March 23, 2017 – Brian Dutcher announced on Facebook in June 2015 that he planned to assassinate then-U.S. President Barack Obama. Recently, the U.S. Court of Appeals for the Seventh Circuit upheld Dutcher’s conviction for threatening the President.

“Thursday I will be in La Crosse,” Dutcher wrote on his Facebook page. “Hopefully I will get a clear shot of the pretend president. Killing him is our CONSTITUTIONAL DUTY!” Dutcher asked followers to pray that his mission would be successful.

After announcing his assassination plans, Dutcher drove to La Crosse from his home in Tomah, where President Obama was scheduled to speak. He told an acquaintance, a security guard at the La Crosse Public Library, that he was “here to kill the President, the usurper, tomorrow at his speech.” The security guard prompted an alert to police.

Dutcher confirmed his threat to police, which delivered him to Secret Service. In a two-hour interview, Dutcher told Secret Service agents that he had a biblical and constitutional duty to assassinate the President and could do it with a sling shot.

Police found a sling shot in Dutcher’s van, but no other weapons. Dutcher also agreed to let agents search his Facebook account, which revealed the threats. He was detained for a mental health evaluation, and repeated his assassination plan to a doctor and a nurse. The next day, he was arrested, and repeated his threats in custody.

Dutcher was found competent to stand trial. After a two-day trial, a jury found that Dutcher willfully threatened the President, in violation of the federal statute, because he “actually intended his statement to be a true threat” or “knew that other people would reasonably view his statement as a true threat” but made it anyway.

A judge in the U.S. District Court for the Western District of Wisconsin sentenced Dutcher to three years in prison with three years of supervised release.

Dutcher appealed, arguing that his words were merely heated rhetoric and he could not be convicted because was unable to carry out his threats – he was only armed with a sling shot and had no ticket to the President’s speech in La Crosse that day. He challenged the sufficiency of the evidence and the jury instructions at trial.

But in U.S. v. Dutcher, No. 16-1767 (March 22, 2017), a three-judge panel for the Seventh Circuit Appeals Court affirmed the conviction, concluding the evidence was sufficient to convict him and the jury instructions did not misguide the conviction.

True Threat

The three-judge panel noted that only “true threats” can violate the federal statute prohibiting threats against the President – “a serious expression of intent to commit an act of unlawful violence to a particular individual or group of individuals.”

Prosecutors must show that the person making the threat “knows” others would interpret the statement or statements as a serious threat of violence, the panel noted.

“A true threat does not require that the speaker intend to carry it out, or even that she have the capacity to do so. The prohibition against threats protects against the fear they engender as well as the risk that they may be carried out,” wrote Chief Judge Diane Wood for the three-judge panel, noting the statute does not criminalize “bad jokes.”

The panel noted that the security guard in La Crosse, Dutcher’s acquaintance, took his statements seriously enough to report them 30 seconds after the interaction, and they were “alarming enough” that the security guard’s supervisor reported them to police.

The panel also noted responses to Dutcher’s post on Facebook, which indicated that others took his threat seriously. One asked him to “stay calm.” Another encouraged Dutcher to vote and asked how killing the President would change anything.

“Dutcher’s contention that his Facebook post was not taken seriously since nobody who saw it informed the police (in fact, he got two ‘likes’) also falls short of undermining the jury’s conclusion,” wrote Chief Judge Wood, concluding Dutcher made a “true threat.”

The panel also rejected Dutcher’s argument that the jury instructions were faulty because they allowed the jury to view the threats based on what a “reasonable person would think” about them, not whether Dutcher “knew” they would be viewed as threats.

“The instructions did not permit the jury to find willful behavior simply because a listener ‘reasonably would view’ Dutcher’s statement as a threat,” Wood wrote. “Instead, it had to find that he made the statement despite knowing, subjectively, that the listener would see it that way.”

Finally, the panel rejected Dutcher’s claim that he could not be convicted unless he “knew” his conduct was illegal, concluding this heightened proof requirement does not apply to a federal statute like prohibiting serious threats against the President.

That heightened requirement, the panel noted, applies only to “highly technical” statutes that pose a danger of ensnaring individuals who might not reasonably know what crosses the line into illegal. “The President’s safety does not turn on a defendant’s familiarity with the United States Code,” Chief Judge Wood explained.