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State v. Borowski (7/22/2016) ap-2510

State v. Borowski (7/22/2016) ap-2510


                The text            of   this opinion can be corrected before the opinion is published in the                                               

                Pacific Reporter                   .   Readers are encouraged to bring typographical or other formal                                                

                errors to the attention of the Clerk of the Appellate Courts:    

                                                             303 K Street, Anchorage, Alaska  99501  

                                                                                Fax:  (907) 264-0878  

                                                                   E-mail:  corrections@  

                                   IN THE COURT OF APPEALS OF THE STATE OF ALASKA                                                                      



                                                                                                                         Court of Appeals No. A-11688  


                                                                Appellant,                                           Trial Court No. 3AN-13-3567 CR  


                                                                                                                                         O  P  I  N  I  O  N  



                                                                Appellee.                                                     No. 2510 - July 22, 2016  


                                Appeal   from   the   District   Court,   Third   Judicial                                                                  District,  


                                Anchorage, Pamela Scott Washington, Judge.  


                                Appearances:                        Jason  B.  Frasco,  Assistant  District  Attorney,  


                                Anchorage, and Michael C. Geraghty, Attorney General, Juneau,  


                                for the Appellant.  Catherine Boruff, Assistant Public Defender,  


                                and  Quinlan  Steiner,  Public  Defender,  Anchorage,  for  the  




                                Before:  Mannheimer, Chief Judge, and Allard, Judge.  


                                Judge MANNHEIMER.  


                                During Anchorage Assemblyman Dick Traini's run for re-election in 2013,                                                                                          

Shane Kidd Borowski posted a message on Traini's                                                                                  election   Facebook page.                                        The  

message read, "Your going to get assassinated."                                                                     [sic]    

                                Based on this conduct, Borowski was charged with the crime of second-                                                                                       

degree harassment as defined in AS 11.61.120(a)(4).                                                                               This statute                    prohibits a person      

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from  making "[an]  electronic  communication  that  threatens  physical injury",  if  the  


person makes that communication "with intent to harass or annoy another person".  


                    The district court dismissed this charge before trial, ruling that Borowski's  


Facebook post was protected speech under the First Amendment.  


                    We conclude that the district court's ruling was mistaken in two respects.  


                    First,  in  making this  ruling,  the  district  court  improperly  made  several  


findings of fact - even though, as yet, no evidence has been presented in Borowski's  


case.  And in each of these findings, the court interpreted the circumstances in the light  


most favorable to Borowski.  


                    Second, the district court's ruling was based on the mistaken legal premise  


that Borowski could not be prosecuted for his Facebook post unless Borowski seriously  


intended to harm Traini.   As we explain in this opinion, the law is to the contrary:  a  


person can be prosecuted for communicating a threat of harm to another person even if  


the speaker does not seriously intend to carry out the threat, so long as the speaker is  


aware that people would reasonably interpret the words as a real threat of harm.  


                    For these reasons, we reverse the district court's ruling and reinstate the  


charge against Borowski.  


          Procedural history of this case, and details of the district court's ruling  


                    After  Borowski  was  charged  with  second-degree  harassment  for  his  


Facebook post, Borowski's attorney moved to dismiss this charge, arguing that Borowski  


could not be prosecuted because his Facebook post was protected speech under the First  


Amendment to the federal constitution.   The defense attorney argued that Borowski's  


communication was merely political hyperbole, and not a "true threat".  

                                                              - 2 -                                                          2510

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                    The district court granted Borowski's motion to dismiss.  The court took  


the position that, under the First Amendment, (1) a person can be criminally prosecuted  


for their speech only if that speech constitutes a "true threat", and (2) a person's speech  


constitutes  a  "true  threat"  only  if  "the  [person]  means  to  communicate  a  serious  


expression  of  [their]  intent  to  commit  an  act  of  unlawful  violence  to  a  particular  


individual or group".  


