Matthew Townsend Motion to Dismiss by Pro Libertate

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Aaron J. Tribble ISB#8951 Eagle Law Center 1191 E. Iron Eagle Dr. Suite 200 Eagle, ID 83616 T: 208-938-9500 F: 208-938-9504 E: aaron@eaglelawcenter.com Attorney for Defendant

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IN THE DISTRICT COURT OF THE FOURTH JUDICIAL DISTRICT OF

THE STATE OF IDAHO, IN AND FOR THE COUNTY OF ADA

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______________________________________

STATE OF IDAHO,

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) CASE NO. CR-FE-2015-0004043 ) ) Plaintiff, ) ) vs. ) MEMORANDUM IN SUPPORT OF ) MOTION TO DISMISS MATTHEW TOWNSEND, ) ) Defendant. ) ______________________________________ )

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The Defendant, by and through his attorney Aaron J. Tribble, supports his motion with the following: BACKGROUND FACTS On January 30, 2015, Matthew Townsend was standing on a street corner in Meridian,

Idaho. Mr. Townsend crossed the intersection at Franklin and Main and was observed by Officer

Richard Brockbank of the Meridian PD. Officer Brockbank stated that he approached Mr.

Townsend in order to educate Mr. Townsend on crosswalk laws because he believed that Mr. -1-

MEMORANDUM IN SUPPORT OF MOTION TO DISMISS

Townsend had jaywalked. A conversation ensued, and Mr. Townsend eventually walked away.

Believing he was lawfully detaining Mr. Townsend rather than just educating him, Officer

Brockbank arrested Mr. Townsend for restisting and obstructing, a violation of Idaho Code Â§ 18-

705.

Frustrated and angry on March 18, 2015, Mr. Townsend allegedly posted a status update

on Facebook and tagged several members of Officer Richard Brockbankâ&#x20AC;&#x2122;s family, the Ada

County Courthouse, local TV and radio stations, and many other unknown individuals. The

Facebook post is attached to an affidavit in support. This facebook post and words contained

therein are the only subject of this case.1 In this alleged facebook post was written:

Tomorrow, I go to pretrial at the Ada County Courthouse to claim that my charge of "resisting or obstructing" a supposed jaywalking investigation after Meridian Police Department - Idaho officer RICHARD BROCKBANK refused to charge me after I demanded that he charge me for the "crime" that he supposedly stopped me for, is terroristic in nature and in other ways unconstitutional and criminal.

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The cop refused to charge me for said "crime" that he was accusing me of and so I walked away... and was soon after kidnapped and hauled away by several costumed State goons for my disrespect of officer Brockbank's harassment towards me.

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I'm hoping that the REAL reason I was harassed to begin with will be released by the State rather than I... we shall see. ;)

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If my case isn't dismissed tomorrow upon my request, I will begin a nonviolent and legal shame campaign that will be remembered. HOA "upsets", protests in the aggressors neighborhoods (I know where you all live- this is notification of knowledge and future protests, not a threat), mailers, door hangers, online ads, local and (hopefully) national media- I've done it before and I can do it again as well as other peaceful, but... annoying avenues will commence.

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The State has 3 options: 1.) Drop charges and leave me alone 2.) Endure my non-violent retaliation (do you want to be the focus of my rage?) 3.) Kill me and deal with those that know, love and care about me.

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Make your choice. 26 THE STATE CANNOT PROVE ONE ELEMENT OF THE CHARGE 27 28

A copy of this facebook post was previously provided to the Court via the Affidavit of Aaron Tribble in Support of Motion in Limine filed on August 25, 2015. -2-

MEMORANDUM IN SUPPORT OF MOTION TO DISMISS

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Mr. Townsend has been charged with witness intimidation, a violation of Idaho Code § 18-2604(3). Idaho Criminal Jury Instruction 1266 (Intimidating a Witness) reads as follows:

3 In order for the defendant to be guilty of Intimidating a Witness, the state must prove each of the following: 1. On or about [date] 2. in the state of Idaho 3. the defendant [name] 4. [by direct or indirect force] [or] [by threats to [a person] [or] [property]] [or] [by any manner] 5. willfully 6.[intimidated] [influenced] [impeded] [deterred] [threatened] [harassed] [obstructed] [or] [prevented] 7. [a witness] [a person who might be called as a witness] [or] [any person the defendant believed might be called as a witness] 8. in any [civil proceeding] [criminal proceeding] [juvenile evidentiary hearing] 9. with the intent to [intimidate] [influence] [impede] [deter] [threaten] [harass] [obstruct] [or [prevent] from testifying freely, fully and truthfully in that [proceeding] [hearing].

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So, in order for the State to prove their case against Mr. Townsend, they must prove

beyond a reasonable doubt that Mr. Townsend made the alleged Facebook post “with the intent to

intimidate…[Officer Brockbank] from testifying freely, fully and truthfully”.2

however, the State has provided only Mr. Townsend’s alleged facebook post as their evidence of

intimidation/harassment; nothing else. They have no other witnessesMr. Townsend requests this

Court conduct an analysis of this post to conclude that these statements contain absolutely

nothing that even so hints or suggests that Officer Brockbank alter his testimony.

In discovery

To the contrary, Mr. Townsend was directing his comments toward the State, not

Brockbank, because he said “[t]he State has 3 options”. In fact, Officer Brockbank was only

mentioned in the beginning of Mr. Townsend’s post when he was describing the circumstances

that landed him in court.

demands by stating “If my case isn't dismissed tomorrow upon my request”.

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After talking about the circumstances, Mr. Townsend began his

Completely absent from Mr. Townsend’s Facebook comments was any mention of 2

See Information filed in this matter in April 17, 2015. -3-

MEMORANDUM IN SUPPORT OF MOTION TO DISMISS

testimony by Officer Brockbank. In his comments, Mr. Townsend was quite clear that his

demands were directed at the “the State” because he says he will demand that his case be

dismissed and he outlines the steps that he will take if this doesn’t occur. Whether or not there is

any illegality in these comments is not the issue before this Court. This Court must determine

whether or not there is any actual evidence of an intent by Mr. Townsend to manipulate Officer

Brockbanks testimony.

Although the State may argue that Mr. Townsend was merely aware of Officer

Brockbank’s status as a witness, Mr. Townsend’s awareness of that fact does not imply that his

intent was to alter Brockbank’s testimony.

There needs to be some evidence linking Mr.

Townsend’s comments to Brockbank’s potential testimony. The State has nothing to offer.

Mr. Townsend’s Facebook post very clearly contains no mention of testimony, no threats

relating to testimony, or anything of the sort. The State has no witnesses that can tie these

statements to any potential testimony of Officer Brockbank. As such, the Court as a matter of law

should dismiss this case under I.C.R. 48 (a)(2) because the State simply cannot present any

evidence of intent to affect testimony, much less prove such an element beyond a reasonable

doubt. A jury and this Court should be spared the needless exercise of a trial when such a lack of

evidence is apparent.

IDAHO’S WITNESS INTIMIDATION STATUTE IS UNCONSITUTIONAL AS

APPLIED TO MR. TOWNSEND’S COMMENTS

Mr. Townsend’s comments on Facebook are constitutionally protected free speech. In

this case, Mr. Townsend has been charged with INTIMIDATING, IMPEDING, INFLUENCING,

OR PREVENTING THE ATTENDANCE OF A WITNESS, a Felony under I.C. § 18-2604(3).

