Appeals court judge says threats to sue or file a complaint not criminal actions

By Sandra Lane | Aug 11, 2018

NEW ORLEANS – An appeals court judge has affirmed a lower court's decision to keep the State of Louisiana from enforcing a law deemed to violate the First Amendment.

Judge Jerry E. Smith of the U.S. Court of Appeals, Fifth Circuit affirmed on Aug. 9 the decision of the U.S. District Court for the Eastern District of Louisiana, and said, “We affirm the judgment invalidating it.”

The lower court had made this ruling and enjoined Louisiana from enforcing Section 14:122’s prohibition on “threats.”  Shortly thereafter, Jeff Landry, Attorney General of Louisiana, appealed the decision to the higher court.

As stated in the opinion, Section 14.122 makes criminal the use of any type of threat on any public officer with intent to influence the officer’s conduct. The lower court ruled that the meaning of ‘threat’ is broad enough to include threats to take lawful, peaceful actions, such as threats to sue a police officer or challenge an incumbent officeholder. 

The cause of this action began in December 2014 when Travis Seals and Ali Bergeron were accused by a neighbor of aggravated assault and the police responded. Seals said that he was pepper-sprayed and verbally objected to the arrest, threatening “to make lawful complaints” about the officers’ conduct. According to the officers, Seals violently resisted and “repeatedly made threats of physical harm.”

As a result, Seals and Bergeron filed a complaint against Brandon McBee, the arresting officer in September 2016. They accused him of malicious prosecution, conspiracy and a First Amendment violation. At the trial, the district court allowed the State of Louisiana to intervene, defending the constitutionality of Section 14:122.

Court documents stated that plaintiffs then moved for partial summary judgment on their First Amendment claim, alleging that Section 14:122 is “facially invalid as overbroad and content-based.” Louisiana cross-moved for summary judgment, replying that plaintiffs lack standing to challenge Section 14:122 because they seek only injunctive relief, but face no threat of future injury because no charges have yet been brought.

The district court held a hearing to sort through standing. Plaintiffs admitted that the district attorney had stated he had no intention of charging them at that time, but stated that the district attorney could still prosecute Seals. 

Louisiana said that the district had not brought charges but has never disputed that Seals made threats, was arrested, and could be prosecuted under Section 14:122 until four years after the arrest, which is December 2019.2

The district court granted plaintiffs’ motion, finding standing and declaring Section 14:122 overbroad as applying to constitutionally protected threats. The court enjoined Louisiana from enforcing Section 14:122’s prohibition on “threats.”  This order was upheld by the appeals court.

In conclusion, Judge Smith said, “Section 14:122 is not a time, place and manner restriction. Not only does it encompass unprotected content, it reaches far beyond those constitutional limitations to target threats to complain to a school principal if one gets a bad grade, threats to run against an incumbent unless he votes your way on a bill, or threats to call the media if the police point a gun at you. 

Those kinds of threats are part of the core First Amendment rights by which we distinguish our free nation from a police state. Thus, insofar as it criminalizes threats, Section 14:122 is unconstitutionally overbroad. The judgment is affirmed.”

Judge Jacques L. Wiener, Jr. and Judge Don Willett concurred with Judge Smith. 

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