Wise v. Commonwealth

COURT OF APPEALS OF VIRGINIA

Present: Judges Benton, Haley and Senior Judge Annunziata
Argued at Alexandria, Virginia

LUTHER LEE WISE
OPINION BY
v. Record No. 2385-05-4 JUDGE JAMES W. BENTON, JR.
FEBRUARY 27, 2007
COMMONWEALTH OF VIRGINIA

FROM THE CIRCUIT COURT OF LOUDOUN COUNTY
Burke F. McCahill, Judge

Bonnie H. Hoffman, Deputy Public Defender, for appellant.

Eugene Murphy, Senior Assistant Attorney General (Robert F.
McDonnell, Attorney General, on brief), for appellee.

The trial judge convicted Luther Lee Wise of obstructing justice in violation of Code

§ 18.2-460(C). Wise contends Code § 18.2-460(C) is unconstitutional, in violation of the First and

Fourteenth Amendments, both facially and as applied to him. We hold the statute is not

constitutionally infirm, and we affirm the conviction.

I.

A grand jury indicted Wise for felony obstruction of justice, in violation of Code

§ 18.2-460(C). In pertinent part, this subsection of the statute provides as follows:

If any person by threats of bodily harm . . . knowingly attempts
to intimidate or impede a judge, magistrate, justice, juror, witness,
or any law-enforcement officer, lawfully engaged in the discharge
of his duty . . . relating to the violation of any violent felony
offense listed in subsection C of [Code] § 17.1-805, he shall be
guilty of a Class 5 felony.

The indictment charged that Wise feloniously, by threats of bodily harm, knowingly attempted to

intimidate or impede a law-enforcement officer engaged in the discharge of his duties.
 In a motion to dismiss the indictment, Wise contended Code § 18.2-460(C) was

overbroad and violated the First Amendment. The motion and supporting memorandum

asserted, in part, that the statute criminalized mere words, infringed upon a substantial amount of

protected speech, and did not require the Commonwealth to “prove that the words alleged to

have been spoken by [Wise] intimidated or frightened the person to whom they were directed.”

The trial judge heard argument on the motion prior to trial and overruled the motion.

The evidence at trial proved a police officer arrested Wise for breaking and entering a

residence, a violent felony offense listed in Code § 17.1-805(C) and incorporated in Code

§ 18.2-460(C). After a magistrate denied bail to Wise, Wise asked the police officer if he could

make a telephone call. When the officer told Wise he could do so at the jail, Wise responded

“Good. Because I’m going to use it to have you dusted.” The officer testified he questioned

Wise about his statement and his intent. When the officer told Wise he would obtain a warrant

for the threat, Wise then said he only intended to call the magistrate’s office to have the officer

terminated from his employment. Upon arriving at the jail, Wise said to the officer: “The first

thing . . . I’m going to do when I get out is find you. I know where you live, or, I see you all the

time in town. You’re mine.” Later, while in his cell, Wise said in the presence of another

officer, “I’m going to stab that fucking cop.”

Wise testified he was intoxicated during the incident and did not recall his statements.

When asked if he responded “yes” to the officer’s inquiry about whether “dusted” meant

“killed,” Wise said he did not recall his response. The officer testified on rebuttal, however, that

Wise said “yes” when the officer asked him if dusted “meant he was going to have [the officer]

killed.”

At the conclusion of the evidence, the trial judge found that Wise’s testimony was not

credible, that Wise was angry when he made the threats, and that Wise made threats of bodily

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harm to intimidate the officer in the performance of his duties. The trial judge, therefore,

convicted Wise of the felony of obstructing justice.

II.

Wise contends Code § 18.2-460(C) is facially unconstitutional in violation of the First

Amendment because it is not narrowly tailored to avoid criminalizing constitutionally protected

speech. He advances three specific arguments in support of this contention: (1) the statute “is

not limited . . . to only words having a tendency to incite the listener to immediate violence” and,

thus, it contravenes the “fighting words” doctrine articulated in Chaplinsky v. New Hampshire,

315 U.S. 568 (1942); (2) the statute’s “use of the term ‘threat’ . . . does not remove it from

[infringing upon] the class of protected speech”; and (3) the statute offends the First Amendment

because it “is limited to statements made to law enforcement.” The Commonwealth argues Code

§ 18.2-460(C) is facially valid because it does not reach a substantial amount of constitutionally

protected speech. We hold that the statute is not overbroad in contravention of the First

Amendment.

