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Court of Appeals Upholds Felony Terroristic Threat Conviction for Whispered Statement to Child

15 Aug

In State v. Hershbergeran unpublished opinion released on August 9, 2012, the Minnesota Court of Appeals upheld, among other things, a defendant’s conviction for felony terroristic threats for whispering in the ear of a child that she and her siblings would “have to pay for what [they] did to him.”

The defendant in the case, Tim Hershberger, had previously been convicted of gross-misdemeanor malicious punishment of the children in question, and the court reasoned that, “Given the relationship history and [the child’s] age of eight, it was reasonable for her to interpret Hershberger’s statement as a threat to commit great bodily harm, and Hershberger acted, if not with the purpose of causing such terror, at least in reckless disregard of doing so.”

Under Minn. Stat. § 609.713, “Whoever threatens, directly or indirectly, to commit any crime of violence with purpose to terrorize another . . . or in a reckless disregard of the risk of causing such terror” is guilty of terroristic threats, and to convict on a charge of felony terroristic threats, a jury must find that the defendant threatened “a specific predicate crime of violence,” as listed in Minn. Stat. § 609.1095.

Essentially, the jury, and subsequently the Court of Appeals, found that Hershberger’s whispered words were a threat of a “a specific predicate crime of violence,” namely first-degree assault. Hershberger’s only statements cited in the opinion came from the child’s testimony at trial that Hershberger whispered a statement to her, “saying we have to pay for what we did to him.”

The opinion does not address any First Amendment concerns with the conviction or Minnesota’s terroristic threats statute, neither does it reference any U.S. Supreme Court precedence regarding the Constitutional limitations on criminally actionable threats.

Hershberger was also convicted of felony stalking with intent to injure, and stalking by return to property without consent.



High School Students, Alumni Face Repercussions for Twitter Account

24 Jul

On July 20, the Student Press Law Center had an interesting report on a Twitter account set up by several students and recent graduates of Worthington High School to gossip about classmates. According to the report, Worthington police said the creators of the account could face charges including terroristic threats, harassment and libel, in addition to discipline from the school. The SPLC has some great commentary on the limits of these potential disciplinary threats. Additional information is available at the Worthington Daily Globe.

Child Porn Convict’s Conditions of Supervised Release Upheld

27 Jun

Yesterday, the Eighth Circuit U.S. Court of Appeals (whose decisions become binding law on all federal district courts in Minnesota) upheld an Arkansas judge’s decision that a man convicted of receiving and possessing child pornography could be prohibited from possessing all pornography, from accessing the Internet, and from owning a computer as terms of his supervised release.

The convict, Justin Deatherage, was sentenced to 70 months in prison, followed by ten years of supervised release, one of the conditions of which being that he not “purchase, possess . . . or use any media forms containing pornographic images or sexually oriented materials…” At the sentencing, the judge stated that “We would just like to keep these sex offenders away from pornography.”

Deatherage appealed, arguing that the condition banning pornography, among others, was “a greater deprivation of liberty than necessary.”

In its decision, United States v. Deatherage, the Eighth Circuit stated that while “broad bans on possessing sexually explicit materials … implicate important First Amendment rights,” it ultimately concluded that “between the child pornography offense, Deatherage’s likely abuse of young children, and his sordid affair with [his mistress], the district court did not abuse its discretion by banning possession of all sexually oriented materials during his ten years of supervised release.”

Brian Johnson Wins Injunction; Distributes Bibles at Pride Fest

25 Jun

This is obviously a little tardy, but an important update to a previous post. Brian Johnson was  granted a temporary injunction by the U.S. Eighth Circuit Court of Appeals that allowed him full access to pass out Bibles on the grounds of the Twin Cities Pride Festival this past Sunday. The district court decision stayed by the injunction can be found here.

Some Local Reaction to America Tradition, Inc. v. Bullock

25 Jun

Today, the Supreme Court of the United States released America Tradition, Inc. v. Bullock, a per curiam opinion summarily reversing the Montana Supreme Court’s decision upholding a state law restricting campaign-related speech by corporations.

Local reaction included an unsurprisingly hostile critique from Rep. Keith Ellison and a statement from Minnesota state campaign finance board Executive Director Gary Goldsmith, who said he doesn’t expect any change in Minnesota law because the state legislature revised Minnesota’s campaign finance law at the end of the 2010 session in response to Citizens United.

As the Strib piece on Goldsmith noted, there is ongoing litigation over Minnesota’s campaign finance law, and an appeal is currently under en banc review by the Eighth Circuit.

Minnesota Supreme Court Says U of M Student’s Rights not Violated by Punishment for Facebook Post

20 Jun

According the Syllabus: “The University of Minnesota did not violate the free speech rights of a student enrolled in the Mortuary Science Program by imposing disciplinary sanctions for Facebook posts that violated academic program rules where the academic program rules were narrowly tailored and directly related to established professional conduct standards.”

I have not read the whole decision yet, but you can read the opinion yourself here. The Void previously reported on the Tatro case here.


The Student Press Law Center has some great analysis of the case here.

Maple Grove Teacher Sentenced for Felony Terroristic Threats

19 Jun

Maple Grove Patch reports that Robert Christopher Baker of Maple Grove was sentenced yesterday to three years probation, a $300 fine,  and 24 days in a Hennepin County workhouse after pleading guilty to a felony charge of making “terroristic threats” against two area high schools.

According to a previous Patch story, the charges stemmed from a Facebook posting by Baker, a former substitute teacher, which included a cartoon figure holding what appeared to be a rocket launcher, with the caption, “First, we’ll blow up Osseo Senior. Then, we’ll blow up Maple Grove Senior.”  Baker said he posted the cartoon because he was angry about being fired from the schools. It is unclear from the reporting whether Baker targeted his cartoon at the schools themselves or any school employees. It is clear, however, that because of these cartoons, Baker is now a convicted felon.

“Terroristic threats” are defined in Minn. Stat. 609.713.