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              IN THE COURT OF APPEALS OF THE STATE OF ALASKA


STATE OF ALASKA,
                                                     Court of Appeals No. A-11688
                           Appellant,               Trial Court No. 3AN-13-3567 CR

                    v.
                                                             O P I N I O N
SHANE KIDD BOROWSKI,

                           Appellee.                    No. 2510 — July 22, 2016


             Appeal from the District Court, Third Judicial District,
             Anchorage, Pamela Scott Washington, Judge.

             Appearances: Jason B. Frasco, Assistant District Attorney,
             Anchorage, and Michael C. Geraghty, Attorney General, Juneau,
             for the Appellant. Catherine Boruff, Assistant Public Defender,
             and Quinlan Steiner, Public Defender, Anchorage, for the
             Appellee.

             Before: Mannheimer, Chief Judge, and Allard, Judge.

             Judge MANNHEIMER.


             During Anchorage Assemblyman Dick Traini’s run for re-election in 2013,
Shane Kidd Borowski posted a message on Traini’s election Facebook page. The
message read, “Your going to get assassinated.” [sic]
             Based on this conduct, Borowski was charged with the crime of second-
degree harassment as defined in AS 11.61.120(a)(4). This statute prohibits a person
from making “[an] electronic communication that threatens physical injury”, if the
person makes that communication “with intent to harass or annoy another person”.
             The district court dismissed this charge before trial, ruling that Borowski’s
Facebook post was protected speech under the First Amendment.
             We conclude that the district court’s ruling was mistaken in two respects.
             First, in making this ruling, the district court improperly made several
findings of fact — even though, as yet, no evidence has been presented in Borowski’s
case. And in each of these findings, the court interpreted the circumstances in the light
most favorable to Borowski.
             Second, the district court’s ruling was based on the mistaken legal premise
that Borowski could not be prosecuted for his Facebook post unless Borowski seriously
intended to harm Traini. As we explain in this opinion, the law is to the contrary: a
person can be prosecuted for communicating a threat of harm to another person even if
the speaker does not seriously intend to carry out the threat, so long as the speaker is
aware that people would reasonably interpret the words as a real threat of harm.
             For these reasons, we reverse the district court’s ruling and reinstate the
charge against Borowski.


      Procedural history of this case, and details of the district court’s ruling


             After Borowski was charged with second-degree harassment for his
Facebook post, Borowski’s attorney moved to dismiss this charge, arguing that Borowski
could not be prosecuted because his Facebook post was protected speech under the First
Amendment to the federal constitution. The defense attorney argued that Borowski’s
communication was merely political hyperbole, and not a “true threat”.



                                          –2–                                        2510

              The district court granted Borowski’s motion to dismiss. The court took
the position that, under the First Amendment, (1) a person can be criminally prosecuted
for their speech only if that speech constitutes a “true threat”, and (2) a person’s speech
constitutes a “true threat” only if “the [person] means to communicate a serious
expression of [their] intent to commit an act of unlawful violence to a particular
individual or group”.
              The court then proceeded to make several findings of fact — not based on
any evidence, but solely on the parties’ pleadings.
              First, the district court concluded that Borowski’s Facebook post did not
constitute a serious expression of Borowski’s intent to commit an act of unlawful
violence, because (according to the court) Borowski’s words “conveyed no explicit or
implicit threat ... that he himself would assassinate Traini.” (Emphasis added.)
              On this point, the court noted that there was no evidence that Borowski
possessed weapons that might be used to assassinate Traini — a circumstance which,
according to the district court, bolstered the court’s conclusion that Borowski had not
“meant to communicate a serious expression of an intent to commit an act of violence
against Traini.”
              Next, the district court found that Borowski’s post on Traini’s election
Facebook page did not constitute a direct communication to Traini personally, but rather
a “[political] statement ... to [the] public.” The court concluded that “[Borowski’s]
choice of venue [for his speech] does not indicate [an] intent to personally threaten
Traini[,] nor does it indicate [that Borowski] had the sole intent to harass or annoy.”
              Finally, the district court noted that when Borowski was confronted about
his Facebook post, he repeatedly declared that he did not intend to seriously threaten
Traini. The court acknowledged that “many defendants will claim innocence”, but the



                                           –3–                                        2510

court declared that “Borowski’s repeated statements that he was just joking ... cannot be
discounted entirely.”
             Havingmade these findings in favor of Borowski (i.e., after interpretingthe
situation in Borowski’s favor on these various points), the district court then
paradoxically declared that even “[viewing] the facts in the light most favorable to the
prosecution”, there was no reasonable interpretation of the situation that would support
the conclusion that Borowski’s Facebook post was a “true threat” — i.e., no reasonable
possibility that Borowski truly intended to threaten Traini with death. The district court
therefore dismissed the harassment charge.


