#28086-a-SLZ
2017 S.D. 76
IN THE SUPREME COURT
OF THE
STATE OF SOUTH DAKOTA
****
STATE OF SOUTH DAKOTA, Plaintiff and Appellee,
vs.
EDWARD JAMES DRASKOVICH, Defendant and Appellant.
****
APPEAL FROM THE CIRCUIT COURT OF
THE SECOND JUDICIAL CIRCUIT
MINNEHAHA COUNTY, SOUTH DAKOTA
****
THE HONORABLE SUSAN M. SABERS
Judge
****
MARTY J. JACKLEY
Attorney General
JOHN M. STROHMAN
Assistant Attorney General
Pierre, South Dakota Attorneys for plaintiff and
appellee.
BEAU J. BLOUIN of
Minnehaha County
Public Defender’s Office
Sioux Falls, South Dakota Attorneys for defendant and
appellant.
****
ARGUED OCTOBER 3, 2017
OPINION FILED 11/21/17
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ZINTER, Justice
[¶1.] Edward Draskovich was convicted of threatening a judicial officer and
disorderly conduct as a result of statements he made in the Minnehaha County
Courthouse. The circuit court ruled the statements were “true threats” rather than
speech protected by the First Amendment. We affirm.
Facts and Procedural History
[¶2.] The facts are largely undisputed. Draskovich was convicted in
magistrate court of driving under the influence of alcohol, and his pro se appeal to
the circuit court was dismissed after he failed to file a brief. On March 7, 2016, he
went to the Minnehaha County Courthouse to inquire about a work permit and to
collect the bond he had posted. He entered the clerk of courts office and spoke about
his bond with accounting clerk April Allenstein. Allenstein had seen Draskovich in
the office on prior occasions, and she testified that he was usually “yelling or
speaking loudly” because he was often angry about his case. She described him as
“angry and frustrated” when he visited on March 7. Allenstein informed
Draskovich that she could not return his bond because the order to do so was not
yet signed by the judge. Draskovich then went to another counter to ask about a
work permit to drive an automobile. Allenstein testified that she did not “think he
got a good answer down there either.”
[¶3.] After receiving these unfavorable responses, Draskovich returned to
Allenstein and proclaimed: “Now I see why people shoot up courthouses.”
Draskovich then stepped toward the door, opened it, and said: “Not that I would.”
Allenstein was “startled and alarmed.” She said Draskovich had never made a
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statement like that before. As soon as Draskovich left the office, Allenstein
informed security of the incident.
[¶4.] Draskovich then went upstairs to the court-administration office to
obtain other documents. He spoke with Brittan Anderson. Anderson said
Draskovich was “agitated.” When she informed Draskovich that he would have to
get copies of his documents from the clerk of courts office, Draskovich began to
complain that Judge Mark Salter would not give Draskovich his work permit.1
Anderson attempted to diffuse his anger by informing him that it was not Judge
Salter’s fault because Draskovich could not receive a work permit by law until he
completed treatment. Draskovich then proclaimed, “Well, that deserves 180 pounds
of lead between the eyes,” and he left the office. Anderson informed the court
administrator of the incident, and security arrived to take her statement. At trial,
Anderson testified that she was shocked and surprised by Draskovich’s statement.
She believed that the statement was directed at Judge Salter. She testified that “no
one has ever threatened a judge like that before” and that she had “never heard an
actual threat.”
[¶5.] The following day, Detective Adam Zishka called Draskovich to discuss
the incidents. Draskovich was still angry and frustrated. With respect to the
statement made to Allenstein, Draskovich yelled:
And you wonder why people f***ing come in to these buildings
and f***ing go postal and start shooting people . . . because their
f***ing dealing with this kind of bull****! That’s not f***ing
threatening anybody, that’s stating the f***ing facts of the
world!
1. Judge Salter had presided over Draskovich’s appeal from magistrate court.
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Draskovich also conceded that he had made the statement to Anderson, but
clarified that what he actually said was: “There’s a good cure for that [inability to
issue a work permit] and it’s 140 grains of lead.”
[¶6.] Draskovich was charged with threatening a judicial officer based on
his statement in the court administrator’s office. See SDCL 22-11-15. He was also
charged with disorderly conduct based on his statement in the clerk of courts office.
See SDCL 22-18-35(1).
[¶7.] At the conclusion of a court trial, the circuit court found Draskovich
guilty of both charges. The court ruled his statements were “true threats” rather
than speech that was protected by the First Amendment. On appeal, Draskovich
argues his statements were protected speech that could not be the basis for criminal
conduct.