(A)

“As a general rule, if there is no constitutional defect in the application of the statute to a

litigant, he does not have standing to argue that it would be unconstitutional if applied . . . in

hypothetical situations . . . [; however, the Supreme Court has recognized a] limited exception

. . . for statutes that broadly prohibit speech protected by the First Amendment.” Ulster County

Court v. Allen, 442 U.S. 140, 155 (1979) (citing Broadrick v. Oklahoma, 413 U.S. 601, 610-16

(1973)). “The Court has repeatedly held that such a statute may be challenged on its face even

though a more narrowly drawn statute would be valid as applied to the party in the case before

it.” City Council v. Taxpayers for Vincent, 466 U.S. 789, 798-99 (1984). To invoke this

exception and to establish that Code § 18.2-460(C) is overly broad in violation of the First

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Amendment, Wise initially must show the statute “punishes a ‘substantial’ amount of protected

free speech, ‘judged in relation to the statute’s plainly legitimate sweep.’” Virginia v. Hicks, 539

U.S. 113, 118-19 (2003) (citation omitted). If the statute does not reach a substantial amount of

constitutionally protected speech, Wise’s overbreadth challenge fails. Id.; Hoffman Estates v.

Flipside, Hoffman Estates, Inc., 455 U.S. 489, 494-95 (1982).

Wise first contends the statute is unconstitutional “because it is not limited in its

application to only words having a tendency to incite the listener to immediate violence.” In

other words, he argues he cannot be punished under a statute that “criminalizes speech outside

the bounds of the classic ‘fighting words.’”

The Supreme Court long ago noted “that the right of free speech is not absolute at all

times and under all circumstances.” Chaplinsky, 315 U.S. at 571. Upholding a New Hampshire

statute, the Court held states have the authority to punish “certain well-defined and narrowly

limited classes of speech . . . includ[ing] the lewd and obscene, the profane, the libelous, and the

insulting or ‘fighting’ words — those which by their very utterance inflict injury or tend to incite

an immediate breach of the peace.” Id. at 571-72 (footnote omitted). The Court did not hold,

however, that those enumerated instances were exhaustive of the state’s authority under the

First Amendment. Indeed, as the following quotation demonstrates, the Supreme Court

specifically referred to Chaplinsky when later recognizing another limited class of speech

exempt from the protection of the First Amendment.

The protections afforded by the First Amendment . . . are not
absolute, and we have long recognized that the government may
regulate certain categories of expression consistent with the
Constitution. See, e.g., Chaplinsky v. New Hampshire, 315 U.S.
568, 571-572 (1942) (“There are certain well-defined and narrowly
limited classes of speech, the prevention and punishment of which
has never been thought to raise any Constitutional problem”). The
First Amendment permits “restrictions upon the content of speech
in a few limited areas, which are ‘of such slight social value as a
step to truth that any benefit that may be derived from them is
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 clearly outweighed by the social interest in order and morality.’”
R.A.V. v. City of St. Paul, [505 U.S. 377, 382-83 (1992)] (quoting
Chaplinsky v. New Hampshire, supra, at 572).

Thus, for example, a State may punish those words “which by
their very utterance inflict injury or tend to incite an immediate
breach of the peace.” Chaplinsky v. New Hampshire, supra, at
572; see also R.A.V. v. City of St. Paul, supra, at 383 (listing
limited areas where the First Amendment permits restrictions on
the content of speech). . . . And the First Amendment also permits
a State to ban a “true threat.” Watts v. United States, 394 U.S.
705, 708 (1969) (per curiam) (internal quotation marks omitted);
accord, R.A.V. v. City of St. Paul, supra, at 388 (“[T]hreats of
violence are outside the First Amendment”); Madsen v. Women’s
Health Center, Inc., 512 U.S. 753, 774 (1994); Schenck v. Pro-
Choice Network of Western N.Y., 519 U.S. 357, 373 (1997).

Virginia v. Black, 538 U.S. 343, 358-59 (2003).

“[T]hese areas of speech can, consistently with the First Amendment, be regulated

because of their constitutionally proscribable content (obscenity, defamation, etc.).” City of St.

Paul, 505 U.S. at 383. In other words, speech that contains a threat of physical harm “is

independently proscribable” under the First Amendment. Madsen, 512 U.S. at 774. See also

NAACP v. Claiborne Hardware Co., 458 U.S. 886, 916 (1982) (noting that “[t]he First

Amendment does not protect violence”); Milk Wagon Drivers Union of Chicago, Local 753 v.

