State v. Kilburn

• Decision Date: 12 February 2004
• Docket Number: No. 73301-5.,73301-5.
• Citation: 151 Wash.2d 36,84 P.3d 1215
• Parties: STATE of Washington, Respondent, v. Martin KILBURN, Petitioner.
• Court: Washington Supreme Court

84 P.3d 1215

151 Wash.2d 36

STATE of Washington, Respondent, v. Martin KILBURN, Petitioner.

No. 73301-5.

Supreme Court of Washington, En Banc.

February 12, 2004.

As Amended February 17, 2004.

Gregory Charles Link, Seattle, for petitioner.

Dennis John McCurdy, Deputy, Randi Austell, Deputy, Seattle, for respondent.

MADSEN, J.

Petitioner Martin Kilborn (Kilborn) claims that his juvenile conviction of felony harassment under RCW 9A.46.020 must be reversed because the State failed to prove that he actually intended to carry out the alleged threat made to a classmate and because his statements were intended only as a joke. We hold that proof that the speaker intended to carry out his or her threat is not required by either the First Amendment or the harassment statute. However, we agree with Kilborn that the evidence is insufficient to sustain his conviction.

Facts¹

On March 21, 2001, at Mount Baker Middle School in King County, eighth grade student K.J. was sitting next to Kilborn at the end of their last class, an accelerated reading class. Kilborn said to K.J., "I'm going to bring a gun to school tomorrow and shoot everyone and start with you," and then he said, "maybe not you first." Finding of Fact 3, Clerk's Papers (CP) at 16. K.J. was surprised and said, "yeah right" and turned away. Finding of Fact 3, CP at 16.

K.J. immediately told a friend about Kilborn's statement but did not tell her teacher because she did not know what to do. She thought Kilborn might have been joking, but she was not sure. K.J. went home and continued to think all that afternoon and into the evening about what Kilborn had said, and the more she thought about it the more she became afraid that Kilborn was serious.

K.J. did not know Kilborn to be a mean or scary person. He had never done anything like this before. K.J. had no reason to think that Kilborn would make a threat of this kind, but she testified that "we all knew we weren't suppose to say things like that so the fact that he said it made me think he was serious." Finding of Fact 8, CP at 17. Kilborn, on the other hand, stated in a written statement admitted at his trial that he had said that "[t]here's nothing an AK 47 wouldn't solve" and stated this was only a joke. CP at 21.

Eventually that evening K.J. told her mother and father what Kilborn had said, and her mother called 911. K.J. testified that she felt that "if he wasn't joking she saved lives." Finding of Fact 9, CP at 17. Kilborn was arrested and charged with felony harassment, which requires the State to prove that Kilborn knowingly threatened to cause bodily injury to K.J. immediately or in the future, the threat being one to kill, and by words or conduct placed K.J. in reasonable fear that the threat would be carried out. RCW 9A.46.020.

The trial court found K.J.'s testimony credible and that K.J. reasonably feared that Kilborn would carry out the threat. The trial court adjudicated Kilborn guilty of felony harassment, involving a threat to kill, and entered written findings and conclusions. During its oral ruling, the court rejected Kilborn's argument that the State had to prove that he actually intended to carry out the threat. In the course of addressing this matter, the court also said that

in retrospect and in analyzing the Respondent, both in terms of, you know, what [K.J.] said about him and any other limited knowledge I have, there is no reason to believe that he in fact intended to bring a gun to school and shoot everybody. But the cases say, and the law says, that that is not relevant; that we are simply talking about whether there is a threat and whether that threat is communicated.

Report of Proceedings (RP) at 119.

At Kilborn's disposition hearing, the court imposed no sanction of confinement, supervision, or community service. The deputy prosecutor stated that just before trial the State offered a deferred disposition, but the offer was rejected. Following trial, the deputy prosecutor again suggested a deferred disposition, but the court advised that a deferred prosecution cannot be imposed after adjudication. The court commented that Kilborn "has now got a felony; there is nothing I can do about it. This should have been resolved in some other way prior to trial, and it's just—it's a tragedy that it wasn't." RP at 136. The only penalty imposed was a $100.00 victim penalty assessment.

Kilborn appealed, arguing that for a conviction under RCW 9A.46.020 to satisfy First Amendment requirements, the State must prove that the speaker actually intended to carry out the threat. In his case, he argued, he was joking. He also complained that his threat to "shoot everyone" could not reasonably be perceived to be a threat to kill. The Court of Appeals affirmed in an unpublished opinion. State v. Kilborn, No. 49084-2-I, 114 Wash.App. 1006, 2002 WL 31375570 (2002). This court granted Kilborn's petition for discretionary review.

Discussion

I.

Kilborn maintains that unless the State shows that he intended to actually carry out his threat, it was not a true threat. Under the First Amendment only a true threat suffices for a conviction under RCW 9A.46.020. Thus, he argues, his conviction must be overturned because he was only joking when he made his statements about shooting everyone at the school.