Decision
[¶8.] A statute that “makes criminal a form of pure speech[ ] must be
interpreted with the commands of the First Amendment clearly in mind. What is a
threat must be distinguished from what is constitutionally protected speech.” Watts
v. United States, 394 U.S. 705, 707, 89 S. Ct. 1399, 1401, 22 L. Ed. 2d 664 (1969)
(per curiam). A statement that constitutes a “true threat” does not fall within the
realm of protected speech. See Austad v. S.D. Bd. of Pardons & Paroles, 2006 S.D.
65, ¶ 10, 719 N.W.2d 760, 764-65. True threats are
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. The
speaker need not actually intend to carry out the threat.
Rather, a prohibition on true threats “protects individuals from
the fear of violence” and “from the disruption that fear
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engenders,” in addition to protecting people “from the possibility
that the threatened violence will occur.”
Virginia v. Black, 538 U.S. 343, 359-60, 123 S. Ct. 1536, 1548, 155 L. Ed. 2d 535
(2003) (citations omitted) (quoting R.A.V. v. City of St. Paul, 505 U.S. 377, 388,
112 S. Ct. 2538, 2546, 120 L. Ed. 2d 305 (1992)).
[¶9.] To determine whether a statement constitutes a true threat, we
“analyze an alleged threat ‘in the light of its entire factual context’ and decide
whether the recipient of the alleged threat could reasonably conclude that it
expresses ‘a determination or intent to injure presently or in the future.’” Austad,
2006 S.D. 65, ¶ 13, 719 N.W.2d at 766 (quoting United States v. Dinwiddie, 76 F.3d
913, 925 (8th Cir. 1996)). To determine whether the recipient could reasonably
conclude that the statement was a true threat, we consider: (1) “the reaction of
those who heard the alleged threat”; (2) “whether the threat was conditional”; (3)
“whether the person who made the alleged threat communicated it directly to the
object of the threat”; (4) “whether the speaker had a history of making threats
against the person purportedly threatened”; and (5) “whether the recipient had a
reason to believe that the speaker had a propensity to engage in violence.” Doe v.
Pulaski Cty. Special Sch. Dist., 306 F.3d 616, 623 (8th Cir. 2002) (en banc); see also
People ex rel. C.C.H., 2002 S.D. 113, ¶ 14, 651 N.W.2d 702, 707.2
2. In People ex rel. C.C.H., 2002 S.D. 113, 651 N.W.2d 702, we applied the
Eighth Circuit panel’s list of factors in Doe. See id. ¶ 14, 651 N.W.2d at 707.
After C.C.H. was released, the en banc court vacated the panel’s decision.
Doe, 306 F.3d at 623-24 (en banc), vacating 263 F.3d 833 (8th Cir. 2001). The
factors enumerated above reflect the en banc court’s view.
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[¶10.] We conclude that Draskovich’s statements constituted true threats
under the relevant factors. First, both witnesses who interacted with Draskovich in
the courthouse reacted as if the statements were true threats. Allenstein testified
that she was “very startled and alarmed” by Draskovich’s statement and that she
immediately contacted security. Anderson testified she reacted with “shock” and
“surprise” to the statement in her office because she had never heard someone
threaten a judge like that before. She also reported the matter to her supervisor,
and security was contacted. Neither witness considered Draskovich’s statements
empty threats.
[¶11.] Judge Salter also viewed the statement in the administration office as
a true threat. Judge Salter testified that he took Draskovich’s statement as “a
threat to fire a round, a rifle round or some sort of round having a certain grain
bullet, between my eyes.” He testified that this was the only time he had received
such a threat. And when asked how that statement impacted him, he said: “I was
concerned. And I made a conscious effort to be careful with everything I did and
everything around me, in every aspect of my life.” These reactions were not
unreasonable. As Draskovich’s counsel conceded at oral argument, no one thought
Draskovich was “kidding around.”
[¶12.] Nevertheless, Draskovich points out that despite the reactions of the
recipients, he was not stopped by security or immediately apprehended. Draskovich
argues that this “suggests law enforcement did not view Draskovich’s statements as
constituting a serious or immediate threat to anyone’s safety.” He likens his case to
C.C.H., where an eighth-grade student told a teacher he wanted to kill another
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student. 2002 S.D. 113, ¶¶ 4-5, 651 N.W.2d at 704. We noted that despite the
teacher’s subjective fear, she let both students leave class. Additionally, the school’s
administration did not quickly respond, which supported our conclusion that the
defendant’s statements were not true threats. Id. ¶¶ 16-17, 651 N.W.2d at 707.
[¶13.] However, in C.C.H., the testimony of the recipient of the statements
was deemed not “compelling,” and the case was largely decided on the other factors.
