D.C. high court: Teen’s rap wasn’t criminal threat

Friday, June 15, 2012

A teen’s rap about starting a house fire, uttered in front of a neighbor whose home had burned the previous day, did not constitute a criminal threat, the District of Columbia’s highest court has ruled.

Last week, the D.C. Court of Appeals reversed a juvenile’s conviction for felony threats to damage property in part because of the context of his comments.

Cherie Gardner, 22, was neighborhood friends with 15-year-old S.W. In August 2010, a vacant row house near Gardner’s home went up in flames. The fire spread to Gardner’s home, which she shared with her mother. When she evacuated the home, Gardner saw a group of young men, including S.W., gathered outside. Gardner remembered yelling at the group that when she found out who had started the fire, she would “handle it in any way [she] could.”

The next evening, Gardner heard S.W. rapping snippets from a song by superstar rapper Lil’ Wayne, “Burn this City.” S.W. allegedly rapped the words, “We will set this whole block on fire” and “We will set your house on fire.” However, there was no evidence that S.W. was in any way involved with the fire set the previous day.

After Gardner became upset at hearing S.W.’s rapping, which was done to a laughing group of friends, she informed the police. They charged S.W. with violating a D.C. ordinance prohibiting threats to damage property. A trial judge found S.W. delinquent (the term for guilty in juvenile proceedings).

On appeal, the D.C. Court of Appeals reversed the trial judge in its June 7 opinion in In Re S.W. The high court acknowledged that the literal words that S.W. rapped were on their face threatening. However, the opinion emphasized that words threatening on their face “can be rendered benign by their context.”

As the high court explained it: “Even when words are threatening on their face, careful attention must be paid to the context in which those statements are made to determine if the words may be objectively perceived as threatening.”

Emphasizing the context — a juvenile rapping to friends who were laughing at his words — the court wrote: “An objective observer might perceive a teenager engaged in jesting, teasing, mocking, even insult and humiliation — but would not reasonably perceive that S.W. posed an actual threat of arson.”

The high court’s finding was consistent with the U.S. Supreme Court’s initial true-threat decision in Watts v. United States (1969). In Watts, a young African-American man said at a political rally: “If they ever make me carry a rifle the first man I want to get in my sights is L. B. J. They are not going to make me kill my black brothers.” The Court in Watts said that “what is a threat must be distinguished from what is constitutionally protected speech.” The Court in Watts focused on the context of the statement, pointing out that both Watts and his listeners laughed after he made the comment.

The D.C. high court concluded: “What we have here is a disturbing event, an upset and angry young woman, and facially threatening words which — when placed in the context of S.W.’s acknowledged and unaltered friendship with Ms. Gardner and S.W.’s manner of delivery — cannot be reasonably and objectively perceived as communicating a threat to property.”

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