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Court of Appeal:
Calling Witness ‘Snitch’ Might Be Enough to Support Charges
Opinion Says No First Amendment Issue in Punishing Party for Use of Word Where Context Suggests Slur Amounted to ‘True Threat’ of Violence
By Kimber Cooley, associate editor
Confronting the father of an alleged sexual battery victim and calling him a “snitch” may be sufficient to support witness intimidation charges without running afoul of the First Amendment, the Sixth District Court of Appeal held yesterday, opining that the slur may amount to a “true threat” devoid of constitutional protections depending on the circumstances under which it was spoken.
The question arose in a case in which one brother, Jeremy Paigly, called the other brother, Joe Paigly, a “snitch” in April 2021, after reports were made to police about a family member having been assaulted. Joe Paigly initially told police that his sibling was holding a gun when he used the slur.
At trial, the witness testified that the defendant chased him around with a knife, not a gun, before getting into a car and driving away. When asked about the discrepancy, he said that his brother often carried a weapon and that he thought he had heard a bystander say something about a firearm.
Jeremy Paigly was found guilty of committing a misdemeanor sexual battery against Joe Paigly’s nineteen-year-old daughter and of making threats against a witness, in violation of Penal Code §§136.1(c)(1) and 140(a)(4). The jury, however, found an enhancement alleging that the defendant used a deadly or dangerous weapon during the alleged intimidation to be “not true.”
Free Speech Protections
After Santa Clara Superior Court Judge Elizabeth Peterson sentenced Jeremy Paigly to a total of four years in prison in 2023, the defendant appealed. He argued that the evidence supporting the threat-based convictions was insufficient as a matter of law, citing the jury’s not true finding on the use of a weapon allegation and asserting that calling someone a “snitch,” without more, is not enough to render the speech beyond free speech protections.
In an opinion authored by Acting Presiding Justice Adrienne Grover and joined by Justice Daniel H. Bromberg, the court concluded:
“Here, the jury could have accepted Joe’s testimony that defendant was indeed holding a knife, yet have been unsatisfied with evidence that he intentionally displayed the knife ‘in a menacing manner[]’ [as required by the allegation]….Alternatively, the jury could have rejected Joe’s testimony about the knife entirely, yet still have found sufficient evidence in the surrounding circumstances to conclude defendant’s calling Joe a snitch was intended as a violent threat….Because one need not possess a weapon to communicate a serious intent to commit a violent act, the jury’s uncertainty as to the weapon allegation does not preclude guilty verdicts on the underlying counts.”
As to the First Amendment implications, Grover cited the 2023 U.S. Supreme Court decision in Counterman v. Colorado for the proposition that “true threats” are not entitled to First Amendment protections and may form the basis for criminal charges if the prosecution shows that they were recklessly made.
Justice Cynthia C. Lie wrote separately, saying that she agrees “that the evidence is sufficient” to support the judgment and that the defendant’s “convictions do not offend the First Amendment,” but raising doubts that the charges could be constitutionally upheld if the testimony about the knife was ignored.
Use of ‘Snitch’
Grover noted that Jeremy Paigly argued that merely calling someone a “snitch” does not necessarily threaten violence in retaliation for cooperating with law enforcement but is commonly used to refer to anyone who “tells on someone.”
The jurist did not dispute the point but said that the legal test for whether a phrase is a constitutionally unprotected “true threat” is whether the statement is one that a reasonable person would understand to convey an intent to commit violence, rather than an expression of frustration, given the context in which it was spoken.
Applying that standard, she wrote:
“Based on our independent review, we conclude a reasonable person would understand defendant’s statement and conduct—in light of the context and surrounding circumstances as found by the jury—to communicate a true threat. Defendant knew he was being investigated for sexual battery. He also knew that Joe had spoken about the incident to defendant’s ex-wife, who then told defendant. After [Joe’s wife] informed [him] that defendant was ‘looking for him,’ defendant saw Joe on the street, jumped out of his car, and called him a ‘snitch,’ possibly while holding a knife.”
She continued:
“We acknowledge that calling someone a ‘snitch’ does not always imply a threat of violence. But it is reasonable to conclude that in the context of an ongoing criminal investigation, defendant’s looking for Joe and calling him out as a ‘snitch’—with or without a knife in hand—carried two implicit but clear connotations: defendant was communicating that he knew or suspected Joe was cooperating with law enforcement about the matter, and that there would be consequences to Joe from cooperating. The term ‘snitch’ in this situation and context may carry ‘an inherent baggage of connotation’ which suggests a threat is being communicated.”
The justice also rejected the defendant’s contention that the jury in his case was not properly instructed as to the mental state required to sustain the witness intimidation charges, citing the recklessness requirement in Counterman. Rejecting the argument, she remarked:
“The jury could not have convicted defendant without finding (1) that he had willfully—i.e., intentionally, willingly or on purpose—threatened Joe in a way that a reasonable person would interpret as ‘a serious expression of intent to commit an act of unlawful force or violence’…, and (2) that defendant did so because he knew (or at least believed) Joe was cooperating with law enforcement.”
Under those circumstances, she concluded that the instructions given “exceed[ed] Counterman’s minimum showing of recklessness.”
As to an assertion that Joe Paigly did not qualify as a “witness” under the Penal Code, she commented that the law defines the term “broadly” to include anyone having knowledge of a crime or reporting an offense to law enforcement, as well as someone reasonably believed to meet those criteria. Based on the definition, Grover said:
“Joe was a witness who was interviewed by police and who also testified at trial regarding the sexual battery charge.”
Lie’s View
Lie wrote:
“I respectfully part ways with my colleagues only to the extent that they deem it necessary to reconcile these guilty verdicts with the jury’s not-true finding on the allegation that Paigly used a dangerous or deadly weapon.”
She noted that “we consider the nature and quality of the evidence supporting that count or allegation, not the overall coherence of the jury’s decisionmaking,” and said:
“Perhaps, as the majority and the People maintain, there is a distinction between visibly holding a knife while accusing one’s brother of being a ‘snitch,’ under sections 136.1 and 140, and the menacing display of the knife, under section 12022, subdivision (b)(1)….If so, that distinction strikes me as an exceptionally subtle one.”
The justice added:
“Perhaps, as the majority maintains, Paigly’s finding and loudly confronting his brother by calling him a snitch—while not displaying a knife—would suffice to meet the statutory elements of the offenses. But if truly limited to this latter scenario, I would lack the majority’s confidence that such conduct would constitute a ‘[t]rue threat[]’ for First Amendment purposes.”
The case is People v. Paigly, H050724.
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