IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON DIVISION ONE STATE OF WASHINGTON, ) No. 77982-6-I ) Respondent,
v. ) PUBLISHED OPINION JEREMY WILLIAM DAWLEY, ) ) FILED: December 30, 2019 Appellant.
VERELLEN, J. — Jeremy Dawley asserts a facial challenge to
RCW 9A.76.180, the intimidating a public servant statute. Specifically, Dawley
argues the statute is unconstitutionally overbroad because it restricts a substantial
amount of protected speech. Dawley contends the statute must be limited to true
threats, serious expressions of the intention to inflict bodily harm upon or to take
the life of another. Because the statute is a content based restriction on pure
speech, it is subject to strict scrutiny and must be narrowly tailored to serve
compelling state interests. We agree with Dawley that the statute is not narrowly
tailored unless limited to true threats alone. Because the State concedes, and we
agree, that there is insufficient evidence that Dawley made a true threat, we
reverse his convictions for intimidating a public servant. No. 77982-6-1/2
FACTS
In 2012, Dawley was discharged from the United States Navy after suffering
a traumatic brain injury. Dawley lived in Oak Harbor. At night, Dawley regularly
went on long walks with his friend, Efrain Palacios. Palacios and Dawley
frequently called the Island County Communications (1-COM) nonemergency line
to report traffic issues, parking violations, and other complaints.
Between October and December 2016, Dawley complained to Kevin
Dresker, the Oak Harbor chief of police, and Nikki Esparza, the city attorney, about
the level of officer discretion in addressing his complaints. Dawley was also
frustrated with the officer response time.
On the evening of January 8, 2017, Palacios and Dawley went for a walk.
Dawley called 1-COM to report two illegally parked cars. The dispatcher requested
that Dawley wait at his current location to talk with the responding officer. Officer
Patrick Horn arrived and found Dawley sitting on a stump. Dawley had his service
dog with him. Officer Horn shined his spotlight on Dawley.
Officer Horn suggested that Dawley “carry a notebook with him so he could
notate different violations that he saw and then he could give [1-COM] a call and to
let us know what all those were” at one time.1 While Officer Horn and Dawley
were talking, another officer pulled up. Dawley became agitated. At trial, Officer
Horn testified:
1 Report of Proceedings (RP) (Dec. 6, 2017) at 348.
2 No. 77982-6-1/3
[Dawley] then told me not to get out of my patrol car or else his dog would attack. And I told Mr. Dawley if he let his dog attack me, I would be forced to shoot his dog. And he stated that he was aware of self-defense laws and that if I shot his dog, that he would in turn stab me. And that’s when [the other officer] made the statement to him, “If you stab my partner, I’m going to have to shoot you.”~21
On January 9, the day after the incident, Dawley left the following voicemail
for Chief Dresker:
This is Jeremy Dawley again. I’m not getting a phone call back from you. So do I need to look up your address and literally show up at your house ‘cause I’m that not afraid of you, and I’m that pissed off at your police officer. Urn, I need something done about last night. . Is that how you guys do business? You and I, . .
thought we had good terms but apparently, that just went to shit last night, so true colors came out. So I want to know what the hell you want me to do. Like is this just like a personal thing, like I just have to handle it myself? Or are you going to take my complaint serious at some point? Like where do you want this to stop? . . I was the .
guy who was almost shot by the police department because I want people to start acting right. So if you could give me a call back that would be awesome. Thank you.[3~
After listening to the voicemail, Chief Dresker called Dawley. Chief Dresker
did not record the subsequent phone call, but he testified:
Mr. Dawley was upset with the officers and the contact he had with [Officers Horn] [a]nd he pretty quickly went to the fact that he was going to look up my information, information on my family and the city attorney, and that he would seek out certain groups to provide that information to. . .
2 kI. at 353. ~ Ex. 1.
3 No. 77982-6-1/4
He said he was going to use. Green Beret tactics, and . .
then he further explained that he would get the local populace to take the action so he wouldn’t have to . .
[H]e wanted certain actions to take place, and he wanted them—quick responses. And these are these calls of the bushes and parked cars and those things and that he wasn’t getting that, he wasn’t happy, and that I wasn’t doing anything about it.~4~
Also on January 9, Chief Dresker spoke to the city attorney, Esparza, about
the comments Dawley made concerning her and her family. Esparza called
Dawley while Chief Dresker was present. Dawley allowed Esparza to record the
phone call. During that call, Dawley said:
I really think something needs to be done about this. . .So, I mean, .
it’s completely up to you. But if you guys aren’t willing to draw the line, like I’m gonna protect myself. I’m not saying I’m gonna come after you guys ‘cause that’s—I’m not a murderer, I’m a law-abiding citizen..
