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Appeal from the District Court of Nelson County, Northeast Central Judicial District, the Honorable Joel D. Medd, Judge.
Cameron D. Sillers (argued) and Quentin B. Wenzel (appeared), Langdon, N.D., for plaintiff and appellee.
Mark A. Friese (argued) and Bruce D. Quick (appeared), Fargo, N.D., for defendant and appellant.
Lisa Fair McEvers, Daniel J. Crothers, Dale V. Sandstrom, Ronald E. Goodman, S.J., Gerald W. VandeWalle, C.J. Opinion of the Court by McEvers, Justice. The Honorable Ronald E. Goodman, S.J., sitting in place of Kapsner, J., disqualified.
[¶1] Rodney Brossart appeals from a criminal judgment entered after a jury found him guilty of terrorizing, preventing arrest, and failing to comply with the law for estray animals. We affirm Brossart's convictions for preventing arrest and failing to comply with the estray law, but we reverse his conviction for terrorizing, and remand for a new trial on the terrorizing charge.
[¶2] Brossart is a Nelson County landowner and farmer. On June 22, 2011, two of Brossart's adult children observed three cow-calf pairs loose on or near Brossart's property and they determined the cattle did not belong to Brossart. The cattle were secured in a fenced " missile site" Brossart leases. One of Brossart's children told him about the cattle after the cattle were secured.
[¶3] On June 23, 2011, Chris Anderson discovered three cow-calf pairs had escaped from his fenced property. Anderson tracked the cattle to Brossart's property and spoke to Brossart about the cattle. According to Anderson, Brossart informed him that he would have to buy the cattle back. Anderson returned to his farm and contacted the Nelson County Sheriff's Department.
[¶4] Eric Braathen, a deputy for the Nelson County Sheriff's Department, contacted Fred Frederikson, a licensed peace officer and a brand inspector for the North Dakota Stockmen's Association. While driving to Brossart's farm, Braathen and Frederikson saw Brossart pumping water from a field. Braathen introduced Frederikson to Brossart and Frederikson asked about the cattle and whether he could go look at them. According to Braathen, Brossart informed the officers " if you step foot on my property, you are going to not be walking away." The situation quickly escalated, Braathen attempted to arrest Brossart, Brossart resisted, and Braathen used a taser on Brossart multiple times before he was handcuffed.
[¶5] Brossart was charged with failing to comply with the estray chapter and preventing arrest. In July 2011, he was also charged with terrorizing, theft of property, and criminal mischief for the June 23, 2011, incident.
[¶6] Brossart moved to dismiss the charges or alternatively to suppress evidence. He argued the charge of failing to comply with the estray chapter must be dismissed because the cattle were not " estrays," the estray chapter did not apply, and he was in lawful possession of the " trespassing" cattle under N.D.C.C. § 36-11-10. He also argued the terrorizing charge must be dismissed because the United States Constitution protects free speech, the statement he made to law enforcement was protected speech, and it was not an unprotected " true threat." He alternatively argued any evidence obtained as a result of his unlawful seizure and arrest must be suppressed. He also claimed the charges must be dismissed because the police provoked and used excessive force against him. After a hearing, the district court denied Brossart's motion to dismiss and his motion to suppress.
[¶7] A jury found Brossart guilty of terrorizing, preventing arrest, and failing to comply with the estray chapter, but found him not guilty of theft and criminal mischief.
[¶8] Brossart argues the district court erred by failing to dismiss his terrorizing charge as a matter of law and by failing to give his requested jury instructions. He claims his terrorizing conviction must be reversed because it was based on constitutionally protected speech. He contends the court erred by failing to instruct the jury on how to properly evaluate whether his statement constituted an unprotected " true threat."
[¶9] A person is guilty of terrorizing under N.D.C.C. § 12.1-17-04, if the person " with intent to place another human being in fear for that human being's or another's
safety . . . or in reckless disregard of the risk of causing such terror, disruption, or inconvenience, the person . . . [t]hreatens to commit any crime of violence or act dangerous to human life[.]" Brossart does not challenge the constitutionality of N.D.C.C. § 12.1-17-04, but claims the speech his terrorizing conviction was based on was constitutionally protected as a matter of law and the district court erred by failing to dismiss the terrorizing charge.
[¶10] Whether speech is constitutionally protected is a question of law, which is fully reviewable on appeal. State v. Boyle, 2009 ND 156, ¶ 8, 771 N.W.2d 604. " We use caution in reviewing claims of constitutionally protected activity, and we independently scrutinize the record when free speech arguments are made to see if the charged conduct is protected." Id.