Id. ¶ 17. Moreover, that case involved the statements of an eighth grader, and we
noted that “[h]ostility and competition among our youth is natural.” Id. ¶ 18. In
contrast, this case involved recipients who were accustomed to dealing with the
public in difficult situations yet were nevertheless startled, shocked, and alarmed
by Draskovich’s statements. Additionally, Draskovich was not an eighth-grade
schoolchild; he was a fifty-five-year-old adult who was becoming increasingly angry
and agitated at court employees. Therefore, the fact that Draskovich was not
immediately apprehended did not make his statements protected speech. The
statements were threatening enough to call security and warrant an immediate
investigation.
[¶14.] Draskovich’s statements were also unconditional. The statement made
in Watts is illustrative of a conditional threat. There, in the course of a political
protest, the defendant stated: “If they ever make me carry a rifle the first man I
want to get in my sights is L.B.J.” Watts, 394 U.S. at 706, 89 S. Ct. at 1400-01. The
Supreme Court held this statement was of a conditional nature because it depended
upon “induction into the Armed Forces—which [the defendant] vowed would never
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occur.” Id. at 706-07, 89 S. Ct. at 1401. The Court also noted that several people
laughed in response. Id. at 707.
[¶15.] In contrast, Draskovich was angry and agitated. Additionally, his
statement, “Now I see why people shoot up courthouses,” implied direct action. The
statement was not conditioned on a future event. We acknowledge that Draskovich
combined his shooting statement with a departing statement, “Not that I would.”
But his coy way of combining the statements did not alleviate Allenstein’s concern—
it only exacerbated Allenstein’s fear that the threatened violence could possibly
occur. Draskovich’s other statement was clearly unconditional. It directly stated
that because he could not get a work permit, someone deserved “180 pound of lead
between the eyes.”
[¶16.] Draskovich’s statement in the clerk of courts office was also directly
communicated to the object of the threat. Although it was not aimed at any
particular person, context is important. Draskovich was not getting the answers he
wanted from the court staff in the clerk of courts office, and he was becoming angry.
In this context, it was certainly reasonable for Allenstein to believe that Draskovich
was directly communicating this threat to her because she was one of the people
who gave him the news he did not want to hear. We acknowledge that the
statement in the court-administration office was not directly communicated to
Judge Salter,3 but that does not dispel its threatening nature. The statement still
3. Draskovich contends his statement in the administration office was
ambiguous because it was not clear whether it was directed at Judge Salter
or those who enacted the law. However, context is important. Draskovich
(continued . . .)
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instilled fear into those who were present. Moreover, because it was made to a
court employee, the statement would have most certainly been communicated to
Judge Salter.
[¶17.] We finally observe that although Draskovich did not have a history of
making threats, the recipients had reason to believe that Draskovich could engage
in violence on this occasion. There is no dispute that like his prior visits,
Draskovich was visibly agitated, frustrated, and angry; and both witnesses believed
he was capable of engaging in violence. Allenstein testified that “the way he looked
and the words that he spoke, it wasn’t just an empty threat.” Based on
Draskovich’s “history and his behavior the several times” she had encountered
Draskovich before, she believed his anger was escalating and that “it just seemed
like he was capable.”
[¶18.] We conclude that in light of Draskovich’s escalating anger at court
staff and Judge Salter, Draskovich’s statements to employees in the courthouse
were not protected speech. In this context, a reasonable recipient would view
Draskovich’s statements as “a serious expression of an intent to commit an act of
unlawful violence” against court staff and Judge Salter. See Black, 538 U.S. at 359,
________________________
(. . . continued)
was expressing his anger with Judge Salter, and as Anderson’s testimony
reveals, she interpreted the statement as a threat to Judge Salter.
At oral argument, counsel also contended that this statement “requires too
much interpretation” and “too much reading into the terms.” However, it is
easy to look back on a verbal statement, reduce it to writing, and make a
post-hoc determination that the statement was unclear. What matters is
whether a reasonable recipient would, at the time the statement was made,
understand it as a “serious expression of an intent to commit an act of
unlawful violence to a particular individual or group of individuals.” See
Black, 538 U.S. at 359, 123 S. Ct. at 1548.
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123 S. Ct. at 1548. Draskovich may not have actually intended to carry out the
threat, but the “prohibition on true threats ‘protects 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.’” Id. at 359-60
(quoting R.A.V., 505 U.S. at 388, 112 S. Ct. at 2546). Each of these protections is
implicated here. We affirm.
[¶19.] GILBERTSON, Chief Justice, and SEVERSON and KERN, Justices,
and WILBUR, Retired Justice, concur.
[¶20.] JENSEN, Justice, not having been a member of the Court at the time
this action was submitted to the Court, did not participate.
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