                    The court then proceeded to make several findings of fact - not based on  


any evidence, but solely on the parties' pleadings.  


                    First, the district court concluded that Borowski's Facebook post did not  


constitute  a  serious  expression  of  Borowski's  intent  to  commit  an  act  of  unlawful  


violence, because (according to the court) Borowski's words "conveyed no explicit or  


implicit threat ... that he himself would assassinate Traini."  (Emphasis added.)  


                    On this point, the court noted that there was no evidence that Borowski  


possessed weapons that might be used to assassinate Traini - a circumstance which,  


according to the district court, bolstered the court's conclusion that Borowski had not  


"meant to communicate a serious expression of an intent to commit an act of violence  


against Traini."  


                    Next,  the district court found that Borowski's post  on Traini's election  


Facebook page did not constitute a direct communication to Traini personally, but rather  


a "[political] statement ...  to [the] public."   The court concluded that "[Borowski's]  


choice of venue [for  his speech] does not indicate [an] intent to personally threaten  


Traini[,] nor does it indicate [that Borowski] had the sole intent to harass or annoy."  


                    Finally, the district court noted that when Borowski was confronted about  


his Facebook post, he repeatedly declared that he did not intend to seriously threaten  


Traini.  The court acknowledged that "many defendants will claim innocence", but the  

                                                               - 3 -                                                          2510

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court declared that "Borowski's repeated statements that he was just joking ... cannot be  


discounted entirely."  


                    Havingmade these findings in favor of Borowski (i.e., after interpretingthe  


situation  in  Borowski's  favor  on  these  various  points),   the  district   court   then  


paradoxically declared that even "[viewing] the facts in the light most favorable to the  


prosecution", there was no reasonable interpretation of the situation that would support  


the conclusion that Borowski's Facebook post was a "true threat" - i.e., no reasonable  


possibility that Borowski truly intended to threaten Traini with death.  The district court  


therefore dismissed the harassment charge.  


           Why we reverse the district court's ruling  


                    Because Borowski's motion to dismiss was filed in advance of trial (and in  


advance of any evidentiary hearing), the district court had not heard any testimony when  


the court made its ruling.  Borowski's motion was, in essence, a motion for judgement  


on the pleadings, or (conceivably) a motion for summary judgement - i.e., a claim that  


even if the State proved everything alleged in its criminal  complaint and supporting  


documents, any and all reasonable fact-finders would have to conclude that Borowski's  


Facebook post was protected speech.  


                    In such circumstances, a court is not supposed to make findings of fact.  


Instead, the court must view the facts in the light most favorable to the non-moving party  


- the party who will lose if the motion is granted.   In other words,  when the court  


evaluates whether the case should be dismissed, rather than making findings of fact, the  


court  must  simply  assume  that  the  non-moving  party  will  prove  all  of  its  factual  

                                                               - 4 -                                                          2510

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allegations if the case goes to trial, and that the jurors (having heard this proof) will draw                                                            


all reasonable inferences in favor of the non-moving party.                                                       

                         In Borowski's case,  in the concluding paragraph of the district  court's  


decision, the court declared that it was viewing the facts "in the light most favorable to  


the  prosecution".   But it is obvious from the court's analysis that the court failed  to  


follow this rule.                 Instead,  the court repeatedly interpreted the facts in the light most  


favorable to Borowski.  For example, with regard to Borowski's repeated statements that  


his  Facebook  post  was  merely  a  joke,  the  district  court  declared  that  Borowski's  


protestations  of  innocence  "[could  not]  be  discounted  entirely".                                                         But,  of  course,  if  


Borowski's case went to trial, the jury would be entitled to do just that.  


                         The district court's ruling was flawed in  one  other  respect:   the court  


applied the wrong law when it concluded that Borowski's Facebook post was protected  


speech under the First Amendment.  