Meadowmoor Dairies, Inc., 312 U.S. 287, 292-93 (1941) (explaining the Constitution does not

shelter speech that is made in the context of violence and that is indistinguishable from threats of

harm). The speech proscribed by Code § 18.2-460(C) falls within this limited class because it

encompasses only “threats of bodily harm.”

We hold, therefore, Code § 18.2-460(C) is not unconstitutional merely because, as Wise

argues, “it criminalizes the utterance of words without a requirement that those words would

incite an immediate breach of peace of the person to whom the words are directed.” The

“fighting words” doctrine of Chaplinsky is not the exclusive justification for the state’s power to

regulate expression. Black, 538 U.S. at 359. Subsection C of Code § 18.2-460 extends to speech

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only when it contains threats of bodily harm. See City of St. Paul, 505 U.S. at 388 (noting that

“threats of violence are outside the First Amendment”). For these reasons, we reject Wise’s

assertion that merely “[b]ecause the statute criminalizes speech outside the bounds of the classic

‘fighting words’ it is overly broad and violates the First Amendment.”1

Wise also contends “the use of the term ‘threat’ in [Code §] 18.2-460(C) does not remove

it from [infringing upon] the class of protected speech.” He argues the Supreme Court’s

reference in Chaplinsky to “threatening . . . revilings” as unprotected speech, 315 U.S. at 573,

was “dicta,” and he argues, in any event, the “Court was using the term ‘threats’ to refer to

words, which like ‘fighting words’ are of a type which, by their very nature, will provoke

violence.”

Wise’s argument is grounded in the premise that threats, just as fighting words, are

exempt from First Amendment protection only when they “have the ‘characteristic of plainly

tending to excite the addressee to a breach of the peace.’” Approving New Hampshire’s

construction of its statute, the Chaplinsky decision recognized the statute did “no more than

prohibit . . . ‘classical fighting words,’ words in current use less ‘classical’ but equally likely to

cause violence, . . . including . . . threats.” 315 U.S. at 573. As we have earlier explained, the

Supreme Court in Black was not limiting its holding to the Chaplinsky definitions but, rather,

referred to “fighting words” and “true threats” as distinct, separate exemptions from First

1
Wise relies upon City of Houston v. Hill, 482 U.S. 451, 462 (1987) (holding
unconstitutional a statute that “prohibits speech that ‘in any manner . . . interrupt[s]’ an officer”);
Lewis v. City of New Orleans, 415 U.S. 130, 131-32 (1974) (holding unconstitutionally broad a
statute prohibiting the use of “opprobrious language toward or with reference to any member of
the city police while in the actual performance of his duty”); Gooding, Warden v. Wilson, 405
U.S. 518, 519-20 (1972) (holding unconstitutional a statute barring the use of “opprobrious
words or abusive language, tending to cause a breach of the peace”); Terminello v. Chicago, 337
U.S. 1, 3 (1949) (striking as unconstitutional an ordinance prohibiting “improper noise, riot,
disturbance, breach of the peace, or diversion tending to a breach of the peace”). None of these
decisions concerned a statute proscribing threats or, as germane to this case, “threats of bodily
harm.”
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Amendment protections. Black, 538 U.S. at 359. The Court explained this latter category of

speech as follows:

“True threats” encompass those statements where the speaker
means to communicate a serious expression of an intent to commit
an act of unlawful violence to a particular individual or group of
individuals. See Watts v. United States, supra, at 708 (“political
hyberbole” is not a true threat); R.A.V. v. City of St. Paul, 505
U.S., at 388. The speaker need not actually intend to carry out the
threat. Rather, a prohibition on true threats “protect[s] individuals
from the fear of violence” and “from the disruption that fear
engenders,” in addition to protecting people “from the possibility
that the threatened violence will occur.” Ibid. Intimidation in the
constitutionally proscribable sense of the word is a type of true
threat, where a speaker directs a threat to a person or group of
persons with the intent of placing the victim in fear of bodily harm
or death.

Id. at 359-60.

Wise argues that “threats” as proscribed in Code § 18.2-460(C) do not fall within this

narrow category because the statute “does not limit its application to face-to-face statements”

and does not encompass only words with the “innate ability to incite immediate violence.” He

further argues that our holding in Polk v. Commonwealth, 4 Va. App. 590, 358 S.E.2d 770

(1987), “‘strips’ the word ‘threat’ of its First Amendment exemption” because it rendered the

listener’s response immaterial in a prosecution under the statute.

We are mindful of the Supreme Court’s admonition that regulation of speech must be

narrowly drawn.

