AG Derek Schmidt: Kansas to appeal ruling that ‘reckless’ criminal threat statute is unconstitutional

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Kansas Attorney General

TOPEKA – (November 21, 2019) – The State of Kansas will ask the U.S. Supreme Court to review two recent Kansas Supreme Court decisions that ruled Kansas’ reckless criminal threat statute violates the First Amendment to the U.S. Constitution, Attorney General Derek Schmidt said today.

“The U.S. Supreme Court has never squarely decided whether the First Amendment allows states to prohibit threats of violence uttered with reckless disregard for whether they cause fear or other specified harm to the people at whom they are directed,” Schmidt said. “The lower courts are divided on that question, and the Kansas Supreme Court has now come down on the side that reckless threats of violence are protected speech. So we are seeking clarity and certainty by asking the U.S. Supreme Court to review that decision.”

On October 25, the Kansas Supreme Court in two separate cases invalidated the state’s reckless criminal threat statute and overturned the convictions of two individuals for violating it. One case involved a threat of violence directed at a law enforcement officer and the other a threat of violence uttered in a family relationship. The Kansas Supreme Court ruled that the First Amendment’s free speech protections require the state to prove that the person uttering the threat intended to cause fear in the victim; it is not enough, the court held, that the threat was uttered with reckless disregard for whether it would frighten the victim.

The attorney general yesterday formally notified the Kansas Supreme Court of his decision to appeal, putting further proceedings in both cases on hold until the U.S. Supreme Court decides whether to review them. The U.S. Supreme Court grants only a small number of requests to review lower court cases, typically about 1 percent of those it receives each year. By law, the attorney general’s office represents Kansas in matters before the U.S. Supreme Court. 

A decision by the U.S. Supreme Court whether to hear the state’s appeal in either or both of these cases would be expected next year. The two cases are State v. Boettger, which arose in Douglas County, and State v. Johnson, which arose in Montgomery County.