Thank you much for making me feel unsafe in my community that I’ve never done anything wrong in. I hope you feel safe though. You feel safe, ma’am? Do you feel safe at your house when you go to sleep?[5]
Esparza asked Dawley about his phone call with Chief Dresker. Dawley
stated, “I just said that I felt others in the community would like to know your
whereabouts, your picture, the picture of your children. I mean, that’s legal. I can
do that.”6 Dawley went on to say, “[lit’s a community improvement project, you
~ RP (Dec. 6,2017) at 239-41. ~ Ex. 2 at 0:23-1:02. 61d.at 1:23-1:30.
4 No. 77982-6-1/5
know. It’s a Green Beret tactic where you teach the locals, so it’s nothing illegal.
I’m not obligating or even insisting that they do anything illegal. All I’m doing is I
told them I would provide the information.”7 When Esparza clarified Dawley’s
statements, he stated:
I can educate whoever I like on any matter of personal defense, offensive offense. That’s not illegal, so you cannot be upset about that. And as far as providing your picture and stuff, they already know who you are. So I’m not doing anything illegal. I’m not saying I’m gonna ask ‘em to go and do anything illegal to you, no. I didn’t do anything like that.~8~
Dawley indicated that he wanted Esparza “to do [her] job. The same thing
with the police chief.”9 Dawley also indicated:
And I don’t want to be assaulted by, assaulted by your police officers, killed by your police officers, otherwise harassed by your police department. Your ICOM dispatch is going to continue to take my complaints. They’re not illegal, they’re not ill foundedj10]
Later in the same phone call, Dawley stated:
[L]et’s just say hypothetically. I was going to say, “Hey, you know . .
what, I’ll do a direct mailing to the pedophiles and the rapists and the violent offenders, and I’ll have ‘em sent to your house because .
you make me feel unsafe. I can’t defend myself. .You’re in your .
home, you have your gun, you’re comfortable, you’re not on the street, you know what to do if somebody approaches your home. No, that’s not right, that’s not what you did to me. And what you did to me as a city is you made me feel completely unsafe, not once but twice now. Your officers have put me into killing range with a firearm. A firearm, ma’am! What happens if I came to your house
~ Id. at 2:16-2:30. 8 kc~. at 2:43-3:05. ki. at 4:25-4:27. 10 ki. at 4:30-4:40.
5 No. 77982-6-1/6
and I put you into killing range with a firearm, right? You’d be upset.t1 1]
On January 10, Dawley filed a public record request at the Oak Harbor
Police Department. He sought records on “[v]iolent offenses that resulted in
physical harm and offenders to include sexual assaults.”12 Chief Dresker arrested
Dawley after Dawley filed the request.
The State charged Dawley with three counts of intimidating a public servant
and one count of telephone harassment. The jury convicted Dawley of two of the
counts of intimidating a public servant and the single count of telephone
harassment.
Dawley appeals his convictions for intimidating a public servant.
ANALYSIS
I. Constitutionality of RCW 9A.76.180
Whether a statute is unconstitutionally overbroad under the First
Amendment presents a question of law that we review de novo.13
Because of the important rights protected by the First Amendment, the overbreadth doctrine allows a litigant to challenge a statute on its face, rather than as applied to his own facts, and have a statute invalidated for overbreadth where it would be unconstitutional as applied to others even if not as applied to him.t14~
~ ki.at 11:34-12:37. 12 Ex. 28. 13 State v. Immelt, 173 Wn.2d 1, 6, 267 P.3d 305 (2011). 14 State v. Motherwell, 114 Wn.2d 353, 370-71, 788 P.2d 1066 (1990).
6 No. 77982-6-117
Usually, “[t]he party challenging an enactment bears the burden of proving
its unconstitutionality.”15 But in the context of a First Amendment challenge, the
State “bears the burden of justifying a restriction on speech.”16
As a threshold matter, we must consider whether the statute reaches
constitutionally protected speech. First Amendment protection does not extend to
certain types of speech, including true threats,17 fighting words, and obscenity.18
“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 upon or to
take the life of [another individual].”19 If a statute regulates only unprotected
speech, the First Amendment is not implicated.