The constitutional guarantees of freedom of speech forbid the
States to punish the use of words or language not within “narrowly
limited classes of speech.” Even as to such a class, however,
because “the line between speech unconditionally guaranteed and
speech which may legitimately be regulated, suppressed, or
punished is finely drawn,” “[i]n every case the power to regulate
must be so exercised as not, in attaining a permissible end, unduly
to infringe the protected freedom.” In other words, the statute
must be carefully drawn or be authoritatively construed to punish
only unprotected speech and not be susceptible of application to
protected expression. “Because First Amendment freedoms need
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 breathing space to survive, government may regulate in the area
only with narrow specificity.”

Gooding, Warden v. Wilson, 405 U.S. 518, 521-22 (1972) (citations omitted). Thus, the Court

has held that “[w]hat is a threat must be distinguished from what is constitutionally protected.”

Watts, 394 U.S. at 706 (finding defendant’s statement, “[i]f they ever make me carry a rifle the

first man I want to get in my sights is L.B.J.,” was “political hyperbole,” made during a public

rally, and not a “true threat”).

Proscribable threats are threats that “encompass those statements where the speaker

means to communicate a serious expression of an intent to commit an act of unlawful violence to

a particular individual or group of individuals.” Black, 538 U.S. at 359. Under this standard, the

government is not required to prove an “apparent present ability to carry [the threat] out . . .

[because] a threat causes disruptions, inconveniences, and costs even if its maker is unable to

carry through with it.” United States v. Fuller, 387 F.3d 643, 648 (7th Cir. 2004). Indeed, the

Supreme Court also has held that “[t]he speaker need not actually intend to carry out the threat”

to be proscribable. See Black, 538 U.S. at 359-60. “The reasons why threats of violence are

outside the First Amendment . . . [include] protecting individuals from the fear of violence, from

the disruption that fear engenders, and from the possibility that the threatened violence will

occur.” City of St. Paul, 505 U.S. at 388.

Code § 18.2-460(C) satisfies these concerns because the only speech it proscribes is

“threats of bodily harm.” The plain language of Code § 18.2-460(C) indicates the legislature

intended to proscribe knowing attempts to intimidate or impede individuals engaged in the

operation of the legal system. In Virginia, “[a] threat, in the criminal context, is recognized to be

a communication avowing an intent to injure another’s person or property.” Summerlin v.

Commonwealth, 37 Va. App. 288, 297, 557 S.E.2d 731, 736 (2002). Virginia courts must

consider a communication in its particular context when determining whether a speaker’s words
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constitute a true threat. See DiMaio v. Commonwealth, 46 Va. App. 755, 767, 621 S.E.2d 696,

702 (2005), aff’d, 272 Va. 504, 636 S.E.2d 456 (2006). In view of this requirement, the

proscription against threats of bodily harm complies with Watts and its progeny. See Watts, 394

U.S. at 708 (considering context in which threat was made, conditional nature of statement, and

reaction of the listeners to determine whether defendant’s statements were a “true threat”); see

also United States v. Lockhart, 382 F.3d 447, 451-52 (4th Cir. 2004) (applying Watts factors to

determine whether appellant’s statements constituted “true threat”); United States v. Cooper, 865

F.2d 83, 85 (4th Cir. 1989) (same). Our case decisions define the term “threat” narrowly to

avoid encompassing protected speech within its scope and, thus, Code § 18.2-460(C), proscribes

only true threats.

The appellant in Polk challenged the sufficiency of the evidence against him, arguing

words alone did not constitute a violation of former Code § 18.2-460(A). We rejected that

argument and held as follows:

The plain language of Code § 18.2-460(A) provides that threats
constitute a violation of the statute when they are knowingly made
in an attempt to intimidate or impede law enforcement officers
who are performing their duties. Thus, it is the threats made by the
offender, coupled with his intent, that constitute the offense. The
resulting effect of the offender’s threats, such as fear,
apprehension, or delay, is not an element of the crime defined in
Code § 18.2-460. By the express terms of the statute, it is
immaterial whether the officer is placed in fear or apprehension.
The offense is complete when the attempt to intimidate is made.

Polk, 4 Va. App. at 593-94, 358 S.E.2d at 772. Thus, we held that Polk’s statement that he

would kill the officer “was a threat as contemplated by the statute.” Id. at 594, 358 S.E.2d at

772. This holding does not diverge from the Watts requirement that the state prove a “true

threat.”

Wise further asserts that Code § 18.2-460(C) offends the First Amendment because of the

class of individuals it seeks to protect. He argues that criminalizing threats made against a
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“subpopulation of the at-large community” is troubling for two reasons: first, persons such as

law enforcement officers “may be less likely than other citizens to react with violence to certain

threats because of their training and experience”; second, the provisions of Code § 18.2-460(C)

do not propose a unique and compelling reason to protect the individuals identified in the statute.