                         The district court concluded that, under the First Amendment, words that  


communicate a threat of physical harm are protected from criminal prosecution unless  


the State proves that the speaker "[meant] to communicate a serious expression of [their]  


intent to commit an act of unlawful violence to a  particular individual or group".   At  


several points in its analysis, the district court either expressly or impliedly declared that  


the State was required to prove that Borowski truly intended to inflict harm on Traini.  


                         This is incorrect.   As many courts have held, the government need not  


prove that it was the speaker's subjective intent to carry out the threat.   Rather, it is  


       1     See,  e.g.,  Brandner v. Pease                     , 361 P.3d 915, 920 (Alaska 2015).                                

                                                                              - 5 -                                                                         2510

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sufficient if the speaker utters or transmits a communication with knowledge that the                                                                        

communication  will be viewed                              as a threat.         2  

                         The district court's erroneous ruling on this issue may have stemmed from  


the problematic language that the courts have used to describe  this  concept - "true  


threat".  This phrase is ambiguous:  as the district court's decision in Borowski's case  


illustrates,  the  words  "true  threat"  could  easily  be  misunderstood  to  mean  that  the  


speaker truly intended to carry out the threatened conduct.  But that is not the case.  


                         For years, the Alaska statutes have penalized threatening communications  


even without proof that the speaker actually intended to carry  out  the threat.                                                                            For  


example, it is a crime under AS 11.56.810(a)(1) for a person to falsely report that a bomb  


has been planted in a building or in a public area.  


                         In Commonwealth v. Beasley, __ A.3d __, 2016 WL 1719408 (Pa. 2016),  


the  Pennsylvania  Supreme  Court  was  recently  called  upon  to  interpret  that  state's  


"terroristic threatening" statute3  - a counterpart to our  AS  11.56.810.                                                                     The court  


explained that the government was required to prove that "the defendant made a threat  


to commit a crime of violence", and that the defendant communicated this threat "with  


the intent to terrorize another or with reckless disregard for the risk of causing terror."  


But, as the Pennsylvania court explained, "[n]either the ability to carry out the threat, nor  


a belief by the person threatened that the threat will be carried out, is an element of the  


offense.  ...  Rather, the harm sought to be prevented by the statute is the psychological  



distress that follows from an invasion of another's sense of personal security."  


      2      See Virginia v. Black                , 538 U.S. 343, 358-360;123                         S.Ct. 1536, 1547-48; 155 L.Ed.2d   

535 (2003);            State v. Moulton               , 78 A.3d 55, 64-65 (Conn. 2013);                              State v. Kilburn             , 84 P.3d     

1215, 1219-1222 (Wash. 2004) (and the cases cited there).                                                   



              18 Penn. Compiled Stats.  2706.  



            Beasley , __ A.3d __, 2016 WL 1719408 at *5.  

                                                                             - 6 -                                                                         2510

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                    Our harassment statute, AS 11.61.120(a)(4), is aimed at a similar societal  


interest.  Under this statute, a person commits the crime of second-degree harassment  


"if, with intent to harass or annoy another person, [the] person ... makes ... a telephone  


call or electronic communication that threatens physical injury or sexual contact".  This  


statute does not penalize the intent to inflict physical injury or non-consensual sexual  


contact.  Rather, it penalizes the act of communicating with another person in a way that  


the speaker knows will be understood as a threat to inflict these harms, if the speaker's  


intent in making this communication is to harass or annoy another person.  


                    Here, the government's case against Borowski would be established if the  


government proved (1) that Borowski knowingly made an electronic communication,  


(2) that this electronic communication  threatened physical injury,  (3) that Borowski  


knew that the communication would be viewed as a threat, and (4) that Borowski made  


the  communication  with  the  intent  of  harassing or  annoying another  person.                                           The  


government does not need to prove that Borowski truly intended to carry through with  


an act of physical violence against Assemblyman Traini.  



                    The  judgement  of  the  district  court  is  REVERSED,  and  this  case  is  


remanded to the district court for further proceedings on the criminal complaint.  

                                                              - 7 -                                                          2510

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