Here, RCW 9A.76.180(1) provides, “A person is guilty of intimidating a
public servant if, by the use of a threat, he or she attempts to influence a public
servant’s vote, opinion, decision, or other official action as a public servant.”
Under RCW 9A.76.180(3)(b), “Threat’ as used in this section means . . . [t]hreats
15 Immelt, 173 Wn.2d at 6. 16 Ino lno, Inc. v. City of Bellevue, 132 Wn.2d 103, 114, 937 P.2d 154 (1997). 17 State v. Williams, 144 Wn.2d 197, 207, 26 P.3d 890 (2001). 18 State v. Kilburn, 151 Wn.2d 36, 42-43, 84 P.3d 1215 (2004). State v. Knowles, 91 Wn. App. 367, 373, 957 P.2d 797 (1998) (alterations 19
in original) (quoting United States v. Khorrami, 895 F.2d 1186, 1192 (7th Cir. 1990)).
7 No. 77982-6-1/8
as defined in ROW 9A.04.11O.” RCW9A.04.11O(28) provides several alternative
definitions of ‘threat.”
The court instructed the jury solely on the definition of “threat” in
ROW 9A.04.11O(28)(j). Section (j) defines a “threat” as “a direct or indirect
communication with the intent. . . [t]o do any other act which is intended to harm
substantially the person threatened or another with respect to his or her health,
safety, business, financial condition, or personal relationships.” The jury was not
instructed as to any of the other definitions of “threat” from ROW 9A.04. 11 0(28)20
Although ROW 9A.04.110(28)(j) prohibits true threats because it includes
threats to substantially harm a person’s health or safety, the statute also implicates
protected speech because it includes threats to a person’s business, financial
condition, or personal relationships. As a result, ROW 9A.04.11O(28)(j) prohibits
constitutionally protected speech.21 Because the statute reaches constitutionally
protected speech, we “must determine whether it does so in a way that is
unconstitutionally overbroad.”22 The answer to this question requires analysis of
the appropriate level of scrutiny. There are a variety of approaches to overbreadth
20 The court did not instruct the jury on the other statutory definitions of “threat” in ROW 9A.04.1 1O(28)(a)-(i). Because our analysis under (j) is determinafive, we decline to address arguments from Dawley and amicus based on the other definitions of “threat.” 21 See Resp’t’s Br. at 21 (“The State concedes ROW 9A.04.1 10(28)(j) does
proscribe some protected speech because it does not proscribe only true threats.”). 22 Williams, 144 Wn.2d at 209.
8 No. 77982-6-1/9
analysis,23 but it is clear there are certain critical considerations, many of which are
not in dispute here.
The level of scrutiny we apply depends on the nature of the speech and the
nature of the restriction. It may also depend on whether the statute restricts
conduct or pure speech. In its brief, the State argues, “The crime of intimidating a
public servant is not a crime of pure speech” because it “includes not only a threat,
but importantly an intent to influence a public servant.”24 And because intimidating
a public servant includes the intent to influence, “[t]his takes the crime out of [the]
realm of pure speech.”25 But at oral argument, the State acknowledged the
additional intent element is not a form of conduct. We conclude RCW 9A.76.1 80
regulates pure speech.
23 See Richard H. Fallon, Making Sense of Overbreadth, 100 YALE L.J. 853 (1991); Luke Meier, A Broad Attack on Overbreadth, 40 VAL. U. L. REV. 113 (2005); Matthew D. Bunker, Clay Calvert, William C. Nevin, Strict in Theory, But Feeble in Fact? First Amendment Strict Scrutiny and the Protection of Speech, 16 COMM. L. & P0L’Y 349 (2011). State v. Homan, 191 Wn. App. 759, 767-70, 364 P.3d 839 (2015), offers a thoughtful framework for overbreadth analysis: “We engage in a four-part analysis to determine whether a law is facially overbroad under the First Amendment. First, we must determine whether the challenged law actually prohibits speech. . Second, we must determine the legitimate sweep of . .
the challenged law—whether the law legitimately prohibits certain speech. . .
Third, we must determine whether the challenged law also prohibits constitutionally protected speech. Fourth, we must determine whether the . . .
challenged law prohibits a substantial amount of such speech.” (Citations omitted.) 24 Resp’t’s Br. at 27.