The text of I.C. § 18-2604(3) reads as follows:

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Any person who, by direct or indirect force, or by any threats to person or property, or by any manner wilfully intimidates, influences, impedes, deters, threatens, harasses, obstructs or prevents, a witness, including a child witness, or any person who may be called as a witness or any person he believes may be called as a witness in any criminal proceeding or juvenile evidentiary hearing from testifying freely, fully and truthfully in that criminal proceeding or juvenile evidentiary hearing is guilty of a felony. -4-

MEMORANDUM IN SUPPORT OF MOTION TO DISMISS

However, the plain text of this statute is constitutionally overbroad because it can be

applied (as it is in this case) to chill or inhibit speech protected by the First Amendment of the

United States Constitution. The overbreadth doctrine recognizes that a statute which has the effect

or the potential effect of chilling or inhibiting speech protected by the First Amendment is

unconstitutional.

constitutionality of a statute based on overbreadth take place in a two-part test. State v.

Hammersley, 134 Idaho 1285 (2000).

impermissibly overbroad, the Hammersley court cited State v. Bitt, 118 Idaho 584, 798 P.2d 43

(1990), as developing the following analysis:

State v. Casey, 125 Idaho 856 (1994). In Idaho, challenges to the

To determine whether a statute or ordinance is

First, the court must ask whether the ordinance regulates constitutionally protected conduct. If the answer to this first step is in the affirmative, then the next step asks whether the ordinance precludes a significant amount of the constitutionally protected conduct. If the answer to this step is also in the affirmative, then the ordinance is quite likely overbroad and must be restricted in its application or rewritten. But if the ordinance does not preclude a significant amount of such conduct, then the next and last step is to ask whether (a) the ordinance gives notice to those who are subject to it, and (b) whether the ordinance contains guidelines and imposes sufficient discretion on those who must enforce the ordinance.

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In this case, the statute at issue, I.C. § 18-2604(3), quite clearly is being used to regulate

speech, conduct protected under the Idaho and U.S. Constitutions. See Hammersley at 1289.

Although the terms “intimidates, influences, impedes, deters, threatens, harasses, obstructs or

prevents” can apply to actions, they also can apply to speech. One can intimidate through speech,

influence through speech, impede or deter through speech, or harass through speech. One may

threaten others through his or her speech. Most importantly, the State is using this statute against

Mr. Townsend because of the alleged comments in this Facebook post.3 So the first part of the

Hammersley test is satisfied because this statute regulates constitutionally protected conduct.

Next under the Hammersley test, the Court must determine whether this statute precludes

a significant amount of the constitutionally protected conduct.

Idaho Code § 18-2604(3)

precludes “any threats to person or property, or by any manner” which “intimidates, influences,

See Affidavit of Aaron Tribble in Support of Motion in Limine -5-

MEMORANDUM IN SUPPORT OF MOTION TO DISMISS

impedes, deters, threatens, harasses, obstructs or prevents.” As one can see, the language of the

statute is so broad that almost any peep out of a person’s mouth could land one in trouble if it is

directed at a witness. Thus, a significant amount of speech is precluded by I.C. § 18-2504(3)

because a person could not even complain (as Mr. Townsend has done) about his treatment when

it is directed at, or heard by, a witness.

Finally, the last prong of the Hammersley test fails as well. Nowhere in the statute is there

any notice given to the public of what what type of speech is or isn’t prohibited. The statute

contains no guidelines and imposes unlimited discretion to prosecutors (as is the case here) to

prosecute any speech directed at a witness. Clearly, the Hammersley test is satisfied on all

prongs. The statute is unconstitutionally overbroad.

However, Idaho Code § 18-2604(3) is entirely sound when it is interpreted in the context

of non-expressive action. But, if interpreted literally, the statute would cover two common, and

constitutionally protected, forms of speech. One form consists of threats that, if the target

engages does something allegedly harmful—or fails to remedy harms caused by a past action—

the speaker will publicly condemn that action.

