Wash. appeals court: Man’s comments to cop were true threat

Thursday, August 23, 2012

A young man who cursed at a police officer as he was being booked could be charged with felony harassment without violating his First Amendment rights, a Washington state appeals court has ruled. The court determined that the man uttered a true threat — a category of speech not protected by the First Amendment.

In August 2010, Officer Andrew Corral of the Pasco Police Department arrested 19-year-old Edgar Alonso Arroyos on charges of consumption of alcohol by a minor, as Washington’s drinking age is 21. Corral was conducting what the Washington Court of Appeals termed a “graffiti investigation.”

Corral searched Arroyos after arresting him. The officer discovered a photograph showing Arroyos making gang signs associated with the Florencia gang. Arroyos said that these people were his family and he associated with them to gain respect.

During booking at the police station, Arroyos complained that the police were locking up all of Florencia. Corral responded that several members of the gang had been arrested for a shooting in a public park. Arroyos allegedly responded: “That’s how Florencia does it.” Agitated, Arroyos then yelled, “Fuck a buster.” The term “buster” is a derogatory term for a police officer.

Officer Corral yelled back, “Fuck Florencia.” Later, Arroyos said he would see Corral again and added: “The next time I get arrested, who knows. It could be for shooting or stabbing somebody. … Okay, I’ll see you on the streets again, and you’ll know it’s Florencia.”

Corral did not immediately add more charges for Arroyos’ comments, but he had heard that some older members of the Florencia gang had encouraged younger members to shoot at the police. After discussing the matter with his supervisor, Corral returned and booked Arroyos on felony harassment charges.

When the case went to trial, Corral testified that he believed that Arroyos had threatened to kill him. The trial court determined that Arroyos uttered a true threat and convicted him on the charge.

Arroyos appealed to the Washington Court of Appeals, Division 3, which affirmed the conviction in its Aug. 21 opinion in State v. Arroyos.  In his appeal, Arroyos contended that he had engaged in hyperbole and trash talk, rather than making a true threat. However, the appeals court determined that “a reasonable speaker in Mr. Arroyos’ position would foresee that his statements would be interpreted as a true threat.”

The appeals court noted that Arroyos made repeated references to the Florencia gang in his comments. Arroyos had said in his appeal that any comments he made were indirect and noted that he had been drinking. But the appeals court said prior cases in Washington had established that a person can indirectly threaten another.

The appeals court concluded: “When the evidence is viewed in a light most favorable to the prosecution, there is sufficient evidence in the record from which a trier of fact could find that Mr. Arroyos would interpret his statements as an indirect threat to kill.”

According to the appeals court, the case presented a “close question” because of the drinking and the indirect nature of the threat. However, the appeals court said the trial court was in the best position to judge and certainly could have interpreted Arroyos’ comments as a true threat.

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