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Supreme Court Justice Clarence Thomas goes his own way on threat to police

He found the threat credible.

On Monday, Supreme Court Justice Clarence Thomas told the Kansas Supreme Court they took a high court precedent too far in a decision that let a man go free for telling a police officer’s son that his father would end up “in a ditch.”

Thomas did so in a dissent from the Supreme Court’s decision not to hear an appeal of that case and one other about a man who told his mother that he was “going to f—— kill [her] a–” after the Kansas Supreme Court ruled that both cases involved speech that was protected under the First Amendment. That ruling overturned the Kansas law the two men were convicted under—which Justice Thomas argued contradicts past rulings and is an “overreading” of a 2003 Supreme Court case.

In the case, a man named Timothy Boettger was angry one night because his daughter’s dog had been shot and police were not investigating, according to a petition submitted by Kansas asking the Supreme Court to decide on the case. Boettger then went to a convenience store, where he knew an employee was the son of a police officer. There, “Boettger told another employee that ‘these people…might find themselves dead in a ditch somewhere,'” before leaving and coming back to confront the officer’s son.

“You’re the man I’m looking for,” Boettger allegedly told the officer’s son while visibly shaking and with clenched fists. He continued to say, according to testimony from the officer’s son, that “he had some friends up in the Paseo area in Kansas City that don’t mess around, and that I was going to end up finding my dad in a ditch.”

Boettger was convicted on a count of “reckless criminal threat” though he denied that he wanted to threaten the officer’s son or the officer. The Kansas Supreme Court overturned the decision, saying that the law’s rule against threats made “in reckless disregard” was vague and did not rise to the “true threat” level often used in free speech cases. It also said that Boettger’s actions did not come to the level required to be thought of as intentional intimidation.

“In my view, the Constitution likely permits States to criminalize threats even in the absence of any intent to intimidate,” Thomas wrote Monday. “It appears to follow that threats of violence made in reckless disregard of causing fear may be prohibited. The Kansas Supreme Court reached the opposite conclusion by overreading our decision in Black, which did not answer the question presented here.

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“If state high courts hold even a fraction of these statutes unconstitutional, we will have no choice but to intervene,” Thomas said. “I would do so now to address the problem caused by our language in Black.”

The “Black” case Thomas refers to is Virginia v. Black, in which the high court held in 2003 that a state may ban cross-burning meant to intimidate, but that it could not assume all cross-burning is meant to intimidate.

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