[¶11] " The First Amendment is applicable to the states through the Fourteenth Amendment, and precludes states from enacting laws 'abridging the freedom of speech.'" State v. Backlund, 2003 ND 184, ¶ 19, 672 N.W.2d 431. However, there are limits on free speech and not all speech is protected. See In re A.R., 2010 ND 84, ¶ 9, 781 N.W.2d 644. " The First Amendment permits 'restrictions upon the content of speech in a few limited areas, which 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.'" Virginia v. Black, 538 U.S. 343, 359, 123 S.Ct. 1536, 155 L.Ed.2d 535 (2003) (quoting R.A.V. v. City of St. Paul, 505 U.S. 377, 382-83, 112 S.Ct. 2538, 120 L.Ed.2d 305 (1992)).
[¶12] One type of speech that is not protected under the First Amendment and may be restricted is speech that is a " true threat." Watts v. United States, 394 U.S. 705, 707, 89 S.Ct. 1399, 22 L.Ed.2d 664 (1969); Black, 538 U.S. at 359; see also State v. Haugen, 392 N.W.2d 799, 803 (N.D. 1986). " [T]hreats are not constitutionally protected expression if the character, intent, and circumstances of the threat are narrowly circumscribed." Haugen, at 803. " '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, at 359. " 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 intent of placing the victim in fear of bodily harm or death." Id. at 360. The speaker does not have to intend to carry out the threat. Id. " Rather, 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.'" Id. (quoting R.A.V., 505 U.S. at 388).
[¶13] Brossart claims his statement was not a true threat, but was a conditional comment and was similar to the speech the United States Supreme Court found was protected in Watts, 394 U.S. 705, 89 S.Ct. 1399, 22 L.Ed.2d 664 (1969). In Watts, the United States Supreme Court reversed the defendant's conviction for knowingly and willfully making any threat to take the life of or inflict bodily harm on the President, holding the defendant's speech did not constitute a " threat." Id. at 708. The defendant was an eighteen-year-old male among a group of mostly young people at a public rally on the Washington Monument grounds in 1966. Id. at 706. One group member suggested the young people should get more education
before expressing their views, and the defendant stated:
They always holler at us to get an education. And now I have already received my draft classification as 1-A and I have got to report for my physical this Monday coming. I am not going. If they ever make me carry a rifle the first man I want to get in my sights is L.B.J. They are not going to make me kill my black brothers.
Id. at 706. The Court held the statute was constitutional on its face and required the government to prove a true " threat," which must be distinguished from constitutionally protected speech. Id. at 707-08. The Court said the statute must be interpreted " 'against the background of a profound national commitment to the principle that debate on public issues should be uninhibited, robust, and wideopen, and that it may well include vehement, caustic, and sometimes unpleasantly sharp attacks on government and public officials.'" Id. at 708 (quoting New York Times Co. v. Sullivan, 376 U.S. 254, 270, 84 S.Ct. 710, 11 L.Ed.2d 686 (1964)). The Court considered the expressly conditional nature of the statement, the context in which it was made, and the crowd's laughing reaction and determined the statement was political hyperbole and did not constitute a true threat. Watts, at 708.
[¶14] The facts of this case are different from those in Watts. Braathen testified he and Frederikson encountered Brossart along the road while they were traveling to Brossart's farm, he introduced Frederikson to Brossart, Brossart refused to shake Frederikson's hand, Frederikson informed Brossart they were there about the stray cattle on his property, Frederikson said the cattle belonged to Brossart's neighbor, Brossart asked if they had any proof, and Frederikson stated that he had the brand papers for Anderson's cattle. Braathen testified Frederikson informed Brossart they would like to go on his property and look at the cattle to verify ownership, Brossart said he wanted to go back to work, Braathen told him they needed to take care of it now, Brossart stated " you step foot on my property, you are going to not be walking away," and Frederikson held up his arms and told Brossart not to make any threats. Braathen testified Brossart was very hostile when they approached him, he was angry as soon as Braathen exited his patrol vehicle, and " [h]e had no intentions of cooperating . . . from the moment we got there, he wanted a confrontation with us." Frederikson's testimony was consistent with Braathen's testimony. Frederikson testified the situation escalated very quickly, within 30 seconds Brossart told them " if you go on my land, you won't walk off," he told Brossart not to talk like that, and he tried to settle the situation down. Frederikson also testified that he took Brossart's comment as a serious threat because Brossart seemed like he was ready for a fight or wanted to hurt someone. Frederikson testified: 1) Brossart attempted to go back to work, Braathen informed Brossart they were going to " get this taken care of," Brossart refused and attempted to go back to work; 2) Braathen told Brossart multiple times that he was under arrest; 3) Braathen advised Brossart multiple times that he could be ...