25 Id.
9 No. 77982-6-1/10
When, as here, a statute regulates pure speech, the statute “‘must be
interpreted with the commands of the First Amendment clearly in mind.”26 A
statute regulating pure speech is unconstitutionally overbroad if it restricts a
substantial amount of protected speech.27
The level of scrutiny may also depend on whether a restriction is content-
based or content-neutral. Here, the State does not dispute that RCW 9A.76.180 is
a content-based restriction. We agree because the statute specifically criminalizes
speech intended to influence a public servant. “Content-based restrictions on
speech are presumptively unconstitutional and are thus subject to strict
scrutiny.”28 We conclude RCW 9A.76.180 is subject to strict scrutiny.
“[Sitrict scrutiny requires a statute be narrowly tailored to serve a
compelling state interest.”29 Thus, to overcome Dawley’s overbreadth challenge,
the State must establish the intimidating a public servant statute is necessary to
serve a compelling state interest and the statute is narrowly tailored to achieve
that purpose.
As to the state interest served, the intimidating a public servant statute
“protects public servants from threats of substantial harm” and it “protects the
26 Williams, 144 Wn.2d at 206-07 (quoting Watts v. United States, 394 U.S. 705, 707, 89 5. Ct. 1399, 22 L. Ed. 2d 664 (1969)). 27 City of Seattle v. Huff, 111 Wn.2d 923, 925, 767 P.2d 572 (1989).
28 Williams, 144 Wn.2d at 208 (quoting Collier v. City of Tacoma, 121 Wn.2d 737, 748-49, 854 P.2d 1046 (1993)). 29 kI. at 211.
10 No. 77982-6-I/li
public’s interest in a fair and independent decision-making process.”3°
Additionally, RCW 9A.76.180 deters “the intimidation and threats that lead to
corrupt decision making, it helps maintain public confidence in democratic
institutions.”31 These government interests are compelling. The harder question is
whether the statute is narrowly tailored to achieve these interests.
The only Washington case directly addressing the constitutionality of
RCW 9A.76.180 is State v. Stephenson.32 In Stephenson, as in this case, the
definition of “threat” in RCW 9A.04.i 10(28)(j), then codified as .110(25)0), was the
only definition at issue. The Stephenson court first concluded,
“ROW 9A.04.1i0(25)(j)’s prohibitions encompass a ‘real and substantial’ amount
of protected speech.”33 We agree.
In addition to true threats, the statutory definition of “threat” in
RCW 9A.04.110(28)(j) sweeps up a substantial amount of protected speech,
including criticism, commentary, and even political hyperbole34 towards and about
~° State v. Stephenson, 89 Wn. App. 794, 803-04, 950 P.2d 38 (1998). 31 kcl. at 804. 3289 Wn. App. 794, 950 P.2d 38 (1998). 33k1.at802. ~ A broad range of political hyperbole can be protected speech. See State v. Strong, 167 Wn. App. 206, 216 nI, 272 P.3d 281 (2012) (discussing Watts v. United States, 394 U.S. 705, 706, 89 S. Ct. 1399, 22 L. Ed. 2d 664 (1969) (United States Supreme Court reversal of conviction for threatening President Lyndon B. Johnson. Watts stated, “If they ever make me carry a rifle[,] the first man I want to get in my sights is L.B.J.” The Court concluded that because the challenged statute regulated pure speech, it must distinguish political hyperbole and true threats.)).
11 No. 77982-6-1/12
public servants.35 Such political speech is at the core of First Amendment
protection “no matter how vehement, caustic and sometimes unpleasantly
sharp. “36
In Stephenson, the court determined, “The public’s interest in open and fair
government decision making provides a . . . compelling justification for an
incidental limitation of protected speech.”37 The court concluded the limitation was
incidental because the challenge involved onlyone subsection of the threat
definition, any threat “must be substantial, not threats that merely embarrass or
inconvenience their target,” and the intimidation statute required a specific state of
~ Dawley offers several examples of protected speech swept up by subsection (j). ~ Appellant’s Br. at 28 (“The ‘threats’ included in RCW 9A.04. 11 O(28)[(j)] include. an attorney who threatens to run for office . .
against a mayor if she persists with homeless encampment sweeps [o]r, a . . . .
bar investigator who threatens to bring a disciplinary action against an attorney general if she does not cease revealing privileged client communications.”). Amicus also offers several examples. See Amicus Br. at 6 (“For example, ROW 9A.04.1 1 O(28)(d) or (j) is broad enough to cover threatening to sue or bring charges against an officer if they do not cease an arrest where the arrestee believes the officer is violating their civil rights.”). 36 The United States Supreme Court has recognized our “profound national commitment to the principle that debate on public issues should be uninhibited, robust, and wide-open, and that it may well include vehement, caustic, and sometimes unpleasantly sharp attacks on government and public officials.” New York Times Co. v. Sullivan, 376 U.S. 254, 270, 84 S. Ct. 710, 11 L. Ed. 2d 686 (1964). ~ Stephenson, 89 Wn. App. at 806.