He argues the select class of individuals identified in the statute “serves to reinforce the notion

that this section is not designed to prevent violence, the threat of violence, or the fear of violence,

but merely to criminalize the utterance of words directed at a selected audience.” These

arguments have no merit.

[The Supreme Court of Virginia has] previously described the
public policy underlying the obstruction of justice statute as
reflecting “the General Assembly’s intent to prohibit interference
with the administration of justice” and [to] protect[] “the public’s
safety and welfare.” City of Virginia Beach v. Harris, 259 Va.
220, 233, 523 S.E.2d 239, 246 (2000). The goal of this policy is
not to protect individuals from intimidation, but to protect the
public from a flawed legal system due to impaired prosecution of
criminals.

Rowan v. Tractor Supply Co., 263 Va. 209, 215, 599 S.E.2d 709, 712 (2002). Under Code

§ 18.2-460(C), “[d]ifferential treatment of threats against [law enforcement officers] . . . selects

nothing but special risks, not special messages.” Black, 538 U.S. at 384 (Souter, J., concurring

in part and dissenting in part).2

Wise relies on Marttila v. City of Lynchburg, 33 Va. App. 592, 535 S.E.2d 693 (2000), in

support of his assertion. In Marttila, the appellant challenged his conviction under Code

§ 18.2-416, Virginia’s breach of peace statute, which criminalizes “fighting words.” 33 Va. App.

at 598, 535 S.E.2d at 698. We recognized that when confronted with an individual’s use of

2
To the extent that Wise may be suggesting the statute improperly permits content
discrimination, we note that the Supreme Court of the United States has indicated “it would be
constitutional to ban only a particular type of threat.” Black, 538 U.S. at 362. Specifically, “the
First Amendment permits content discrimination ‘based on the very reasons why the particular
class of speech at issue . . . is proscribable.’” Id. (citation omitted).
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“fighting words,” police officers were required to exercise “greater restraint in their responses

than the average citizen.” Id. at 600, 535 S.E.2d at 697. Code § 18.2-460(C) aims, however, to

protect the integrity of the legal process, not any individual personally. Whether a speaker’s

words would provoke a law enforcement officer to a violent response is immaterial to the

application and validity of Code § 18.2-460(C). Marttila, therefore, is distinguishable from the

case at hand.

For these reasons, we hold that Code § 18.2-460(C) does not reach a substantial amount

of constitutionally protected speech and is not facially violative of the First Amendment.

III.

Wise further contends Code § 18.2-460(C) is unconstitutional as applied to him because

his statements, taken in context, do not rise to the level of “fighting words.” The Commonwealth

responds that “fighting words” are not necessary for a conviction under the statute and Code

§ 18.2-460(C) “is clearly and properly applicable” to Wise’s behavior. We agree with the

Commonwealth.

According to the officer’s testimony, Wise threatened to have him “dusted.” Wise said

“the first thing I’m going to do when I get out is find you. I know where you live, or, I see you

all the time in town. You’re mine.” Later, Wise was heard to say, “I’m going to stab that

fucking cop.” The trial judge found that Wise’s testimony was “not credible” and that this

evidence proved Wise meant he “was going to have [the officer] killed.”

The First Amendment is not implicated in this case because Wise made a threat of bodily

harm within the meaning of the statute. This was not a situation involving hyperbole analogous

to Watts and the context does not otherwise indicate Wise was making a political statement. The

trial judge found the evidence, in context, proved Wise intended to intimidate the officer by

threatening physical harm. See Selph v. Commonwealth, 48 Va. App. 426, 433-35, 632 S.E.2d

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24, 27-28 (2006) (holding intent to intimidate or threaten may be proved by circumstantial

evidence, such as one’s conduct or statements). See also Crawley v. Commonwealth, 29

Va. App. 372, 375, 512 S.E.2d 169, 170 (1999) (“credibility of a witness, the weight accorded

the testimony, and the inferences to be drawn from proven facts are matters solely for the fact

finder’s determination”). Wise’s threats of bodily harm were precisely prohibited by Code

§ 18.2-460(C); they were “true threats”; and they were not protected speech. Therefore, his “as

applied” challenge also fails.

IV.

In summary, we hold Code § 18.2-460(C) is not constitutionally overbroad and is not

unconstitutional as applied to the facts of this case. For these reasons, we affirm the conviction.

Affirmed.

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