Driving Past Police Officer and Yelling “Fuck the Police” “While Pointing as if [One] Had a Gun” Is Constitutionally Protected

Start at State v. Buford-JohnsonSubmitted today by the Washington Court of Appeals by Judge Lori Smith and Acting Chief Judge Beth Andrus.

Artemas Buford Johnson was arrested after he drove past a Seattle Police Department officer and yelled “fuck the police” while pointing as if he had a gun….

To determine whether speech poses a threat, we use the objective test:[a] true threat is a statement made in a context or under such circumstances wherein a reasonable person would foresee that the statement would be interpreted … as a serious expression of intention to inflict bodily harm.'” A true threat is one that’s serious and not something you say in joke, idle talk or politics.

“[T]Nature of a threat will depend on all facts and circumstances. Therefore, it’s inappropriate to confine the inquiry to literal translations of spoken words. “[I]Not only the words and phrases of an alleged threat are important, but so is the wider context within which they were spoken, such as who the speaker was, how many people were present, what medium was used, and where it occurred. …

Here, we conclude that the evidence does not establish that Johnson made a true threat…. Johnson’s declaration did not contain any intent to cause harm. Instead, it was an unspecific and politically motivated statement of animosity. As we have observed, “criticism and commentary on public servants”, as well as political hyperbole, are political statements that, “are at the heart of First Amendment protection’ no matter how passionate or caustic.”[,]Sometimes, it can be unpleasantly sharp.” …

Johnson pointed out Officer Zerr’s face as though he was carrying a gun, an expression that can be taken to mean violence. According to the City, mimicking the firing or raising of a firearm has been considered dangerous in many other situations and jurisdictions. Therefore, it is necessary to examine “all facts and conditions” in order to decide if Johnson’s behavior was a threat.

These circumstances do not support the claim that Johnson’s words and actions together constitute a real threat. Johnson didn’t stop to approach Officer Zerr but continued on his northward journey throughout the encounter. Johnson also kept his arm out of the vehicle’s window as he drove, then stopped immediately at a stop light. These actions are more likely to be indicative of casual conversation, idle chat or a threat. {We … note that there is no clarification as to whether Johnson actually mimed shooting a gun or merely pointed his hand in a manner that was evocative of a gun, which would give more information about the extent to which Johnson’s conduct clearly expressed violence.} …

{The record shows that Officer Zerr went out at 9:45 pm by himself. A car without headlights passed Officer Zerr and the driver shouted at him. Officer Zerr believed he saw an object which might have been a gun. Officer Zerr “quickly moved in the shadows behind a telephone pole fearing that the pointed object could be a firearm.” Considering these circumstances, a reasonable fact finder could conclude that Johnson’s conduct placed Officer Zerr in reasonable fear of bodily harm.}

But, just because Officer Zerr is afraid does not make it a determinative factor. The true threat inquiry questions whether enough evidence exists to prove that Johnson could “‘foresee’ that. [his] statement would be interpreted … as a serious expression of intention to inflict bodily harm.'” Officer Zerr thought that Johnson might be seeing a gun, and he did not possess one. There is no indication that Johnson should have expected that Officer Zerr would believe he was carrying one. Johnson’s behavior does not seem to have been a threat, despite the fact that Officer Zerr expressed fear.

Bret Uhrich, thank you for this tip.