12 No. 77982-6-1113
mind.38 ‘[A] critical element of the statute here is the requirement that the
defendant ‘attempt to influence’ the targeted public servant’s behavior.”39
Although the Stephenson court initially identified the incorrect level of
scrutiny,40 the court’s final conclusion touched on the appropriate level of strict
Id. at 807. ~ Id. 40 In considering whether the prohibition was constitutionally permissible, the Stephenson court incorrectly engaged in forum analysis, utilizing the nonpublic government forum level of scrutiny rather than the heightened level of scrutiny applicable to private communications not occurring on any form of government property. “Generally, when a free speech challenge arises in regard to activity on property owned and controlled by the government, a court will engage in a ‘forum analysis’ to determine the level of judicial scrutiny that applies.” Bradburn v. North Cent. Req’l Library Dist., 168 Wn.2d 789, 813, 231 P.3d 166 (2010) (emphasis added). Forum analysis looks at whether the speech occurs in a government- owned public forum, limited-public forum, or a nonpublic forum. Sprague v. Spokane Valley Fire Dep’t, 189 Wn.2d 858, 878-79, 409 P.3d 160 (2018). “The governmental regulation of speech in a nonpublic forum does not violate the First Amendment if ‘the distinctions drawn are reasonable in light of the purpose served by the forum and are viewpoint-neutral” Stephenson, 89 Wn. App. at 803 (quoting City of Seattle v. Eze, 111 Wn.2d 22, 32, 759 P.2d 366 (1988)). On the other hand, the appropriate level of scrutiny for speech on private property is whether the regulation was narrowly tailored to serve a compelling government interest. In Huff, 186 Wn.2d 210, 375 P.3d 1056 (2016), our Supreme Court applied forum analysis to an overbreadth challenge to a Seattle telephone harassment ordinance. The court ultimately applied the nonpublic forum standard of scrutiny to telephone communication. A law restricting communication in a nonpublic forum is subject to the lowest level of scrutiny, whereas a law restricting communication in a public forum is subject to heightened scrutiny because the “principal purpose of traditional public forum is the free exchange of ideas.” Cornelius v. NAACP Legal Def. and Educ. Fund, 473 U.S. 788, 800, 105 S. Ct. 3439, 87 L. Ed. 2d 567 (1985). fj~f~ has been criticized for “applying the nonpublic forum doctrine to devalue speech occurring on private property.” Aaron H. Caplan, Stretching the Equal Access Beyond Equal Access, 27 SEATTLE U.L. REV. 273, 362 (2003); see also Aaron H. Caplan, Invasion of the Public Forum Doctrine, 46 WILLAMETTE L. REV. 647, 658 (2010). We conclude forum analysis is not
13 No. 77982-6-1/14
scrutiny for speech occurring on private property. “Considering the State’s
compelling interest in maintaining the integrity of government action and the
narrow tailoring of the statute, we conclude that the challenged statute is
reasonable in light of its purposes and is not unconstitutionally overbroad.”41
We disagree with the Stephenson court’s conclusions that the intimidating a
public servant statute involves only incidental restrictions and that the statute is
narrowly tailored. As discussed above, the statutory definition of “threat” in section
RCW 9A.04.11O(28)(j) goes beyond true threats and sweeps up a substantial
amount of protected speech, including political speech at the core of First
Amendment protection. The statute impacts a substantial amount of protected
speech and is not narrowly tailored. Thus, the intimidating a public servant
statute, when based on RCW 9A.04.110(28)(j), is unconstitutionally overbroad.
