#28086-a-SLZ
2017 S.D. 76

                               IN THE SUPREME COURT
                                       OF THE
                              STATE OF SOUTH DAKOTA

                                      ****

STATE OF SOUTH DAKOTA,                         Plaintiff and Appellee,

      vs.

EDWARD JAMES DRASKOVICH,                       Defendant and Appellant.

                                      ****

                   APPEAL FROM THE CIRCUIT COURT OF
                      THE SECOND JUDICIAL CIRCUIT
                   MINNEHAHA COUNTY, SOUTH DAKOTA
                                      ****

                     THE HONORABLE SUSAN M. SABERS
                                Judge

                                      ****

MARTY J. JACKLEY
Attorney General

JOHN M. STROHMAN
Assistant Attorney General
Pierre, South Dakota                           Attorneys for plaintiff and
                                               appellee.

BEAU J. BLOUIN of
Minnehaha County
   Public Defender’s Office
Sioux Falls, South Dakota                      Attorneys for defendant and
                                               appellant.

                                      ****
                                               ARGUED OCTOBER 3, 2017
                                               OPINION FILED 11/21/17
#28086

ZINTER, Justice

[¶1.]        Edward Draskovich was convicted of threatening a judicial officer and

disorderly conduct as a result of statements he made in the Minnehaha County

Courthouse. The circuit court ruled the statements were “true threats” rather than

speech protected by the First Amendment. We affirm.

                            Facts and Procedural History

[¶2.]        The facts are largely undisputed. Draskovich was convicted in

magistrate court of driving under the influence of alcohol, and his pro se appeal to

the circuit court was dismissed after he failed to file a brief. On March 7, 2016, he

went to the Minnehaha County Courthouse to inquire about a work permit and to

collect the bond he had posted. He entered the clerk of courts office and spoke about

his bond with accounting clerk April Allenstein. Allenstein had seen Draskovich in

the office on prior occasions, and she testified that he was usually “yelling or

speaking loudly” because he was often angry about his case. She described him as

“angry and frustrated” when he visited on March 7. Allenstein informed

Draskovich that she could not return his bond because the order to do so was not

yet signed by the judge. Draskovich then went to another counter to ask about a

work permit to drive an automobile. Allenstein testified that she did not “think he

got a good answer down there either.”

[¶3.]        After receiving these unfavorable responses, Draskovich returned to

Allenstein and proclaimed: “Now I see why people shoot up courthouses.”

Draskovich then stepped toward the door, opened it, and said: “Not that I would.”

Allenstein was “startled and alarmed.” She said Draskovich had never made a


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statement like that before. As soon as Draskovich left the office, Allenstein

informed security of the incident.

[¶4.]         Draskovich then went upstairs to the court-administration office to

obtain other documents. He spoke with Brittan Anderson. Anderson said

Draskovich was “agitated.” When she informed Draskovich that he would have to

get copies of his documents from the clerk of courts office, Draskovich began to

complain that Judge Mark Salter would not give Draskovich his work permit.1

Anderson attempted to diffuse his anger by informing him that it was not Judge

Salter’s fault because Draskovich could not receive a work permit by law until he

completed treatment. Draskovich then proclaimed, “Well, that deserves 180 pounds

of lead between the eyes,” and he left the office. Anderson informed the court

administrator of the incident, and security arrived to take her statement. At trial,

Anderson testified that she was shocked and surprised by Draskovich’s statement.

She believed that the statement was directed at Judge Salter. She testified that “no

one has ever threatened a judge like that before” and that she had “never heard an

actual threat.”

[¶5.]         The following day, Detective Adam Zishka called Draskovich to discuss

the incidents. Draskovich was still angry and frustrated. With respect to the

statement made to Allenstein, Draskovich yelled:

              And you wonder why people f***ing come in to these buildings
              and f***ing go postal and start shooting people . . . because their
              f***ing dealing with this kind of bull****! That’s not f***ing
              threatening anybody, that’s stating the f***ing facts of the
              world!


1.      Judge Salter had presided over Draskovich’s appeal from magistrate court.

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Draskovich also conceded that he had made the statement to Anderson, but

clarified that what he actually said was: “There’s a good cure for that [inability to

issue a work permit] and it’s 140 grains of lead.”

[¶6.]         Draskovich was charged with threatening a judicial officer based on

his statement in the court administrator’s office. See SDCL 22-11-15. He was also

charged with disorderly conduct based on his statement in the clerk of courts office.

See SDCL 22-18-35(1).

[¶7.]        At the conclusion of a court trial, the circuit court found Draskovich

guilty of both charges. The court ruled his statements were “true threats” rather

than speech that was protected by the First Amendment. On appeal, Draskovich

argues his statements were protected speech that could not be the basis for criminal

conduct.

