Some Maine prosecutors stop using a terrorizing law that’s likely unconstitutional

By Marie Weidmayer, Bangor Daily News Staff

A Maine law that prohibits making certain types of threatening statements is likely unconstitutional following a U.S. Supreme Court decision last summer, which has forced the state’s legal community to re-assess how it’s used and — in at least a few cases — drop existing charges. 

Maine’s terrorizing law prohibits making threats to a person that cause them “reasonable fear” of a crime or the evacuation of a building. That’s different from another law on criminal threatening, which has the requirement of fear of “imminent bodily injury.”

The U.S. Supreme Court ruled 7-2 in June that a similar terrorizing law in Colorado was unconstitutional after a man argued he was protected under the First Amendment because his statements were not “true threats.”

Maine’s terrorizing law does not require the prosecution to prove that a terrorizing suspect knew or recklessly disregarded the serious fear caused by their statements, but according to Penobscot County and Piscataquis County District Attorney Chris Almy, the U.S. Supreme Court found that a terrorizing statute should force the state to prove they had that knowledge.

“If you’ve threatened somebody, the Supreme Court is saying, ‘Well, is it an idle threat? Is it a threat that’s covered by free speech? Any of those things?’” Almy said.

Almy said he is no longer charging people with terrorizing, and his office has dismissed one case against a man who’s been “a real nuisance.”

Alison Brauner, a staff attorney with the Maine Indigent Defense Center, said she knows of another district attorney who has begun dismissing terrorizing charges, but others — especially in southern Maine — have not started dismissing them, she said.

Brauner and one of her colleagues, Jenna Zawislak, have filed motions to dismiss terrorizing charges in the last two months, but all three motions are still pending. They’re not aware of judges in southern Maine litigating any motions related to the U.S. Supreme Court ruling, and Zawislak said that might be because they’re waiting on a decision from the Maine Supreme Judicial Court. 

“We have this [U.S.] Supreme Court case that says one thing and a state law that says something different,” Zawislak said. “Who’s the mover and shaker we follow right now?”

While Maine’s law hasn’t been ruled unconstitutional, Bangor defense attorney Zach Smith said he is 99 percent certain that appellate courts would agree with the U.S. Supreme Court. In a recent case, one of Smith’s clients had their terrorizing charges dismissed, but criminal threatening charges added, he said. 

“Eventually they’re going to either have to stop prosecuting these, or they’re going to end up with a Law Court decision that doesn’t go their way,” Smith said.

Smith said he hasn’t had very many terrorizing charges over the years but has heard from several lawyers around the state with clients facing those charges after he drafted a memo about the law change.

The U.S. Supreme Court decision may also affect the enforcement of Maine’s stalking law, because like the terrorizing law, it does not require the suspect to know or recklessly disregard the fact that they were causing serious fear, Almy said. 

“It may apply to stalking, which is more important than terrorizing because stalking often occurs in domestic violence situations,” Almy said.

Maine’s Supreme Judicial Court requested briefs about the U.S. Supreme Court decision and what, if any, impact it has in Maine. It’s unknown when the justices will issue a decision.

While there are laws still on the books that Maine does not enforce, the Legislature may look to update the terrorizing law, Almy and Smith said. The Legislature starts an emergency session in January.