However, “‘[a] statute or ordinance will be overturned only if the court is
unable to place a sufficiently limiting construction on a standardless sweep of
applicable to this case. Despite any confusion in JJ~ff and Stephenson, it is clear that forum analysis applies only to speech occurring on government property. 41 Stephenson, 89 Wn. App. at 807. In State v. Montano, our Supreme Court addressed the question “whether sufficient evidence existed that Montano intended his threats [to a public servant] to influence an official action.” 169 Wn.2d 872, 876, 239 P.3d 360 (2010). Our Supreme Court cited Stephenson and approved the observation that “the attempt to influence’ element of the crime cannot be satisfied by threats alone. . [Tic convict a person of intimidating a . .
public servant, there must be some evidence suggesting an attempt to influence, aside from the threats themselves or the defendant’s generalized anger at the circumstances.” j4~ at 877. Despite our Supreme Court’s general approval of the logic of Stephenson, in Montano, the court did not address whether the intimidating a public servant statute was unconstitutionally overbroad.
14 No. 77982-6-1115
legislation.”42 Dawley argues that only a true threats limitation can save this
statute when the jury is instructed on a threat solely under RCW 9A.04.1 10(28)0).
We agree. By limiting the statute to true threats, no protected speech is
implicated.
We are not persuaded to adopt a more relaxed limitation, such as the
“inherently wrongful” limitation from State v. Paulinci.43 In Pauling, our Supreme
Court considered an overbreadth challenge to former ROW 9A.56.130 (1975), the
second degree extortion statute. That statute provided, “A person is guilty of
extortion in the second degree if he commits extortion by means of a threat as
defined in then RCW 9A.04.1 10(25)(d) through 0).” The court concluded the statute prohibited “a real and substantial amount of protected speech that the
government may not infringe upon.”44
But our Supreme Court determined it was “unnecessary to strike [the
extortion statute] because we may impose a limiting construction in the form of a
requirement that there be a ‘lack of nexus’ that limits its application to only
unprotected speech.”45 According to Pauling, in the context of extortion, a threat is
“inherently wrongful” if there is no nexus between the threat itself and the property
the threat attempts to gain.
42Immelt, 173 Wn.2d at 6-7 (quoting City of Tacoma v. Luvene, 118 Wn.2d 826, 840, 827 P.2d 1374 (1992)). ~~149 Wn.2d 381,391,69 P.3d 331 (2003). 44k1.at389. ki. at 391 (emphasis added).
15 No. 77982-6-1/16
The “inherently wrongful” threat limitation utilized in Pauling is not
appropriate in this case because the crime of extortion is fundamentally different
from the crime of intimidating a public servant. Extortion is an extension of theft.46
Unlike intimidating a public servant, extortion is a mixed conduct and speech
crime.47 When a statute regulates mixed conduct and speech, “a sufficiently
important governmental interest in regulating the nonspeech element can justify
incidental limitations on First Amendment freedoms.”48
And in the case of pure speech regulation, the statute is unconstitutionally
overbroad if it prohibits a substantial amount of protected speech. Even if the
government has a compelling interest, the statute must be narrowly tailored to
achieve that purpose.49 Unlike Pauling and the second degree extortion statute,
an “inherently wrongful” limitation would not limit RCW 9A.76.180 to “only
unprotected speech.”5° No matter the motive behind an individual’s attempt to
influence a public servant’s vote, opinion, decision, or other official action as a
public servant, such pure political speech is at the core of the First Amendment
and necessarily subject to heightened protection. The “inherently wrongful”
46 See Stroncj, 167 Wn. App. at 214 (“[E}xtortion requires the unlawful compelling of the victim to give up property; it is an extension of theft.”). ~ ich (“The central importance to the crime of nonspeech conduct—the wrongful acquisition or attempted acquisition of another’s property—takes extortion outside the category of pure speech.”). 48ki.at215. ~Huff, 111 Wn.2d at 925. 50 Pauling, 149 Wn.2d at 391.
16 No. 77982-6-1/17
limitation is inapplicable to pure political speech. We agree with Dawley. The only
constitutionally permissible limiting construction to save the intimidating a public
servant statute when the jury is instructed on the definition of “threat” from
RCW 9A.04.1 10 (28)0) is to limit the statute to true threats alone.
The State concedes, and we agree, Dawley did not issue a true threat
against either Chief Dresker or Esparza. He made no serious expression of
intention to inflict bodily harm upon or to take the life of another individual.
Because there is insufficient evidence to support Dawley’s convictions for
intimidation of a public servant, we do not address Dawley’s alternative
arguments.
We reverse Dawley’s convictions for intimidation of a public servant and
remand for proceedings consistent with this opinion.
‘I LaF ~ WE CONCUR:
d ______