Metropolitan News-Enterprise


Thursday, September 28, 2023


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Unsettling Conduct Is Insufficient to Constitute ‘Stalking,’ C.A. Declares


By a MetNews Staff Writer


The First District Court of Appeal has reversed the conviction of a man for stalking, holding that a man’s odd and nettlesome conduct toward a politician and his wife did not constitute true threats and was constitutionally protected.

Defendant/appellant Bruce Peterson was convicted under Penal Code § 646.9(a), which provides:

“Any person who willfully, maliciously, and repeatedly follows or willfully and maliciously harasses another person and who makes a credible threat with the intent to place that person in reasonable fear for his or her safety, or the safety of his or her immediate family is guilty of the crime of stalking, punishable by imprisonment in a county jail for not more than one year, or by a fine of not more than one thousand dollars ($1,000), or by both that fine and imprisonment, or by imprisonment in the state prison.”

Writing for Div. Three, Justice Victor Rodríguez said in Tuesday’s opinion:

“We conclude, as a matter of law, that a reasonable person would not understand Petersons speech and its dissemination, whether considered separately or cumulatively, to be a true threat.”

The alleged victims were Cameron Lee Burks, and his wife, Julia Ackley. Burks is a councilman in the City of Lafayette, located in Contra Costa County, and is a former mayor of that city.

In February 2020, the couple held an open house in support of a school bond measure. The invitation explained that Burks was “hosting this event as an individual resident of Lafayette and a father of school-aged children.”

Defendant’s Conduct

Peterson attended. He mentioned to Ackley that it was 22 days since her birthday.

The following month, he grabbed a photo of Burks, Ackley, and their two daughters from Ackley’s Facebook page and pasted it on his own page. He added a caption reading:

“A politician’s family. I have never met the younger 2 girls.”

He remarked that he wondered where Burks and Ackley “hid the girls” during the open house and added:

“They live near Burton Valley School. Considering the politician, Cameron Burks, has a different name than his wife, I wonder what their daughters’ last name is?”

Peterson termed described Burks as “one of the Mayor’s who abdicated his throne But remained in power, on the Lafayette, Ca. City Council.”

And one month after that, he sent Ackley a letter in which he contended: “100% of the politicians and their administrators, who are supposed to represent me, are corrupt.” Enclosed was a check, on the front was written: “Pay to order of anyone who is not corrupt,” and on the back there was the message:

“Thanks for hosting the event on February 3rd, 2020. I do not recall your two daughters’ names….”

Rodríguez’s Opinion

Rodríguez wrote:

“Peterson’s stalking conviction rested entirely on his speech—his remarks to Ackley at the open house event, his Facebook post and comments, and the letter and check—and its dissemination—the acts of posting on Facebook and mailing the letter. Moreover, the speech and its dissemination unquestionably occurred in a First Amendment context, concerning a school bond measure, local politics, and criticism of a politician.”

He said that “Peterson’s comment to Ackley about the exact number of days that had passed since her birthday was odd, and she was no doubt unnerved by his remark given her unawareness that her birthday was publicly available on her Facebook page.” But, he declared, “the mere reference to her birthday” did not meet the standard of a “serious expression of an intent to commit an act of unlawful violence,” adding:

“[E]eccentricity and being off-putting is not a criminal offense.”

Facebook Posting

The jurist continued:

“Peterson’s Facebook post and comments fare no better….The post and comments were made in the context of the school bond measure Burks and Ackley supported as parents of ‘school-aged children.’…Despite the unsettling and even disturbing nature of Peterson’s post and comments, the school bond measure at the center of Peterson’s speech was unquestionably a matter of public interest….

“Peterson’s Facebook post and comments did not constitute a true threat and they could not reasonably be interpreted as such. References to Burks and Ackley’s daughters were surely discomfiting, but a reasonable person would not think, as the Attorney General suggests, that they reflected efforts ‘to learn about, locate, and contact Burks’s teenage daughters.’ Direct threats of violence are not necessary, but something more than the mere mention of the children was required.”

With respect to the letter and check Peterson sent to Ackley, Rodríguez said that no “threats—veiled or otherwise—can be found here.”

The case is People v. Peterson, 2023 S.O.S. 3582.


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