Justice Clarence Thomas was uncharacteristically upset with the other justices on the Supreme Court for declining to hear a case where a man in Kansas told a police officer's son his dad would end up "in a ditch."
The Kansas Supreme Court ruled the tacit threat as speech protected under the Constitution's First Amendment.
"In my view, the Constitution likely permits States to criminalize threats even in the absence of any intent to intimidate," Thomas wrote in a more than five-page dissent. "It appears to follow that threats of violence made in reckless disregard of causing fear may be prohibited."
Kansas v. Boettger asked the Supreme Court to rule on whether the First Amendment keeps states from criminalizing a communicated intention to commit an act of violence in without regard to another person being in fear.
Timothy Boettger got angry after police refused to investigate who killed his daughter's dog. In retaliation, Boettger later threatened the son of one of the responding officers and his father with violence.
"Boettger told another employee that 'these people . . . might find themselves dead in a ditch somewhere,'" according to a petition given to the Supreme Court read. "Boettger approached him with clenched fists and visibly shaking, saying, 'You're the man I'm looking for.'"
Boettger was convicted for making a "reckless criminal threat," despite denying he threatened the officer or his son. The conviction was later overturned by the Kansas Supreme Court, which called the state's law that criminalized threats in "reckless disregard" too broad and was not a "true threat," a normal requirement for First Amendment cases.
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