Two federal judges have called into question a Louisiana law that makes it a felony crime to threaten a public official, saying the law is unconstitutionally broad and potentially hampers speech protected by the First Amendment.
In the past several months, one judge found the statute unconstitutional, while a second judge strongly criticized it in a court ruling.
The cases grew out of incidents where law enforcement officers arrested somebody at least in part for the crime of threatening their jobs.
"A statute that criminalizes entirely nonviolent threats to an officer's employment is so patently and obviously unconstitutional that no reasonable officer could believe it to have been valid. Time and time again, the Supreme Court has upheld the right of citizens to criticize the police," U.S. District Court Chief Judge Brian Jackson wrote about a Livingston Parish case in September.
But Attorney General Jeff Landry is defending the law, saying the federal courts have misinterpreted a statute that serves an important role in protecting public officials from words that amount to bribery or extortion. He has appealed the issue to the 5th U.S. Circuit Court of Appeals.
In one case from Tangipahoa Parish, a Hammond man was accused of threatening to shoot his neighbor. When deputies arrived to investigate, the lawsuit alleges they put Travis Seals in handcuffs and pepper-sprayed him in the face. Seals threatened to file a complaint against the deputies, and allegedly said he would get them fired, for which he was booked with public intimidation, aggravated assault and other counts.
In a case from Livingston Parish, a Denham Springs man was arrested after allegedly objecting to a sheriff's deputy calling him a vulgar term while investigating a reckless driving complaint involving a neighbor. Police reports say William Aubin Jr. told the deputy, "I'm calling your supervisor; I'm going to have your job; I'm gonna get you fired."
The felony public intimidation law prohibits any person from using "violence, force or threats ... with the intent to influence (a person's) conduct in relation to his position, employment or duty." The law is meant to protect public employees, jurors, trial witnesses, election officials and school bus drivers. It carries a maximum penalty of five years hard labor.
U.S. District Judge Jane Triche Milazzo, who serves in the New Orleans-based Eastern District of Louisiana, ruled in July in the Tangipahoa Parish case that the law is unconstitutionally broad because it criminalizes both "true threats" and speech protected by the First Amendment.
"On its face, (the law) criminalizes the comments at issue here, as well as other threats to engage in lawful conduct, such as criticizing a police officer, writing a letter to a newspaper, filing a lawsuit, voting for an official's opponent or filing an ethics complaint," she wrote.
Jackson, the Baton Rouge judge in the Middle District presiding over the Livingston Parish case, has put off ruling on the constitutional question because the appeals court is expected to decide the issue. He nonetheless gave the law a strong rebuke in a ruling that found Aubin was falsely arrested by former Deputy William Durkin. Durkin did not respond to two messages left for comment.
"The right to criticize police without risk of arrest distinguishes a democracy from a police state," he wrote.
Jackson cites in his ruling the types of vulgar and threatening comments that the U.S. Supreme Court has said are protected, including "White son of a b****, I'll kill you" and "You son of a b*****, if you ever put your hands on me again, I'll cut you to pieces."
In both cases, the 21st Judicial District Attorney's Office declined to prosecute the men on any charges. In the Livingston case, an assistant district attorney wrote in the file, "As frustrating as it must have been for the deputy, I don't think it warrants felony prosecution," District Attorney Scott Perrilloux said.
Perrilloux said public intimidation is an uncommon crime for someone to be arrested on in his three-parish area of Livingston, Tangipahoa and St. Helena. Typically, it is used in drunken driving cases when a person getting arrested claims he or she knows an important person and will get the officer fired, he said.
The prosecutor said he thinks there is a rational basis for the statute, in that it prohibits people from threatening public officials or jurors. But asked whether losing the law would hamper his office, he concluded that other statutes could usually be used in its place.
“I think there would be other ways of addressing the same type of conduct if we needed to," he said, citing laws prohibiting witness intimidation and resisting arrest.
Landry has intervened in both cases to defend the law, which dates to 1942 and has never faced a successful constitutional challenge, according to one of his briefs.
Relying on a Louisiana Supreme Court case from 1959, the attorney general argues the law does not prohibit free speech. Rather, it refers only to a narrow range of comments made with an intent similar to giving a bribe or blackmail. That type of speech is not protected, he argues.
"A nonviolent threat communicated to a public employee in order for the offender to receive something to which he is not entitled as a matter of right will, almost always, be indistinguishable from extortion," the AG's office said in an appeals filing.
Livingston Parish Sheriff Jason Ard has joined Landry's appeal. In briefs, Ard says the law is necessary to "allow public officials, including police officers, to carry out their duties without threats of harm to their person, property, employment, or otherwise."
"It is not the speech that is criminalized, but rather it is the action of trying to influence a deputy’s conduct in performing his duties that is prohibited, whether the effort to intimidate is confected through actions or words," Ard's brief says in the statute's defense.
About the arrest specifically questioned in the lawsuit, the Livingston sheriff's office argued in court briefs that it was appropriate for Durkin to arrest Aubin on public intimidation because the deputy felt the man's " threats against his employment were intended to influence his behavior" and it kept the deputy from being able to get in contact with the original complainant.
In briefs, the Tangipahoa Parish Sheriff's Office also defended the arrest of Seals by deputies Jon-Rene Sanjurjo, Brandon McBee, and Jessica Murray. The office said in court filings that a deputy — who appears to be Sanjurjo in a police report — was justified in using pepper spray against Seals while he was handcuffed because he was violently resisting arrest. McBee declined comment, citing department policy. Sanjurjo and Murray did not respond to phone calls seeking comment.
Kearney Loughlin, attorney for Seals and Aubin, said he wants to see a clear ruling from the higher court that says the public intimidation law is unconstitutional.
"A lot of these cases are people behaving boorishly or rudely, and I don't think that's a good idea," he said. "But the fact of the matter is that it's not a crime."