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The other form of speech, the one involved in this case, consists of simple threats that one will harshly and publicly criticize the target’s past actions, such as: (1) a columnist’s writing, “Legislator A’s vote on issue B is ridiculous, and I intend to ridicule him until his constituents view him with contempt”;

(2) an advocacy group’s picketing a store with signs saying, “The store owner’s decision

to stock product C is disgraceful, and we hope our speech will expose the owner to disgrace and

ostracism”;

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(3) a politician’s saying, “The incumbent’s decision D is so foolish that, once I publicize it, the incumbent will be the laughingstock of the state”;

(4) a blogger’s writing, “The judge who restricted my visitation rights was in effect

abusing my children through the legal process,” with the implied statement, “and I will keep

publicly criticizing the judge’s actions.”

These threats could be express (“I’m outraged by your conduct, and I’ll publicly harshly -6-

MEMORANDUM IN SUPPORT OF MOTION TO DISMISS

condemn it and ridicule it”) or implied (such as a sequence of articles, broadcasts, leaflets, or

posts, each implicitly threatening further statements). And these threats would be covered by I.C.

§ 18-2604(3) because they would involve “intimidat[ing], influenc[ing], imped[ing], deter[ing],

threaten[ing], harass[ing], obstruct[ing] or prevent[ing]” by using “any threats” in “any manner”.

However, each of these statements would nonetheless be protected by the First Amendment.

Two leading United States Supreme Court precedents make this clear. In Organization for

a Better Austin v. Keefe, 402 U.S. 415 (1971), a civil rights organization was upset about real

estate agent Keefe’s behavior—behavior that was legal but, in the views of the Organization,

wrong (because it promoted white flight). Organization members therefore leafleted in Keefe’s

home town, Westchester, and expressly threatened more such leafleting unless Keefe agreed to

change his practices; one leaflet said, “When [Keefe] signs the agreement, we stop coming to

Westchester.” Id. at 417. Yet the Court ruled that the speech remained constitutionally protected:

The claim that the expressions were intended to exercise a coercive impact on respondent does not remove them from the reach of the First Amendment. Petitioners plainly intended to influence respondent’s conduct by their activities; this is not fundamentally different from the function of a newspaper. Petitioners were engaged openly and vigorously in making the public aware of respondent’s real estate practices. Those practices were offensive to them, as the views and practices of petitioners are no doubt offensive to others. But so long as the means are peaceful, the communication need not meet standards of acceptability.

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Id. at 419 (internal citations omitted) (emphasis added).

Similarly, in NAACP v. Claiborne Hardware Co., 458 U.S. 886 (1982), the NAACP

organized a boycott by black residents of white-owned businesses. To make the boycott effective,

NAACP members read the names of nonparticipating blacks at church and published them in a

local newspaper. Id. at 909. Yet though this too threatened exposing people to contempt and

disgrace in retaliation for a lawful act—shopping at white-owned stores—the Court held the

speech was protected: “Petitioners admittedly sought to persuade others to join the boycott

through social pressure and the ‘threat’ of social ostracism. Speech does not lose its protected

character, however, simply because it may embarrass others or coerce them into action.” 458 U.S.

at 909-10.

As can be seen in the Facebook post, Mr. Townsend was notifying Facebook of what he -7-

MEMORANDUM IN SUPPORT OF MOTION TO DISMISS

called a “non-violent and legal shame campaign” consisting of “HOA upsets”, “protests”,

“mailers”, “door hangers”, “online ads”, and “peaceful, but [] annoying avenues”. What Mr.

Townsend is describing is clearly constitutionally protected activity; free speech.

I.C. § 18-2604(3) is thus overbroad as it is applied to Mr. Townsend’s speech.

Furthermore, the State’s interpretation of the statute is inconsistent with Organization for a Better

Austin and NAACP v. Claiborne Hardware, which held that speech intended to place the victim in

fear of ostracism or disgrace is indeed constitutionally protected criticism.

