State v. Fair, ___ N.J. Super. ___ (App. Div. 2021). Here is how Judge Fisher began his opinion for the Appellate Division in this matter:
“Defendant was charged in a one-count indictment of making terroristic threats within the meaning of ‘N.J.S.A. 2C:12-3a and/or b.’ The indictment was never amended, and defendant never moved for a particularization of what part of N.J.S.A. 2C:12-3 was being charged. Instead, the matter went to trial and, after two days of testimony, the jury was asked to decide: whether, on May 1, 2015, defendant threatened to commit a crime of violence ‘with the purpose to terrorize’ Officer Sean Healey, or whether he made that threat ‘in reckless disregard of the risk of causing such terror,’ or whether he made that threat ‘with the purpose to put [Officer Healey] in imminent fear of death’ under circumstances reasonably causing Officer Healey ‘to believe the immediacy of the threat and the likelihood it would be carried out.’ The jury responded ‘guilty; to this multi-faceted question.”
Defendant appealed, and the Appellate Division reversed. Judge Fisher ruled that “[t[he reckless-disregard portion of N.J.S.A. 2C:12-3(a) is unconstitutionally overbroad because it has the capacity to criminalize speech and expressions protected by the First Amendment. This holding alone requires that defendant be given a new trial since no one can tell from the jury verdict whether defendant was convicted under the unconstitutional portion of N.J.S.A. 2C:12-3(a) or the remaining provisions which clearly pass constitutional muster.”
The panel considered defendant’s constitutional argument even though his notice of appeal had not “identif[ied] the pretrial order that denied his motion to dismiss the indictment on First Amendment grounds as required by Rule 2:2-3 to preserve the argument for appellate review.” Judge Fisher said that “because defendant has raised important constitutional issues that have been thoroughly briefed by both sides, [the panel would] exercise [its] discretion to consider the issue despite defendant’s mistaken failure to comply with Rule 2:2-3.”
After recounting the facts in detail, and discussing caselaw elsewhere, Judge Fisher recognized that courts in other states and the federal Circuit Courts of Appeal had split on the issue of whether a speaker must have intended his or her words as a threat. Siding with the Supreme Court of Kansas and other courts that found a “reckless disregard” standard unconstitutional, the Appellate Division here agreed with defendant’s position. But Judge Fisher was frank to say that, given the split of authority nationwide “the matter is not entirely free from doubt.”
This was especially so since the Supreme Court of the United States has not weighed in on the issue despite being provided with opportunities to do so. In Elonis v. United States, 525 U.S. 723 (2015), two dissenting Justices suggested (“for different reasons”, as Judge Fisher noted), that recklessness might be sufficient. In other cases, where the Court denied certiorari, individual Justices dissented from the denial of review. But Judge Fisher correctly stated that those views did not shed light on the correct answer to the question presented here. The dissenting votes in Elonis were just dissents, and the dissents from denials of certiorari cut no ice. “The denial of a writ of certiorari has zero legal value, an opinion expressing an agreement or disagreement with the denial of certiorari is worth less than zero.” A prior decision, Virginia v. Black, 538 U.S. 343 (2003), “strongly suggests the ‘reckless disregard’ element in N.J.S.A. 2C:12-3(a) is unconstitutionally overbroad.” The panel went with that.
This issue, having divided courts elsewhere, might be ripe for review by our Supreme Court. The Appellate Division also voided the conviction due to an error in the jury charge regarding the need for unanimity. The panel remanded the case for trial on the charges other than that found constitutionally violative, “since we cannot know, from the way in which the case was presented to the jury, whether defendant was convicted for conduct that fell within those parts of N.J.S.A. 2C:12-3 that are not constitutionally overbroad and because the jury instructions did not ensure that the jury was unanimous on at least one part of the statute.”