Ninth Circuit Overturns “Especially Unpleasant Fellow”‘s Conviction
Referring to defendant Walter Bagdasarian as “an especially unpleasant fellow,” the Ninth Circuit has nevertheless overturned his conviction under 18 U.S.C. § 879(a)(3), which makes it “a felony to threaten to kill or do bodily harm to a major presidential candidate.” Mr. Bagdarsarian made “the following
statements on an online message board two weeks before the presidential election: (1) “Re: Obama fk the niggar, he will have a 50 cal in the head soon” and (2) “shoot the nig.” The Court ruled 2-1 that the statements did not meet the criteria necessary
[f]or a statement to constitute an offense under 18 U.S.C. § 879(a)(3): objective and subjective. The first is that the statement would be understood by people hearing or reading it in context as a serious expression of an intent to kill or injure a major candidate for President. See Gordon, 974 F.2d at 1117. The second is that the defendant intended that the statement be understood as a threat. Id. Because Bagdasarian’s conviction under § 879 can be upheld only if both the objective and subjective requirements are met, neither standard is the obvious starting point for our analysis, and our resolution of either issue may serve as an alternate holding.
We begin with the objective test. One question under § 879(a)(3)is whether a reasonable person who heard the statement would have interpreted it as a threat. Gordon, 974 F.2d at 1117. This objective test requires the fact-finder to “look[ ] at the entire factual context of [the] statements including: the surrounding events, the listeners’ reaction, and whether the words are conditional.” Id. It is necessary, then, to determine whether Bagdasarian’s statements, considered in their full context, “would be interpreted by those to whom the maker communicates the statement as a serious expression of an intention to inflict bodily harm on or to take the life of [Obama].” Id. (quoting Roy, 416 F.2d at 877-78. The evidence is not sufficient to support a conclusion that a reasonable person who read the postings within or without the relevant context would have understood either to mean that Bagdasarian threatened to injure or kill the Presidential candidate.
Neither statement constitutes a threat in the ordinary meaning of the word: “an expression of an intention to inflict . . . injury . . . on another.” Webster’s Third New International Dictionary 2382 (1976). The “Obama fk the niggar” statement is a prediction that Obama “will have a 50 cal in the head soon.” It conveys no explicit or implicit threat on the part of Bagdasarian that he himself will kill or injure Obama. Nor does the second statement impart a threat. “[S]hoot the nig” is instead an imperative intended to encourage others to take violent action, if not simply an expression of rage or frustration. The threat statute, however, does not criminalize predictions or exhortations to others to injure or kill the President.It is difficult to see how a rational trier of fact could reasonably have found that either statement, on its face or taken in context, expresses a threat against Obama by Bagdasarian.
There is no disputing that neither of Bagdasarian’s statements was conditional and that both were alarming and dangerous. The first statement, which referred to Obama as a “niggar” who “will have a 50 cal in the head soon,” coupled a racial slur with an assassination forecast during a highly controversial campaign that would ultimately make Obama the country’s first black president. No less troubling is the defendant’s second statement imploring others to “shoot the nig,” lest the “country [be] fkd for another 4 years+” because “never in history” has a black person “done ANYTHING right.” There are many unstable individuals in this nation to whom assault weapons and other firearms are readily available, some of whom might believe that they were doing the nation a service were they to follow Bagdasarian’s commandment. There is nevertheless insufficient evidence that either statement constituted a threat or would be construed by a reasonable person as a genuine threat by Bagdasarian against Obama.
When our law punishes words, we must examine the surrounding circumstances to discern the significance of those words’ utterance, but must not distort or embellish their plain meaning so that the law may reach them. Here, the meaning of the words is absolutely plain. They do not constitute a threat and do not fall within the offense punished by the statute. In Watts, the Supreme Court reversed a conviction under a presidential threat statute. 394 U.S. at 705-06. The defendant there had said, “[a]nd 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.” Id. at 706. The Court held that “we must interpret the language Congress chose ‘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'”; adding that “[t]he language of the political arena . . . is often vituperative, abusive, and inexact.” Id. at 708 (citations omitted).
