A man who yelled a profanity and pointed his finger at a Seattle police officer as if he were holding a gun engaged in protected expressive conduct rather than unprotected harassment, a Washington state appeals court has ruled.
On May 26, 2012, Seattle Police Officer Eric Zerr responded to a 911 call reporting a fight. When Zerr arrived on the scene, he noticed a gold Ford Explorer driving on the other side of the street. The Ford slowed down and the driver yelled, “F--- the police,” then pointed his finger at Zerr, who ducked behind a telephone pole.
Zerr radioed other officers, who stopped the vehicle, driven by Artemas Buford Johnson. Officers found no firearms in the vehicle but arrested Johnson for harassment.
In February 2013, Johnson made an agreement with prosecutors that if he avoided trouble for two years, the charges would be dismissed. At some point Johnson violated the terms of the agreement, though records do not specify in what way. Seattle Municipal Court reviewed the police report from May 2012 and found Johnson guilty of harassment in December 2017. Johnson appealed to King County Superior Court, which remanded the case back to the municipal court for that court to issue findings of fact and conclusions of law explaining the guilty verdict.
In June 2018, the municipal court again found Johnson guilty of harassment, explaining that his actions threatened bodily harm to Zerr and that Zerr had a reasonable fear of being shot. Johnson appealed to the superior court, which affirmed the conviction.
Johnson then appealed to the Washington Court of Appeals, which reversed his conviction on First Amendment grounds in its Dec. 27, 2021, decision in City of Seattle v. Buford-Johnson. (The appeals court notes that the caption of the case lists the defendant's name as Buford-Johnson but explains in a footnote that "it appears that the petitioner's name is Artemas Buford Johnson, without a hyphen, and we refer to him as Johnson throughout the opinion.")
Seattle’s harassment provision at the time of the incident in May 2012 read that a person is guilty of harassment if he or she knowingly threatens:
“(a) To cause bodily injury immediately or in the future to the person threatened or to any other person, or …
(d) Maliciously to do any other act which is intended to substantially harm the person threatened or another with respect to his or her physical or mental health or safety …”
Further, it is deemed harassment if:
“(e) The person by words or conduct places the person threatened in reasonable fear that the threat will be carried out.”
The appeals court noted that the evidence supported the court’s finding that Johnson’s conduct placed Zerr in objectively reasonable fear of bodily harm. However, the court explained that for the conviction to stand, Johnson must have actually threatened Zerr. The court said that to comply with the First Amendment, the harassment ordinance prohibits only true threats — a form of expression not protected by the First Amendment.
“Here, we conclude that the evidence does not establish that Johnson made a true threat,” the appeals court wrote. Regarding his statement of “F--- the police,” the appeals court characterized that as “a generalized and political statement of animosity.”
The appeals court then addressed Johnson’s pointing his finger at Zerr as if he were holding a gun. The court explained why it felt that Johnson’s pointing was not a true threat:
“The circumstances here do not convince us that Johnson’s speech and conduct together constituted a true threat. Johnson did not stop or approach Officer Zerr, but instead continued driving north throughout the interaction. Furthermore, Johnson kept his arm hanging out of the window of the car as he continued to drive, and then immediately stopped at a red light. These facts are more suggestive of a casual encounter or idle talk than a serious threat.”
The city argued that Zerr’s reaction of ducking behind a pole suggests that Johnson did engage in a true threat. But the appeals court found that “the fact that Officer Zerr was afraid is not determinative.” What was determinative, it said, was whether a reasonable person would foresee Johnson’s actions as a serious expression of an intent to cause bodily harm.
The appeals court noted that Johnson drove away from Zerr and the officer had no reason to think that Johnson intended to come back and harm him.
The court concluded that “the speech does not rise to the level of a true threat and there is insufficient evidence to support Johnson’s conviction.”
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David L. Hudson Jr. is a professor at Belmont University College of Law who writes and speaks regularly on First Amendment issues. He is the author of Let the Students Speak: A History of the Fight for Free Expression in American Schools (Beacon Press, 2011), and of First Amendment: Freedom of Speech (2012). Hudson is also the author of a 12-part lecture series, Freedom of Speech: Understanding the First Amendment (2018), and a 24-part lecture series, The American Constitution 101 (2019).