      Why we reverse the district court’s ruling


             Because Borowski’s motion to dismiss was filed in advance of trial (and in
advance of any evidentiary hearing), the district court had not heard any testimony when
the court made its ruling. Borowski’s motion was, in essence, a motion for judgement
on the pleadings, or (conceivably) a motion for summary judgement — i.e., a claim that
even if the State proved everything alleged in its criminal complaint and supporting
documents, any and all reasonable fact-finders would have to conclude that Borowski’s
Facebook post was protected speech.
             In such circumstances, a court is not supposed to make findings of fact.
Instead, the court must view the facts in the light most favorable to the non-moving party
— the party who will lose if the motion is granted. In other words, when the court
evaluates whether the case should be dismissed, rather than making findings of fact, the
court must simply assume that the non-moving party will prove all of its factual




                                          –4–                                        2510

allegations if the case goes to trial, and that the jurors (having heard this proof) will draw
all reasonable inferences in favor of the non-moving party. 1
              In Borowski’s case, in the concluding paragraph of the district court’s
decision, the court declared that it was viewing the facts “in the light most favorable to
the prosecution”. But it is obvious from the court’s analysis that the court failed to
follow this rule. Instead, the court repeatedly interpreted the facts in the light most
favorable to Borowski. For example, with regard to Borowski’s repeated statements that
his Facebook post was merely a joke, the district court declared that Borowski’s
protestations of innocence “[could not] be discounted entirely”. But, of course, if
Borowski’s case went to trial, the jury would be entitled to do just that.
              The district court’s ruling was flawed in one other respect: the court
applied the wrong law when it concluded that Borowski’s Facebook post was protected
speech under the First Amendment.
              The district court concluded that, under the First Amendment, words that
communicate a threat of physical harm are protected from criminal prosecution unless
the State proves that the speaker “[meant] to communicate a serious expression of [their]
intent to commit an act of unlawful violence to a particular individual or group”. At
several points in its analysis, the district court either expressly or impliedly declared that
the State was required to prove that Borowski truly intended to inflict harm on Traini.
              This is incorrect. As many courts have held, the government need not
prove that it was the speaker’s subjective intent to carry out the threat. Rather, it is




   1
       See, e.g., Brandner v. Pease, 361 P.3d 915, 920 (Alaska 2015).

                                            –5–                                          2510

sufficient if the speaker utters or transmits a communication with knowledge that the
communication will be viewed as a threat. 2
              The district court’s erroneous ruling on this issue may have stemmed from
the problematic language that the courts have used to describe this concept — “true
threat”. This phrase is ambiguous: as the district court’s decision in Borowski’s case
illustrates, the words “true threat” could easily be misunderstood to mean that the
speaker truly intended to carry out the threatened conduct. But that is not the case.
              For years, the Alaska statutes have penalized threatening communications
even without proof that the speaker actually intended to carry out the threat. For
example, it is a crime under AS 11.56.810(a)(1) for a person to falsely report that a bomb
has been planted in a building or in a public area.
              In Commonwealth v. Beasley, __ A.3d __, 2016 WL 1719408 (Pa. 2016),
the Pennsylvania Supreme Court was recently called upon to interpret that state’s
“terroristic threatening” statute 3 — a counterpart to our AS 11.56.810. The court
explained that the government was required to prove that “the defendant made a threat
to commit a crime of violence”, and that the defendant communicated this threat “with
the intent to terrorize another or with reckless disregard for the risk of causing terror.”
But, as the Pennsylvania court explained, “[n]either the ability to carry out the threat, nor
a belief by the person threatened that the threat will be carried out, is an element of the
offense. ... Rather, the harm sought to be prevented by the statute is the psychological
distress that follows from an invasion of another’s sense of personal security.” 4

   2
      See Virginia v. Black, 538 U.S. 343, 358-360; 123 S.Ct. 1536, 1547-48; 155 L.Ed.2d
535 (2003); State v. Moulton, 78 A.3d 55, 64-65 (Conn. 2013); State v. Kilburn, 84 P.3d
1215, 1219-1222 (Wash. 2004) (and the cases cited there).
   3
       18 Penn. Compiled Stats. § 2706.
   4
       Beasley, __ A.3d __, 2016 WL 1719408 at *5.

                                            –6–                                         2510

             Our harassment statute, AS 11.61.120(a)(4), is aimed at a similar societal
interest. Under this statute, a person commits the crime of second-degree harassment
“if, with intent to harass or annoy another person, [the] person ... makes ... a telephone
call or electronic communication that threatens physical injury or sexual contact”. This
statute does not penalize the intent to inflict physical injury or non-consensual sexual
contact. Rather, it penalizes the act of communicating with another person in a way that
the speaker knows will be understood as a threat to inflict these harms, if the speaker’s
intent in making this communication is to harass or annoy another person.
             Here, the government’s case against Borowski would be established if the
government proved (1) that Borowski knowingly made an electronic communication,
(2) that this electronic communication threatened physical injury, (3) that Borowski
knew that the communication would be viewed as a threat, and (4) that Borowski made
the communication with the intent of harassing or annoying another person. The
government does not need to prove that Borowski truly intended to carry through with
an act of physical violence against Assemblyman Traini.


      Conclusion


             The judgement of the district court is REVERSED, and this case is
remanded to the district court for further proceedings on the criminal complaint.




                                          –7–                                        2510