The Government argues that among the relevant elements of the factual context is that the defendant’s messages were anonymous, posted only under the screen name “californiaradial.” We grant that in some circumstances a speaker’s anonymity could influence a listener’s perception of danger. But the Government offers no support for its contention that the imperative “shoot the nig” or the prediction that Obama “will have a 50 cal in the head soon” would be more rather than less likely to be regarded as a threat under circumstances in which the speaker’s identity is unknown.Whatever the effect, in other circumstances, of anonymity on a reasonable interpretation of Bagdasarian’s statements, the financial message board to which he posted them is a non-violent discussion forum that would tend to blunt any perception that statements made there were serious expressions of intended violence.
When, in this case, we look to “[c]ontextual information . . . that [could] have a bearing on whether [Bagdasarian’s] statements might reasonably be interpreted as a threat,” United States v. Parr, 545 F.3d 491, 502 (7th Cir. 2008), cert. denied, 129 S. Ct. 1984 (2009), the only possible evidence is that three or four discussion board members wrote that they planned to alert authorities to the “shoot the nig” posting, although only one reader, Air Force Officer Base, actually did. The dissent identifies the responsive postings as the “[m]ost telling” evidence that a reasonable person would have perceived Bagdasarian’s messages as a threat. In doing so, it mischaracterizes these postings as “indicat[ing] that [their authors] perceived ‘shoot the nig’ as a threat to candidate Obama.” Dissent at 9828. In fact, none of the responses said anything about a threat. Their authors may well have thought that Bagdasarian’s messages were impermissible or offensive for some other reason or that they encouraged racism or violence. We fail to see why the fact that several people had negative reactions to the messages should be taken to mean that they or others interpreted them as a threat. It is certainly more significant that among the numerous persons who read Bagdasarian’s messages, the record reveals only one who was sufficiently disturbed to actually notify the authorities.
The Government contends that two additional facts show that Bagdasarian’s statements might reasonably be interpreted as a threat. The first is that when Bagdasarian made the statement that Obama “will have a 50 cal in the head soon,” Bagdasarian actually had .50 caliber weapons and ammunition in his home. The second is that on Election Day, two weeks after posting the messages, he sent an email that read, “Pistol . . . plink plink plink Now when you use a 50 cal on a nigga car you get this,” and linked to a video of debris and two junked cars being blown up. Nobody who read the message board postings, however, knew that he had a .50 caliber gun or that he would send the later emails. Neither of these facts could therefore, under an objective test, “have a bearing on whether [Bagdasarian’s] statements might reasonably be interpreted as a threat” by a reasonable person in the position of those who saw his postings on the AIG discussion board. Parr, 545 F.3d at 502.
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Even if “shoot the nig” or “[he] will have a 50 cal in the head soon” could reasonably have been perceived by objective observers as threats within the factual context, this alone would not have been enough to convict Bagdasarian under 18 U.S.C. § 879(a)(3). The Government must also show that he made the statements intending that they be taken as a threat. A statement that the speaker does not intend as a threat is afforded constitutional protection and cannot be held criminal. In Black, the Court explained that the State may punish only those threats in which 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.” 538 U.S. at 359. And in Gordon, we held as a matter of statutory interpretation that Congress “construe[d] ‘knowingly and willfully’ [in § 879] as requiring proof of a subjective intent to make a threat,'” and thus requires the application of a subjective as well as an objective test. 974 F.2d at 1117 (alterations in original) (quoting 128 Cong. Rec. 21,218 (1982)).
