Wednesday, July 20, 2011
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Ninth Circuit Throws Out Conviction for Threatening Obama
From Staff and Wire Service Reports
A San Diego man who posted vitriolic, profanity-laced and racist comments on an Internet message board regarding Barack Obama during the 2008 presidential campaign yesterday had his convictions for threatening to harm a political candidate overturned,
The Ninth U.S. Circuit Court of Appeals ruled that the statements by Walter Bagdasarian, who was described in yesterday’s decision as “an especially unpleasant fellow,” were “repugnant,” but did not constitute violations of 18 U.S.C. § 879(a)(3).
This statute, which makes it a crime to “knowingly and willfully threaten[ ] to kill, kidnap, or inflict bodily harm upon…a major candidate for the office of President,” contains a subjective and objective element, the panel explained.
To violate Sec. 879(a)(3), the judges said, a statement must be understood by people hearing or reading it in context as a serious expression of an intent to kill or injure a major candidate for president, and the speaker must intend for his speech to be a threat.
Yahoo! Message Board
Bagdasarian, under username “californiaradial,” joined a “Yahoo! Finance” message board in October 2008 and posted two messages, one calling Obama a racial epithet and predicting “he will have a 50 cal [bullet] in the head soon,” and another which encouraged someone to “shoot” the candidate.
At trial, Bagdasarian admitted posting the messages, but said he was drunk and joking.
A retired Air Force officer who saw the messages forwarded the postings to the Secret Service. Yahoo provided Bagdasarian’s subscriber information to investigators, who raided his house and seized six guns and a hard drive containing an email with similar sentiments.
Bagdasarian was charged with two counts of violating Sec. 879(a)(3), and he waived his right to a jury trial. His case was tried before U.S. District Court Judge Marilyn L. Huff of the Southern District of California on stipulated facts.
Huff found Bagdasarian guilty of both counts and sentenced him to 60-days in a half-way home, but Judge Stephen Reinhardt said yesterday there was “insufficient evidence that either statement constituted a threat or would be construed by a reasonable person as a genuine threat by Bagdasarian against Obama.”
He reasoned that “[n]either statement constitutes a threat in the ordinary meaning of the word,” even though “both were alarming and dangerous,” since they did not convey an intention to kill or injure Obama.
The threat statute, Reinhardt explained, “does not criminalize predictions or exhortations to others to injure or kill the President.”
Dissenting Opinon
Chief Judge Alex Kozinski joined Reinhardt in his decision, but Judge Kim Wardlaw contended there was enough evidence to find Bagdasarian guilty of threatening harm against Obama when considered against “the ominous backdrop of America’s history of racial violence, the uniquely racial and violent undercurrents of the 2008 presidential election, the entirety of Mr. Bagdasarian’s postings on October 22, two weeks before the 2008 election, and the listeners who not only perceived the posts as threatening when they were made, but who acted on that perception.”
The case is United States v. Bagdasarian, 09-50529.
Copyright 2011, Metropolitan News Company