                                       Decision

[¶8.]        A statute that “makes criminal a form of pure speech[ ] must be

interpreted with the commands of the First Amendment clearly in mind. What is a

threat must be distinguished from what is constitutionally protected speech.” Watts

v. United States, 394 U.S. 705, 707, 89 S. Ct. 1399, 1401, 22 L. Ed. 2d 664 (1969)

(per curiam). A statement that constitutes a “true threat” does not fall within the

realm of protected speech. See Austad v. S.D. Bd. of Pardons & Paroles, 2006 S.D.

65, ¶ 10, 719 N.W.2d 760, 764-65. True threats are

             those statements where the speaker means to communicate a
             serious expression of an intent to commit an act of unlawful
             violence to a particular individual or group of individuals. The
             speaker need not actually intend to carry out the threat.
             Rather, a prohibition on true threats “protects individuals from
             the fear of violence” and “from the disruption that fear

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              engenders,” in addition to protecting people “from the possibility
              that the threatened violence will occur.”

Virginia v. Black, 538 U.S. 343, 359-60, 123 S. Ct. 1536, 1548, 155 L. Ed. 2d 535

(2003) (citations omitted) (quoting R.A.V. v. City of St. Paul, 505 U.S. 377, 388,

112 S. Ct. 2538, 2546, 120 L. Ed. 2d 305 (1992)).

[¶9.]         To determine whether a statement constitutes a true threat, we

“analyze an alleged threat ‘in the light of its entire factual context’ and decide

whether the recipient of the alleged threat could reasonably conclude that it

expresses ‘a determination or intent to injure presently or in the future.’” Austad,

2006 S.D. 65, ¶ 13, 719 N.W.2d at 766 (quoting United States v. Dinwiddie, 76 F.3d

913, 925 (8th Cir. 1996)). To determine whether the recipient could reasonably

conclude that the statement was a true threat, we consider: (1) “the reaction of

those who heard the alleged threat”; (2) “whether the threat was conditional”; (3)

“whether the person who made the alleged threat communicated it directly to the

object of the threat”; (4) “whether the speaker had a history of making threats

against the person purportedly threatened”; and (5) “whether the recipient had a

reason to believe that the speaker had a propensity to engage in violence.” Doe v.

Pulaski Cty. Special Sch. Dist., 306 F.3d 616, 623 (8th Cir. 2002) (en banc); see also

People ex rel. C.C.H., 2002 S.D. 113, ¶ 14, 651 N.W.2d 702, 707.2




2.      In People ex rel. C.C.H., 2002 S.D. 113, 651 N.W.2d 702, we applied the
        Eighth Circuit panel’s list of factors in Doe. See id. ¶ 14, 651 N.W.2d at 707.
        After C.C.H. was released, the en banc court vacated the panel’s decision.
        Doe, 306 F.3d at 623-24 (en banc), vacating 263 F.3d 833 (8th Cir. 2001). The
        factors enumerated above reflect the en banc court’s view.

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[¶10.]       We conclude that Draskovich’s statements constituted true threats

under the relevant factors. First, both witnesses who interacted with Draskovich in

the courthouse reacted as if the statements were true threats. Allenstein testified

that she was “very startled and alarmed” by Draskovich’s statement and that she

immediately contacted security. Anderson testified she reacted with “shock” and

“surprise” to the statement in her office because she had never heard someone

threaten a judge like that before. She also reported the matter to her supervisor,

and security was contacted. Neither witness considered Draskovich’s statements

empty threats.

[¶11.]       Judge Salter also viewed the statement in the administration office as

a true threat. Judge Salter testified that he took Draskovich’s statement as “a

threat to fire a round, a rifle round or some sort of round having a certain grain

bullet, between my eyes.” He testified that this was the only time he had received

such a threat. And when asked how that statement impacted him, he said: “I was

concerned. And I made a conscious effort to be careful with everything I did and

everything around me, in every aspect of my life.” These reactions were not

unreasonable. As Draskovich’s counsel conceded at oral argument, no one thought

Draskovich was “kidding around.”

[¶12.]       Nevertheless, Draskovich points out that despite the reactions of the

recipients, he was not stopped by security or immediately apprehended. Draskovich

argues that this “suggests law enforcement did not view Draskovich’s statements as

constituting a serious or immediate threat to anyone’s safety.” He likens his case to

C.C.H., where an eighth-grade student told a teacher he wanted to kill another


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student. 2002 S.D. 113, ¶¶ 4-5, 651 N.W.2d at 704. We noted that despite the

teacher’s subjective fear, she let both students leave class. Additionally, the school’s

administration did not quickly respond, which supported our conclusion that the

defendant’s statements were not true threats. Id. ¶¶ 16-17, 651 N.W.2d at 707.

[¶13.]       However, in C.C.H., the testimony of the recipient of the statements

was deemed not “compelling,” and the case was largely decided on the other factors.

