A few months ago, we wrote about (YET ANOTHER) terrible law Louisiana has on the books. Like its other terrible laws, this one is abused by law enforcement. The law itself -- which forbids the "intimidation" of public officials -- has already been ruled unconstitutional by a federal judge.
This law is wielded by officers and prosecutors to ring people up for "intimidating" cops by doing things like threatening to sue or file complaints. The wording lends itself to this. It criminalizes anything that might "influence" a public official's "conduct." No doubt threats of lawsuits or complaints have some effect on officers and how they behave and react. The most noticeable effect isn't on the public officials. It's the addition of a charge specifically related to what a citizen says to a law enforcement officer if they're unhappy with the way they're being treated.
Travis Seals was the recipient of one of these bogus charges as the result of him informing an officer he was going to file "lawful complaints" during his arrest for unknown charges. (The opinion only says "conduct not specifically reflected in the record.") He verbally objected to the arrest, which apparently led to the application of pepper spray and Seals' announcement of the pending filing of complaints.
The lower court said the law was unconstitutional. Even though Seals was never officially charged by the DA, the DA still chose to fight for the bad law in court. And again, it's the state appealing the lower court's ruling. The state tried to get the case tossed for lack of standing, saying it had promised not to use that law against Seals in the future. The court disagrees, using a couple of footnotes (p. 5) to explain why this promise isn't really worth the PDF it's printed on before ruling on the law itself. It also points out the state has brought this charge in circumstances like these against 150 people, so it's not as though it's restraining itself for abusing a bad, broadly-written law.
And it is incredibly broad, as the Fifth Circuit Appeals Court points out in its opinion [PDF]. (h/t Volokh Conspiracy)
The statute criminalizes “public intimidation,” defined as “the use of violence force, or threats upon [a specified list of persons, including any public officer or public employee] with the intent to influence his conduct in relation to his position, employment, or duty.” (Emphasis added.) On its face, the statute is extremely broad. The definition of “threat” generally encompasses any “statement of an intention to inflict pain, injury, damage, or other hostile action on someone in retribution for something done or not done.” That definition easily covers threats to call your lawyer if the police unlawfully search your house or to complain to a DMV manager if your paperwork is processed wrongly.
The appeals court notes that, even if it accepts the conclusion of state court rulings, which create a requirement that such "threats" or "intimidation" produce a "corrupting effect" (bribery is one example), that still doesn't make the law Constitutional. (Also: state law rulings aren't considered precedent by federal appeals courts.)
Accordingly, we assume, but only for purposes of this appeal, that Section 14:122 requires a corrupt intent, defined as the intent to obtain something that the speaker is not entitled to as a matter of right.
Yet we can narrow Section 14:122 no further. According to the state, we should construe the statute to apply only to true threats, i.e. “a serious expression of an intent to commit an act of unlawful violence” toward specific persons. There are several reasons why we cannot do so. First, the definition of “threat” is broader than true threats: any “statement of an intention to inflict pain, injury, damage, or other hostile action on someone in retribution for something done or not done.” Second, the reporter’s comments to Section 14:122 provide that the statute “should include threats of harm or injury to the character of the person threatened as well as actual or threatened physical violence.” Thus, the section is not “readily susceptible” to such a limiting construction.
The third reason is the biggest -- and it's supplied by Louisiana's government itself.
As plaintiffs note, the Louisiana Court of Appeals has upheld the conviction of a defendant who violated Section 14:122 by threatening “to sue” an officer and “get [his] job” if the officer arrested him. See State v. Mouton, 129 So. 3d 49, 54, 59 (La. App. 3d Cir. 2013). Plainly, such a threat suggests no violence—indeed, the threat appears to be a plan to take perfectly lawful actions. Accordingly, we cannot construe Section 14:122 to apply only to true threats of violence.
The law is so broadly written it criminalizes protected speech.
[T]he statute reaches both true threats—such as “don’t arrest me or I’ll hit you”—and threats to take wholly lawful actions—such as “don’t arrest me or I’ll sue you.” In both those examples, the speaker may be legally subject to arrest and is trying to influence a police officer in the course of his duties.
The court points out it's not impossible to craft a law targeting speech against public officials. Content-based restrictions can be Constitutional, but they have to be extremely narrowly-crafted. This law isn't, and its attendant abuse shows just how broadly written it is. When even stating you're going to run for office against a government official if they pass legislation you don't like (an example used in the ruling) can be construed as criminal under the law, there's zero chance it can survive a Constitutional challenge.
Section 14:122 could encompass an innocuous threat to complain to a DMV manager for slow service or a serious threat to organize lawsuits and demonstrations unless the police lower their weapons. And each kind of threat is constitutionally protected…. Section 14:122 undermines that freedom and thus is unconstitutional.
The Appeals Court hammers this point home twice in the same ruling.
A fortiori, Section 14:122 is not a time, place, and manner restriction. And 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 law may have to be rewritten. But for right now it at least can't be used the way it was in this case or several others involving Louisiana law enforcement.