We have explained, supra at 9809-13, why neither of Bagdasarian’s statements on its face constitutes a true threat unprotected by the First Amendment. Most significantly, one is predictive in nature and the other exhortatory. For the same reasons, the evidence is not sufficient for any reasonable finder of fact to have concluded beyond a reasonable doubt that Bagdasarian intended that his statements be taken as threats. See Jackson, 433 U.S. at 319. Both under the constitutional requirement established in Black that we must read into § 879, and under the statutory requirement that we found extant in Gordon, the district court’s inference of Bagdasarian’s intent to threaten is unreasonable taken in context and does not, even when considered in the light most favorable to the prosecution, lie within the permissible range of interpretations of his message board postings. As a matter of law, neither statement may be held to constitute a “true threat.”
As we discussed in the previous section, the prediction that Obama “will have a 50 cal in the head soon” is not a threat on its face because it does not convey the notion that Bagdasarian himself had plans to fulfill the prediction that Obama would be killed, either now or in the future. Neither does the “shoot the nig” statement reflect the defendant’s intent to threaten that he himself will kill or injure Obama. Rather, “shoot the nig” expresses the imperative that some unknown third party should take violent action. The statement makes no reference to Bagdasarian himself and so, like the first statement, cannot reasonably be taken to express his intent to shoot Obama.
As with our analysis of the objective test, we do not confine our examination of subjective intent to the defendant’s statements alone. Relying on United States v. Sutcliffe, 505 F.3d 944 (9th Cir. 2007), the Government points to the two facts that we discussed in our analysis of objective understanding as evidence that Bagdasarian intended to make a threat: (1) that he was later found to possess a .50 caliber gun like the one he mentioned in the “Obama fk the niggar” posting, and (2) that the Election Day email referred to the use of “a 50 cal on a nigga car.” Neither fact is sufficient to prove beyond a reasonable doubt that Bagdasarian intended to make a threat when, two weeks before Election Day, he posted the two statements for which he was indicted.
In Sutcliffe, we affirmed a conviction under another threat statute, 18 U.S.C. § 875(c), which, in addition to the knowing transmission of an interstate threat, requires specific intent to threaten. 505 F.3d at 952, 960-61; see also United States v. Twine, 853 F.2d 676, 680 (9th Cir. 1988). We held that the district court did not abuse its discretion by allowing the Government to present evidence of the defendant’s gun possession to demonstrate that he actually intended to threaten violence. Id. at 959. The fact of the defendant’s gun possession was not determinative of the defendant’s intent, however, but just one among many pieces of evidence relevant to the language and context of the threats that we considered in determining that the defendant had the requisite specific intent to threaten. Most important in Sutcliffe were the first-person and highly specific character of messages such as “I will kill you,” “I’m now armed,” and “You think seeing [your license plate number posted on my website] is bad . . . trust us when we say [it] can get much, much, worse. . . . [I]f you call this house again . . . , I will personally send you back to the hell from where you came.” Id. at 951-52 (first omission and second alteration in original).
Given that Bagdasarian’s statements, “Re: Obama fk the niggar, he will have a 50 cal in the head soon” and “shoot the nig” fail to express any intent on his part to take any action, the fact that he possessed the weapons is not sufficient to establish that he intended [*34] to threaten Obama himself. Similarly, the Election Day emails do little to advance the prosecution’s case. They simply provide additional information — weblinks to a video of debris and two junked cars being blown up and to an advertisement for assault rifles available for purchase online — that Bagdasarian may have believed would tend to encourage the email’s recipient to take violent action against Obama. But, as we have explained, incitement to kill or injure a presidential candidate does not qualify as an offense under § 879(a)(3).
Taking the two message board postings in the context of all of the relevant facts and circumstances, the prosecution failed to present sufficient evidence to establish beyond a reasonable doubt that Bagdasarian had the subjective intent to threaten a presidential candidate. For the same reasons that his statements fail to meet the subjective element of § 879, given any reasonable construction of the words in his postings, those statements do not constitute a “true threat,” and they are therefore protected speech under the First Amendment. See Black, 538 U.S. at 359. Accordingly, his conviction must be reversed.
The case is U.S. v. Bagdasarian, 2011 U.S. App. LEXIS 14684. [Footnotes omitted].