Updated on December 21, 2019
“Reckless Disregard for Causing Fear” is Unconstitutionally Over Broad
State v. Boettger, No. 115,387 (Kan. Oct. 25, 2019).
Issue: Is the Kansas criminal threat statute, which allows conviction if a person makes a threat in reckless disregard of causing fear, constitutionally over broad?
Answer: Yes. Recklessness is an unconstitutionally over broad mens rea requirement, because this necessarily includes statements where a speaker did not intend to cause fear of violence.
Facts: After the sheriff’s department failed to investigate an unrelated issue, Timothy Boettger went to a local gas station. Boettger told the cashier “these people. . . might find themselves dead in a ditch somewhere.” Boettger allegedly stated to another employee, whose father is a police officer, that he “had some friends up in the Paseo area in Kansas City that don’t mess around, and that [he] was going to end up finding [his] dad in a ditch.” A jury convicted Boettger of criminal threat based on these statements.
Discussion: The Kansas Court of Appeals upheld Boettger’s conviction for making a threat in reckless disregard for the risk of causing fear. The Kansas Supreme Court reversed on First Amendment grounds. Boettger claimed that the statute was constitutionally over broad and thus did not comport with the First Amendment. The court found the statute was unconstitutionally over broad because it could apply to statements where a speaker did not intend to cause the fear of violence, violating the First Amendment.
U.S. Const. amend. I.
Kan. Stat. Ann. § 21-5415(a)(1) (Supp. 2018).
Virginia v. Black, 538 U.S. 343, 359 (2003)