A handcuffed arrestee's statement that he would "fuck up" police if they were not police cannot be taken as a threat

Milon C. High, Jr.  v. United States (decided December 24, 2015)

Players:  Judges Fisher and Easterly, and Senior Judge Ruiz.  Opinion by Judge Ruiz.  Paul J. Riley for Mr. High.

Facts:  As Mr. High sat handcuffed on a curb, surrounded by three or four police officers, he "glared" at one officer and said, "take that gun and badge off and I'll fuck you up."  He then made a second statement, "something to the effect of, too bad it's not like the old days where fucking up an officer is a misdemeanor."  For making these statements, Mr. High was convicted of attempted threats.

Issue:  Was there sufficient evidence that the statements would cause an ordinary hearer to believe that the threatened harm would occur?

Holding:  No.  The statements "are most aptly described as an expression of exasperation or resignation over the fact that appellant had just been arrested by police officers."  On their face, the statements expressed only that if the officer was someone other than a police officer, or if  the penalties for assaulting an officer were not so severe, then Mr. High might want to "fuck up" the officer.  In other words, Mr. High was expressing his displeasure with the way he was being treated, but he did so by stating the reasons why he would not assault the officer despite Mr. High's desire to do so.  The context of the statements confirms they were not threatening:  Mr. High was handcuffed, surrounded by three or four police officers, and spoke in a "conversational tone."  There was also no suggestion that the officer at whom the statements were directed felt threatened.  DG

Read full opinion here.