If the Court were to accept the State’s broad interpretation of I.C. § 18-2504(3), then much

criticism of legislators, executive officials, judges, business people, and other public officers—

whether by newspapers, advocacy groups, politicians, or other citizens—could be punishable. This

Court should therefore hold that I.C. § 18-2604(3) is overbroad and should be restricted in its

application. Informing someone (explicitly or implicitly) that one will publicly criticize him for his

prior act, with the intent to expose him to hatred, contempt, disgrace, or ridicule, cannot be

criminalized. So, indeed, the Hammersley test is satisfied because a significant amount of Mr.

Townsend’s speech is being precluded by the State’s interpretation of the statute.

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IDAHO CODE § 18-2604(3) MUST BE RESTRICTED IN ITS APPLICATION The First Amendment to the Constitution of the United States protects both actual speech

and symbolic or expressive conduct. Virginia v. Black, 538 U.S. 343, 123 S.Ct. 1536, 155

L.Ed.2d 535 (2003). The U.S. Supreme Court has permitted restrictions upon the content of

speech in a few limited areas, such as obscenity, defamation, fighting words, true threats, and

intimidation. As it stated in R.A.V. v. St. Paul, 505 U.S. 377, 382-83, 112 S.Ct. 2538, 2542-43,

120 L.Ed.2d 305, 317 (1992):

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From 1791 to the present, however, our society, like other free but civilized societies, has permitted restrictions upon the content of speech in a few limited areas, which are "of such slight social value as a step to truth that any benefit that may be derived from them is clearly outweighed by the social interest in order and morality." [citation omitted] We have recognized that "the freedom of speech" referred to by the First Amendment does not include a freedom to disregard these traditional limitations. See, e.g., Roth v. United States, 354 U.S. 476, [77 S.Ct. 1304, 1 L.Ed.2d 1498] (1957) (obscenity); Beauharnais v. Illinois, 343 U.S. 250, [72 S.Ct. 725, 96 L.Ed. 919] (1952) (defamation); Chaplinsky v. New Hampshire, [315 U.S. 568, -8-

MEMORANDUM IN SUPPORT OF MOTION TO DISMISS

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[62 S.Ct. 766, 86 L.Ed. 1031] (1942)] ("`fighting' words"). Our decisions since the 1960's have narrowed the scope of the traditional categorical exceptions for defamation, see New York Times Co. v. Sullivan, 376 U.S. 254, [84 S.Ct. 710, 11 L.Ed.2d 686] (1964); Gertz v. Robert Welch, Inc., 418 U.S. 323, [94 S.Ct. 2997, 41 L.Ed.2d 789] (1974); see generally Milkovich v. Lorain Journal Co., 497 U.S. 1, 13-17, [110 S.Ct. 2695, 270205, 111 L.Ed.2d 1, 14-17] (1990), and for obscenity, see Miller v. California, 413 U.S. 15, [93 S.Ct. 2607, 37 L.Ed.2d 419] (1973), but a limited categorical approach has remained an important part of our First Amendment jurisprudence.

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In Virginia v. Black, 538 U.S. 343, 123 S.Ct. 1536, 1548, 155 L.Ed.2d 535, 552 (2003)

(citations omitted), the United States Supreme Court held that “true threats” are not protected by

the First Amendment, nor is intimidation when it is a type of true threat.

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"True threats" encompass 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 actually intend to carry out the threat. Rather, a prohibition of true threats "protect[s] 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." Intimidation in the constitutionally proscribable sense of the word is a type of true threat, where a speaker directs a threat to a person or group of persons with the intent of placing the victim in fear of bodily harm or death. Id (emphasis added).

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In order to restrict the application of Idaho Code § 18-2604(3) to its correct constitutional

limits, any spoken “intimidat[ing], influenc[ing], imped[ing], deter[ing], threaten[ing],

harass[ing], obstruct[ing] or prevent[ing]” may only be criminalized where it falls under one of

the exceptions to the First Amendment, namely: obscenity, defamation, fighting words, true

threats, and intimidation. The State is alleging that Mr. Townsend’s statements violate I.C. § 18-

2604(3). However, this analysis need not address how Mr. Townsend’s speech violates 18-

2604(3) because Mr. Townsend’s statements do not fit under any recognized exception to the

First Amendment.

