagle, a recruiter for the Ku Klux Klan. Defendant told the detective that he had distributed a total of thirty to forty flyers in neighborhoods that defendant described as "more white."

¶ 4. The State charged defendant with two counts of disorderly conduct under 13 V.S.A. § 1026(a)(1), which states that:

A person is guilty of disorderly conduct if he or she, with intent to cause public inconvenience or annoyance, or recklessly creates a risk thereof ... engages in fighting or in violent, tumultuous, or threatening behavior ....

For each count, the charging information specifically alleged that defendant had "recklessly created a risk of public inconvenience or annoyance when he engaged in threatening behavior, TO WIT, by anonymously placing a flyer endorsing the Ku Klux Klan." The State also sought a hate-motivated crime sentence enhancement under 13 V.S.A. § 1455.¹

¶ 5. Defendant filed a motion to dismiss the charges under Vermont Rule of Criminal Procedure 12(b)(2)(B), which permits a defendant to raise at any time "a claim that the indictment or information fails to state an offense." As the court noted in its decision, the motion to dismiss for failure to state an offense was essentially converted into a motion to dismiss for lack of a prima facie case under Rule 12(d). In his motion, defendant argued that his conduct was protected speech under the U.S. Constitution's First Amendment and that his speech did not fall into any of the narrow categories of unprotected speech, such as true threats. The trial court held an evidentiary hearing on defendant's motion at which the two alleged victims and the investigating police officer testified. The court applied the standard for whether the State demonstrated a prima facie case: "whether, taking the evidence in the light most favorable to the state and excluding modifying evidence, the state has produced evidence fairly and reasonably tending to show the defendant guilty beyond a reasonable doubt." State v. Dixon, 169 Vt. 15, 17, 725 A.2d 920, 922 (1999) (quotation omitted). The court concluded in a written order that defendant's conduct was the kind of threatening behavior proscribed by 13 V.S.A. § 1026(a)(1), the disorderly conduct statute. The court correctly noted that this Court has construed this statute such that correct application of the threatening behavior provision steers away from constitutional infirmity. See State v. Albarelli, 2011 VT 24, 189 Vt. 293, 19 A.3d 130. The court read Albarelli to list five factors, including: (1) whether the conduct would be considered threatening to a reasonable witness; (2) whether the conduct was directed at a particular person; (3) whether the conduct included only speech or also included a significant physical component; (4) whether the conduct carried a strong implication of imminent harm to the victim; and (5) whether the conduct conveyed the charged level of intent to harm, in this case, recklessness.

¶ 6. The court considered each of these factors in turn, concluding that each weighed against dismissal. The court found it particularly persuasive that defendant had entered the curtilage of each alleged victim's home, an area that the court noted typically bears a heightened expectation of privacy. The court's decision also placed great weight on the content of the flyers distributed by defendant, reasoning for example that because "the Klan name and imagery, particularly the image of a burning cross, implies impending harm," defendant's conduct carried a strong implication of harm. The court summarized its decision as follows: "[T]he nature of the flyer and placement of the flyer in a part of the complaining witnesses' homes, where the recipients are members of an ethnic group historically targeted for violence by the Klan, results in the conclusion that the Defendant used the flyer as a tool to convey a strong message of intimidation and the potential for harm."

¶ 7. Following the trial court's denial of his motion to dismiss, defendant entered a conditional guilty plea, reserving the right to appeal the trial court's decision. Defendant was sentenced to concurrent terms of 119 to 120 days, with credit for time served. This appeal followed.

¶ 8. On appeal, defendant raises both facial and as-applied constitutional arguments. He essentially asks this Court to hold that either the disorderly conduct statute reaches only physical behavior, and speech can never serve as the basis for a charge under the statute, or that the statute can reach speech and, as such, either unconstitutionally regulates free speech under the First Amendment or prohibits only unprotected true threats. If the statute does reach true threats, defendant argues that his speech does not convey the imminent harm that defendant argues is necessary to find a true threat under U.S. Supreme Court caselaw.

¶ 9. It is fair to say from the briefing that the parties center their arguments on whether defendant's conduct can be found to involve a true threat such that defendant's speech was not protected by the First Amendment to the U.S. Constitution. The U.S. Supreme Court has held in two main cases that true threats are not constitutionally protected: Watts v. United States, 394 U.S. 705, 89 S.Ct. 1399, 22 L.Ed.2d 664 (1969) (per curiam), and Virginia v. Black, 538 U.S. 343, 123 S.Ct. 1536, 155 L.Ed.2d 535 (2003). Watts is brief and generally provides that speech constituting a true threat is not protected by the First Amendment but offers little explanation of what constitutes a true threat. Watts, 394 U.S. at 707–08, 89 S.Ct. 1399. Virginia v. Black provides some more guidance on the definition of a true threat: " ‘True threats’ encompass those statements where the speaker means to communicate a serious expression of an intent to commit an act of unlawful violence to a particular individual or group of individuals." Black, 538 U.S. at 359, 123 S.Ct. 1536 (plurality opinion). The decision goes on:

[A] prohibition on true threats "protect[s] individuals from the fear of violence" and "from the disruption that fear engenders," in addition to protecting people "from the possibility that the threatened violence will occur." Intimidation in the constitutionally proscribable sense of the word is a type of true threat, where a speaker directs a threat to a person or group of persons with the intent of placing the victim in fear of bodily harm or death. Respondents do not contest that some cross burnings fit within this meaning of intimidating speech, and rightly so .... [T]he history of cross burning in this country shows that cross burning is often intimidating, intended to create a pervasive fear in victims that they are a target of violence.

Id. at 360, 123 S.Ct. 1536 (quoting R.A.V. v. City of St. Paul, 505 U.S....