Threats in the line of duty: police officers and the First Amendment in State v. Valdivia and Connecticut v. Deloreto.

• Author: Sheley, Erin
• Position: Hawaii

The relationship between civilian and police officer occupies a unique position in First Amendment jurisprudence. The Supreme Court has intimated that words intended solely to harass ("fighting words"), excluded from First Amendment protection under Chaplinsky v. New Hampshire, may enjoy broader tolerance when the only listener is a police officer. (1) Some state supreme courts have adopted this dual standard when applying their state harassment laws, due to a trained police officer's higher tolerance for verbal provocation, as well as the societal interest in expressing dissatisfaction with police behavior. (2) When speech constitutes a "true threat" on a citizen's person, however, neither federal courts nor many states have found that the First Amendment calls for a higher tolerance for law enforcement victims than for civilians. (3)

In 2001, however, the Hawaiian Supreme Court found just such an individualized standard. In State v. Valdivia, it overturned the trial court's refusal to instruct that a victim's status as police officer was relevant to whether a defendant's threat to kill the victim constituted terroristic threatening. (4) Last year, the Connecticut Supreme Court explicitly rejected the Valdivia analysis and held, in Connecticut v. DeLoreto, that no higher standard should protect true threats when made to police. (5) The court stated that, while officers' training to resist provocation might warrant a narrower definition of unprotected "fighting words" when directed at them, they should be protected to the same degree as civilians from "serious expressions of intent to harm." (6) The Connecticut Supreme Court's decision is a positive shift from the dangerous ruling in Hawaii, which singled out the profession most commonly endangered by criminal violence for a lower degree of protection under the law.

1. CONNECTICUT V. DELORETO

   1. Facts and Procedural History

      In June of 2000, appellant Dante DeLoreto was involved in two separate incidents in which he threatened Connecticut police officers with bodily harm. During the first, on June 9, he drove by Sergeant Robert Labonte, who was off-duty and jogging, and made the statement "Faggot, pig, I'll kick your ass." (7) DeLoreto drove past Labonte on two other occasions--on the second, he shouted, "I'm going to kick your ass, punk" and on the third, he got out of his car and again shouted, "I'm going to kick your ass." (8) The incident ended with no physical altercation. On June 15, DeLoreto encountered Sergeant Andrew Power in a local convenience store. Power believed that DeLoreto was attempting to read his nametag, and said, "If you're trying to read my name, I'll tell you my name." (9) DeLoreto then stepped back and raised his fist, asking, "You have a problem with me?" As Power left the store, DeLoreto pursued him and stated, "I'm going to kick your punk ass." (10)

      DeLoreto was charged with two counts of breach of the peace in the second degree in violation of section 53a-181(a)(3) of the Connecticut General Statutes. (11) He moved to dismiss on the grounds that the statute was vague and overbroad, and that, when directed at police officers, his statements were constitutionally protected speech. His motions were denied, as was his motion for a judgment of acquittal on the same grounds, and he was convicted on both counts. The trial court ruled that 1) the defendant's statements constituted fighting words and were not protected speech, and that 2) section 53a-181 of the Connecticut General Statutes is neither unconstitutionally vague nor overbroad. (12) DeLoreto appealed to the Appellate Court and his case was transferred to the Connecticut Supreme Court.

   2. The Connecticut Supreme Court Decision

      The Connecticut Supreme Court upheld DeLoreto's conviction, with Chief Judge Sullivan writing for the four-judge majority. The court began by stating that it need not address the appellant's claim that the Connecticut constitution bestows greater protection on "fighting words" than does the First Amendment, because it could dispose of the claim on the alternate ground offered by the state: that the defendant's statements constituted "true threats." (13) Quoting the Supreme Court in Virginia v. Black, the court defined true threats as "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" even when "the speaker need not actually intend to carry out the threat." (14) A state may punish such statements without violating the First Amendment because they are "of such slight social value as a step to the truth that any benefit that may be derived from them is clearly outweighed by the social interest in order and morality." (15) The court adopted the objective standard articulated by the Ninth Circuit: "whether a reasonable person would have believed the threats, taken in context, were mere hyperbole or jokes and thus protected by the First Amendment." (16) It held that DeLoreto's statements to both officers, in light of his threatening manner to which several witnesses testified, constituted "true threats." (17) It also rejected the claim that First Amendment protection applies to threats that are not "imminent," citing the "fear of violence" and the "disruption that fear engenders" as reasons for the prohibition that did not depend upon imminence of the threat. (18) The court also noted that section 53a-181 likewise lacked an imminency requirement. (19)

      Finally, the court examined the defendant's claim that when an alleged threat is made to a police officer, a narrower standard should be necessary for conviction than would be the case for threatening remarks made to ordinary...