Court of Appeals reverses threats-of-violence conviction

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A Minnesota man argued that the state’s threat-of-violence statute was unconstitutional as applied to his posts about violence toward Muslims and other groups. Finding that the prosecution failed to show reasonable apprehension that he would follow through, the Minnesota Court of Appeals recently reversed one of the man’s convictions and remanded another.

Kyle Ketterling used Gettr, a micro-blogging platform, under the username “muslimehunter” to make thousands of posts and comments. While many of his posts expressed preferences to certain political candidates or explained his stance on social issues, some of the posts alluded to or directly called for violent action. He discussed killing many people, including politicians, Muslims, and undocumented immigrants.

Concerned about the posts, a Gettr content moderator reported the posts to law enforcement. Ketterling was known to the Rochester Police Department, as he had made vaguely threatening comments in an email to the local school board, sent a threatening message to KAAL television station, and sent a message that could be deemed as threatening to a state representative. Ketterling had no prior criminal convictions.

Reviewing the Gettr activity, a Rochester police officer became alarmed by the posts. Ketterling was charged with four counts of threats of violence. The first count was based on the message to KAAL. The second, third, and fourth counts were based on Gettr posts.

Ketterling was acquitted by the jury of the first count, and successfully got count 2 vacated after its reversal on appeal. The district court then entered a conviction on count 3. Ketterling sought reversal his conviction on count 3 and also sought review of the jury’s finding of guilt on count 4.

The posts at issue in counts 3 and 4 read:

“This is going to happen here in my State of Minnisomaliota . . . BY FORCE IF NEED BE!!! Ellison and Omar are on our KILL LISTS as are EVERY MUSLIME in  this State! This is a WARNING to EVERY MUSLIME- Assililate [sic], leave this country, or WE WILL HUNT YOU  DOWN AND KILL YOU! Man, woman, or child! GET THE F— OUT!!!”

“This is a warning to ALL MUSLIME in the USA or Canada—assimilate, get out, or WE WILL KILL YOU! MAN, WOMAN, OR CHILD…”

Ketterling argued that the posts were protected political speech rather than “true threats.” He claimed that the posts failed to create a reasonable apprehension that he would follow through on the threats.

“There was no evidence in this trial that anyone even read the social media posts for which Mr. Ketterling was charged with,” John Monnens, assistant public defender, asserted. “It follows, then, that there was also no evidence that anyone was in reasonable apprehension that he would follow through on the alleged threats that were made in these social media posts.”

James Haase, senior assistant Olmsted County attorney, said, “We have two very precisely defined targets, Attorney General Keith Ellison and, presumably, Representative Ilhan Omar. In the context, it makes it clear that those are the intended targets, and it expresses that they are on our kill lists.”

The court found it reasonable that the officer might anticipate that Ketterling would act in some way, such as following through with the threats. However, the court found that the proven circumstances did not support a reasonable inference that Ketterling’s words created a reasonable apprehension that he would follow through. The officer who reportedly was alarmed by Ketterling’s posts did not testify that he had viewed the specific social media posts forming the bases of counts 3 and 4.

“In the context of a threats-of-violence conviction, it is crucial that the state prove reasonable apprehension based on the charged true threat because this approach guarantees that the state is punishing the defendant for constitutionally unprotected speech,” Judge Randall Slieter wrote for the appellate panel, which also included Judges Tracy Smith and JaPaul Harris. “If reasonable apprehension could stem from a general concern that the defendant might act in some way rather than in accordance with a true threat, the state risks punishing an individual for constitutionally protected speech.”

The court reversed the conviction on court 3. It remanded back to the district court to address count 4, which it asserted was also based on insufficient evidence.