RCW 9A.46.020² provides in relevant part:

(1) A person is guilty of harassment if:

(a) Without lawful authority, the person knowingly threatens:

(i) To cause bodily injury immediately or in the future to the person threatened or to any other person ... [and]

. . . .

(b) The person by words or conduct places the person threatened in reasonable fear that the threat will be carried out....

(2) A person who harasses another ... is guilty of a class C felony if ... (b) the person harasses another person under subsection (1)(a)(i) of this section by threatening to kill the person threatened....

The statute criminalizes pure speech. Therefore, it "`must be interpreted with the commands of the First Amendment clearly in mind.'" State v. Williams, 144 Wash.2d 197, 206-07, 26 P.3d 890 (2001) (quoting Watts v. United States, 394 U.S. 705, 707, 89 S.Ct. 1399, 22 L.Ed.2d 664 (1969)). "The First Amendment presupposes that the freedom to speak one's mind is not only an aspect of individual liberty—and thus a good unto itself—but also is essential to the common quest for the truth and the vitality of society as a whole." Bose Corp. v. Consumers Union of United States, Inc., 466 U.S. 485, 104 S.Ct. 1949,80 L.Ed.2d 502 (1984). While laws may proscribe "all sorts of conduct" the same is not true of speech; the law "is not free to interfere with speech for no better reason than promoting an approved message or discouraging a disfavored one, however enlightened either purpose may strike the government." Hurley v. Irish-Am. Gay, Lesbian & Bisexual Group, 515 U.S. 557, 579, 115 S.Ct. 2338, 132 L.Ed.2d 487 (1995). "However pernicious an opinion may seem, we depend for its correction not on the conscience of judges and juries but on the competition of other ideas." Milkovich v. Lorain Journal Co., 497 U.S. 1, 18, 110 S.Ct. 2695, 111 L.Ed.2d 1 (1990) (quoting Gertz v. Welch, Inc., 418 U.S. 323, 339-40, 94 S.Ct. 2997, 41 L.Ed.2d 789 (1974)). Thus, for example, in Brandenburg v. Ohio, 395 U.S. 444, 447-48, 89 S.Ct. 1827, 23 L.Ed.2d 430 (1969), the United States Supreme Court held that "`the mere abstract teaching'" of "`the moral propriety or even moral necessity for a resort to force and violence'" is protected by the First Amendment unless the speech is "directed to inciting or producing imminent lawless action and is likely to incite or produce such action." Id. (quoting Noto v. United States, 367 U.S. 290, 297-98, 81 S.Ct. 1517, 6 L.Ed.2d 836 (1961)).

In order to preserve the vital right to free speech, it is imperative that a court carefully assess statements at issue to determine whether they fall within or without the protection of the First Amendment. It is, at this point, settled that certain kinds of speech are unprotected. The Court has noted that

there are categories of communication and certain special utterances to which the majestic protection of the First Amendment does not extend because they "are no essential part of any exposition of ideas, and are of such slight social value as a step to truth that any benefit that may be derived from them is clearly outweighed by the social interest in order and morality."

Bose, 466 U.S. at 504, 104 S.Ct. 1949 (quoting Chaplinsky v. State of New Hampshire, 315 U.S. 568, 572, 62 S.Ct. 766, 86 L.Ed. 1031 (1942)). Among these categories are libelous speech, fighting words, incitement to riot, obscenity, and child pornography. Id.

An additional category is at issue here—"true threats," which are also unprotected speech under the First Amendment. See Watts, 394 U.S. at 707, 89 S.Ct. 1399; see also, e.g., United States v. Fulmer, 108 F.3d 1486, 1492-93 (1st Cir.1997); Doe v. Pulaski County Special Sch. Dist., 306 F.3d 616, 622 (8th Cir.2002); Planned Parenthood of Columbia/Willamette, Inc. v. Am. Coalition of Life Activists, 290 F.3d 1058, 1074 (9th Cir. 2002) (Planned Parenthood); Williams, 144 Wash.2d at 207, 26 P.3d 890; State v. J.M., 144 Wash.2d 472, 477, 28 P.3d 720 (2001). To avoid unconstitutional infringement of protected speech, RCW 9A.46.020(1)(a)(i) must be read as clearly prohibiting only "true threats." Williams, 144 Wash.2d at 208, 26 P.3d 890; J.M., 144 Wash.2d at 478, 28 P.3d 720.

The reason that "true threats" are not protected speech is because there is an overriding governmental interest in the "`protect[ion of] individuals from the fear of violence, from the disruption that fear engenders, and from the possibility that the threatened violence will occur.'" Z J.M., 144 Wash.2d at 478,28 P.3d 720 (quoting R.A.V. v. City of St. Paul, 505 U.S. 377, 388, 112 S.Ct. 2538, 120 L.Ed.2d 305 (1992)). We have adopted an objective test of what constitutes a "true...