First, Mr. Townsend used no obscenities in his statements. Second, the State is not

alleging, nor is there any valid interpretation saying, that Mr. Townsend’s statements were

defamatory in any way. Third, Mr. Townsend did not use "fighting words": those words spoken

face-to-face that are "likely to provoke the average person to retaliation, and thereby cause a -9-

MEMORANDUM IN SUPPORT OF MOTION TO DISMISS

breach of the peace." State v. Poe, 139 Idaho 885 (2004) (citing Chaplinsky v. New Hampshire,

315 U.S. 568, 574, 62 S.Ct. 766, 770, 86 L.Ed. 1031, 1036 (1942)). Indeed, it is reasonable to

assume that the State is alleging that Mr. Townsend’s statements fall under the “true threat” or

“intimidation” exception to the first amendment.

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MR. TOWNSEND’S FACEBOOK POST IS NOT A “TRUE THREAT” The United States Supreme Court held that “true threats” are not protected by the First

Amendment, nor is intimidation when it is a type of true threat. Virginia v. Black, 538 U.S. 343,

123 S.Ct. 1536, 1548, 155 L.Ed.2d 535, 552 (2003). So intimidation is simply a subset of “true

threats.” And "true threats" encompass 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. Id.

Thus, the only statements for which Mr. Townsend can be prosecuted are ones where Mr.

Townsend meant to communicate a serious expression of an intent to commit an act of unlawful

violence upon person or persons. Unlawful Violence! It is clear from the text of Mr. Townsend’s

statements on pages 5-6 that there is not even a suggestion of “unlawful violence.” In fact, Mr.

Townsend was very clear that he intended to be “non-violent” and conduct a “legal shame

campaign.” To suggest that Mr. Townsend’s statements are tantamount to an expression of intent

to commit unlawful violence is to simply twist the words being all recognition.

Because Mr. Townsend’s alleged statements do not fall within the “true threat” exception

to the First Amendment, nor within any other recognized exception, they are protected by the

First Amendment, not criminal conduct, and should not be brought to a jury.

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CONCLUSIONS

The State has no evidence that Mr. Townsend’s Facebook post had anything to do with

Officer Brockbanks future testimony. The State simply wishes to lure a jury into relying on

supposition, assumption, and speculation.

Facebook post has anything to do with Officer Brockbank’s testimony and the State has no

witnesses that can make that connection. Therefore, this case should be dismissed as a matter of

The Court should not allow it.

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Nothing in the

MEMORANDUM IN SUPPORT OF MOTION TO DISMISS

law because of the State’s inability to present any evidence probative of the last element of their

charge.

Only “true threats”, “fighting words”, “defamation”, or “obscenities” contained within the

alleged Facebook post may be criminalized. As a matter of law, Mr. Townsend’s Facebook post

contains no such speech that fits within an exception to the First Amendment. Because the

Facebook post at issue does not contain any potentially criminal speech, and because the

Facebook post is the only piece of evidence at issue in this case, the Court should dismiss this

case forthwith.

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Dated ________________, 2015

Respectfully Submitted,

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_______________________________________

Aaron J. Tribble

Attorney for Defendant

15 CERTIFICATE OF SERVICE

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I HEREBY CERTIFY that on this______ day of _________, 2015, I caused a true and

correct copy of the foregoing document to be served by the method indicated below, and

addressed to the following:

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Ada County Prosecutor’s Office 200 W. Front Street Room 3191 Boise, ID 83702 Fax: 208-287-7709

( ( ( (

) ) ) )

U.S. Mail, Postage Prepaid Hand Delivered Overnight Mail Facsimile

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_____________________________________

Aaron J. Tribble

Attorney for Defendant - 11 -

MEMORANDUM IN SUPPORT OF MOTION TO DISMISS