Colorado high court finds state’s anti-stalking law constitutional

Thursday, January 28, 1999

The Colorado Supreme Court this week ruled the state anti-stalking law constitutional, reversing a trial judge who had found the law to be both unconstitutionally overbroad and vague.

In People v. Baer, the high court on Jan. 25 reinstated the charges filed against David Richard Baer, who was charged in late 1996 with violating the state’s “harassment by stalking” law.

Baer had allegedly made several threatening calls to Darlene Scheller, the mother of his son, and her husband, Allen Scheller. According to the Schellers’ affidavits, Baer said he was going to kill Darlene Scheller for not letting him see his son.

The anti-stalking law, enacted in 1992, provides that “a person commits harassment by stalking if directly or indirectly through another person such person knowingly … makes a credible threat to another person and, in connection with such threat, repeatedly makes any form of communication with that person or a member of that person’s immediate family, whether or not a conversation ensues.”

The trial judge dismissed the charges against Baer, finding that the statute — because it included within its definition “any form of communication” made “in connection” with a threat — covered a substantial amount of constitutionally protected speech.

On appeal, the high court ruled that Baer’s constitutional arguments had relied on an “erroneous interpretation” of the law. Under the defense’s interpretation, the law prohibited a person from having any communication with another person after a credible threat had been made.

According to the high court, “the statute reaches only those communications that further, promote, or advance a credible threat.” The high court noted that 47 other states have enacted anti-stalking laws, and that a majority of courts analyzing those laws have rejected constitutional challenges to them.

“Where a stalking statute requires a nexus between the threat and the accompanying physical or verbal acts, the statute is much more likely to survive a constitutional challenge,” the court wrote.

Baer’s attorneys assert that the anti-stalking law was unconstitutional as applied to him because he was being punished for “angry but constitutionally legitimate” conversations he had with Scheller.

However, the high court ruled this argument was based on a “false premise.”
In order to come under the scope of the law, “the conversations must further, promote, or advance the threat made against the lives of Mrs. and Mr. Scheller,” the court wrote.

The court concluded: “While the offense of stalking does contain an element of speech, this speech does not fall within the protections of the First Amendment. Where speech is an integral part of unlawful conduct, it has no constitutional protection.”

The case now goes to the trial court for further proceedings.