Id. ¶ 17. Moreover, that case involved the statements of an eighth grader, and we

noted that “[h]ostility and competition among our youth is natural.” Id. ¶ 18. In

contrast, this case involved recipients who were accustomed to dealing with the

public in difficult situations yet were nevertheless startled, shocked, and alarmed

by Draskovich’s statements. Additionally, Draskovich was not an eighth-grade

schoolchild; he was a fifty-five-year-old adult who was becoming increasingly angry

and agitated at court employees. Therefore, the fact that Draskovich was not

immediately apprehended did not make his statements protected speech. The

statements were threatening enough to call security and warrant an immediate

investigation.

[¶14.]       Draskovich’s statements were also unconditional. The statement made

in Watts is illustrative of a conditional threat. There, in the course of a political

protest, the defendant stated: “If they ever make me carry a rifle the first man I

want to get in my sights is L.B.J.” Watts, 394 U.S. at 706, 89 S. Ct. at 1400-01. The

Supreme Court held this statement was of a conditional nature because it depended

upon “induction into the Armed Forces—which [the defendant] vowed would never




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occur.” Id. at 706-07, 89 S. Ct. at 1401. The Court also noted that several people

laughed in response. Id. at 707.

[¶15.]         In contrast, Draskovich was angry and agitated. Additionally, his

statement, “Now I see why people shoot up courthouses,” implied direct action. The

statement was not conditioned on a future event. We acknowledge that Draskovich

combined his shooting statement with a departing statement, “Not that I would.”

But his coy way of combining the statements did not alleviate Allenstein’s concern—

it only exacerbated Allenstein’s fear that the threatened violence could possibly

occur. Draskovich’s other statement was clearly unconditional. It directly stated

that because he could not get a work permit, someone deserved “180 pound of lead

between the eyes.”

[¶16.]         Draskovich’s statement in the clerk of courts office was also directly

communicated to the object of the threat. Although it was not aimed at any

particular person, context is important. Draskovich was not getting the answers he

wanted from the court staff in the clerk of courts office, and he was becoming angry.

In this context, it was certainly reasonable for Allenstein to believe that Draskovich

was directly communicating this threat to her because she was one of the people

who gave him the news he did not want to hear. We acknowledge that the

statement in the court-administration office was not directly communicated to

Judge Salter,3 but that does not dispel its threatening nature. The statement still




3.       Draskovich contends his statement in the administration office was
         ambiguous because it was not clear whether it was directed at Judge Salter
         or those who enacted the law. However, context is important. Draskovich
                                                            (continued . . .)
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instilled fear into those who were present. Moreover, because it was made to a

court employee, the statement would have most certainly been communicated to

Judge Salter.

[¶17.]         We finally observe that although Draskovich did not have a history of

making threats, the recipients had reason to believe that Draskovich could engage

in violence on this occasion. There is no dispute that like his prior visits,

Draskovich was visibly agitated, frustrated, and angry; and both witnesses believed

he was capable of engaging in violence. Allenstein testified that “the way he looked

and the words that he spoke, it wasn’t just an empty threat.” Based on

Draskovich’s “history and his behavior the several times” she had encountered

Draskovich before, she believed his anger was escalating and that “it just seemed

like he was capable.”

[¶18.]         We conclude that in light of Draskovich’s escalating anger at court

staff and Judge Salter, Draskovich’s statements to employees in the courthouse

were not protected speech. In this context, a reasonable recipient would view

Draskovich’s statements as “a serious expression of an intent to commit an act of

unlawful violence” against court staff and Judge Salter. See Black, 538 U.S. at 359,
________________________
(. . . continued)
         was expressing his anger with Judge Salter, and as Anderson’s testimony
         reveals, she interpreted the statement as a threat to Judge Salter.

         At oral argument, counsel also contended that this statement “requires too
         much interpretation” and “too much reading into the terms.” However, it is
         easy to look back on a verbal statement, reduce it to writing, and make a
         post-hoc determination that the statement was unclear. What matters is
         whether a reasonable recipient would, at the time the statement was made,
         understand it as a “serious expression of an intent to commit an act of
         unlawful violence to a particular individual or group of individuals.” See
         Black, 538 U.S. at 359, 123 S. Ct. at 1548.

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#28086

123 S. Ct. at 1548. Draskovich may not have actually intended to carry out the

threat, but the “prohibition on true threats ‘protects individuals from the fear of

violence’ and ‘from the disruption that fear engenders,’ in addition to protecting

people ‘from the possibility that the threatened violence will occur.’” Id. at 359-60

(quoting R.A.V., 505 U.S. at 388, 112 S. Ct. at 2546). Each of these protections is

implicated here. We affirm.

[¶19.]       GILBERTSON, Chief Justice, and SEVERSON and KERN, Justices,

and WILBUR, Retired Justice, concur.

[¶20.]       JENSEN, Justice, not having been a member of the Court at the time

this action was submitted to the Court, did not participate.




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