What prosecutors? This is a civil case. It’s her attorneys bringing the case. If she didn’t feel threatened, presumably she would not have.
The important question is whether merely “intimidating” a Black person with racist imagery can reasonably be considered a threat of violence by that Black person, given the history of racial violence in the US (the answer is “Yes”) Or, what puzzlegal said:
There’s your mens rea. Not actual intention to commit violence, but actual intention to create the perception of such.
Correct me if I am wrong but she is alleging that the defendant violated a criminal statute and seeking a restraining order, and damages, in civil court.
The state is not the defendant here.There’s her lawyers, their lawyers, the judge and, it looks like, a jury. What do the state prosecutors have to do with any of that?
This is a hypothetical where Ms. Walker didn’t bring suit in civil court. Nevertheless it is still a crime to threaten a person with violence due to their race. The statute (which Ms. Walker is actually relying upon in her real-life civil case) makes it a felony with up to a $5,000 fine and imprisonment of up to ten years. Prosecutors for the State of West Virginia could build a legal case that the individual threatened Ms. Walker contrary to law, despite the fact that she didn’t feel threatened in this hypothetical.
I have some interest in your hypothetical, because it has happened to me. I came home to find a swastika written on my car. (With a finger, by removing the grime that accumulates.)
I did not feel threatened. I assumed it was a bored kid who wanted attention. Basically a real life troll. So i washed the car and didn’t tell any one. I did find it a bit disturbing, fwiw. But not actually threatening.
In the real life situation you describe, the state never even heard about the issue. No prosecutor builds a case. So it’s a pointless issue.
This case only made the news because she DID feel threatened. As the person sending that image intended.
My only sticking point is between her reasonable feeling of being threatened, and the intention of the person sending the image. I do not feel comfortable assuming the person sending the image is reasonable, and based on my experience with rabid pro-lifers, feel pretty comfortable assuming they’re an unreasonable idiot who would genuinely think that the image would be persuasive, not threatening.
If we’re talking about impact, 100% it’s threatening. If we’re talking about intentional threats, we’re talking about intent, and that’s where I’m not convinced, because I think rabid pro-lifers are really, really stupid.
So, if there is one Black student in a class, and they come in to class to see their history book opened to a page with a burning cross, you don’t see anything wrong with that?
One Black employee in an office, and they come back from lunch to see a newspaper opened up to display a burning cross on their desk, nothing wrong with that either?
You seem to be focusing on how the image itself can be used in a neutral context, while completely ignoring the context in which it actually was used.
The good news is that despite the name, “intentional infliction of emotional distress” (one of the counts in Walker’s lawsuit) is generally understood to be possible either when you are intending a person to feel distressed, or when you act recklessly with respect to whether a person will feel distressed.
So, basically, if your defense is that it wasn’t your goal to terrorize them, with conduct that is sufficiently outrageous, we say that even being aware of the risk and disregarding it is bad enough. You would have to not even be aware at all that combining “KKK imagery” and “direct mailing” and “black person” is something someone might be hurt by. If you throw a figurative rock off an overpass, it’s not that persuasive when you say you didn’t know that car was down there. You know about roads, you know about cars, that’s enough.
I don’t know if what they did here fits that description, but at least it’s not an unqualified get out of jail free stupidity card.
That makes a lot of sense, and however stupid they are, the most charitable interpretation (the “dumb motherfuckers” interpretation) has them acting recklessly. I appreciate the legal clarification.
Let’s not forget the “reasonable person” legal standard which might be applied here.
It may depend on the details of the lawsuit though. That standard is usually used in negligence cases. It could be argued that the defendant here caused harm by sending a message targeting a Black person which any reasonable person could see as threatening and racist. But if Walker’s lawsuit alleges malicious intent, then that standard is irrelevant. I can’t tell from the articles in the OP.
Walker’s lawyer implies that the lawsuit may be one where the reasonable person standard would apply in her language.
“When someone is targeted based on their race and gender, or a combination and targeted with racist violent language that’s too far,” Toriseva said.
“No one considers the image of a Ku Klux Klan man throwing a Nazi salute apparently to be anything but violent and intimidating,” Toriseva said.
Certainly, that second statement seems to be invoking the standard.
The lawsuit alleges negligent infliction of emotional distress as well as intentional. Like you mentioned, the standard does apply in the context of negligence.
If she mocks the threat on social media, as I wrote, it can come to the State’s attention. When I was a child one of the other synagogues in our area was vandalized with swastikas and hate speech. Locals and members of the Jewish community turned out to help whitewash the walls, my family included, and I didn’t have the impression of anybody fearing violence. I don’t remember the exact language we whitewashed, but if it had been a verbose threat of violence I don’t think it would have made a difference. If there was a threat of violence, the fact that the victims didn’t feel threatened should not get in the way of the State should it want to prosecute someone for threatening violence (in addition to the vandalism charge). How the victim feels is, in my opinion, irrelevant to whether a crime was committed.
We had up to now been discussing the accusation that the defendant willfully intimidated or threatened Ms. Walker by threat of force. Intentional infliction of emotional distress, I believe, requires that a reasonable person would think it certain or substantially certain that his action would cause emotional distress.
