In an en banc opinion, last week the Ninth Circuit agreed with Occupy Wall Streeters that corporations are not people. Sadly for those in Zuccoti Park, the court of appeals opinion is limited to whether corporations come within the scope of a federal statute that criminalizes sending threats through the mail. Unlike the Supreme Court of Montana, the Ninth Circuit is not going to ignore Citizens United. But, for the American incarnation of Time’s Person of the Year, it’s a start.
It isn’t clear to me whether Kurt Havelock would approve of the larger political point about corporate personhood that his case represents. Clearly, Mr. Havelock has political views.
Five days before Super Bowl XLII, Mr. Havelock bought an assault rife and ammunition. He studied the area around the game. He prepared a media package.
On game day, he finalized and mailed a package to a number of media outlets, including the New York Times, the Los Angeles Times, the Phoenix New Times, and the Associated Press. He also included two music web sites on his mailing list – apparently because he had some trouble running a music venue earlier in his career.
The mailings included a number of statements that he had decided to choose “suicide by cop” and that he shouldn’t be resuscitated if that was an option. They also included a “Manifesto.” As the Ninth Circuit describes it,
Havelock’s Manifesto was, in equal parts, a fractured meditation on the purported evils of American society and a past tense account of the experiences, beliefs, and convictions that set off his anticipated “econopolitical confrontation.” Punctuating the Manifesto were references to the Founding Fathers (Benjamin Franklin, Thomas Jefferson), cultural icons (John Rambo, Mad Max, Bugs Bunny), musical groups (Pink Floyd, AC/DC, Bad Religion), video games (Donkey Kong, Grand Theft Auto, State of Emergency), literature (Alice in Wonderland, The Catcher in the Rye), and motion pictures (Road Warrior, Hostel, The Astronaut Farmer). Quotations abounded as well, drawn from such diverse sources as the Hebrew Bible, H.P. Lovecraft, and Pastor Martin Niemöller.
More relevant to what he was seeming to plan, the Manifesto said,
[Y]ou have attacked my family. You have destroyed the futures of my children. So now, I will reciprocate in kind. Only mine will not be the slow crush of a life of a wage slave, or of malnutritioned [sic] sicknesses, or of insurmountable debt. It will be swift, and bloody. I will sacrifice your children upon the altar of your excess . . . . . . . So I will make the ultimate sacrifice; I will give my life. And I will take as many of the baneful and ruinous ones with me. . . . I will slay your children. I will shed the blood of the innocent. . . . Perhaps tshirthell.com or rottencotton.com will print up some cool tshirts [sic] like ‘I SURVIVED SUPERBOWL XLII.’
Thankfully, sitting in the parking lot outside of the game, Mr. Havelock had a change of heart.
He called his fiancé, and told her he was having bad thoughts. He went to the local police, and surrendered his assault rifle. The police called in the FBI, who took a recorded statement.
The United States District Court and Mr. Havelock
Mr. Havelock was then charged with six counts of mailing threatening communications under 18 U.S.C. § 876(c). He was lucky to have a very good lawyer. His lawyer filed a motion to dismiss the indictment that made two arguments.
He argued that Mr. Havelock wasn’t making threats – rather, he was putting events that would have already happened into context. As Mr. Havelock imagined it, he would be dead by the time his packages arrived. He, therefore, wouldn’t be in a position to carry out any harm to those who received his letters.
He also argued that his letters were sent to corporations, and that corporations are unable to be the subject of a threat under section 876.
The district judge denied the motion. Mr. Havelock was convicted at trial. He was sentenced to 366 days in prison – a year and a day.
He appealed, raising the same issues that were in his motion to dismiss.
The Ninth Circuit
In both a panel opinion and in the en banc opinion, the court of appeals resolved the appeal, and dismissed Mr. Havelock’s conviction, on the basis that he threatened corporations, and corporations are not people for purposes of the federal threats statute. Neither the panel nor the en banc court addressed Mr. Havelock’s other issue.
Section 876 makes it a crime to mail a communication “addressed to any other person and containing any threat to kidnap any person or any threat to injure the person of the addressee or of another.”
The en banc court noted that “person” has been restricted to just natural persons in other contexts. For example, when talking about who gets to file in court for free because they are too poor, the Supreme Court has said that only natural people get that benefit, despite the statute’s use of the term “person” to say who can file for free.
So, the court reasoned, it’s possible for “person” to mean just humans and not corporations in a federal statute. The court of appeals then turned to section 876 and how it uses the term “person.” The court noted that,
The term “person” is used no less than twelve times in § 876. See 18 U.S.C. § 876. The term is used in various associations, including: “release of any kidnapped person,” “any threat to kidnap any person or any threat to injure the person of the addressee or of another,” “the reputation of a deceased person, or any threat to accuse the addressee or any other person of a crime.” See id. These associations clearly require that “person” mean a natural person. It simply makes no sense to threaten to kidnap a corporation, or injure “the person” of a corporation, or talk about a deceased corporation.
Based on that, the Ninth Circuit concluded that the same term – “person” – should mean the thing each time it is used in the statute. Because it clearly means “natural person” then a threat to a corporation doesn’t count.
Mr. Havelock’s conviction was, thus, vacated.
What Do We Do With This?
Perhaps Mr. Havelock was simply lucky that he didn’t plan to shoot up the Super Bowl with any other person. Federal conspiracy law would have allowed him to be charged for conspiracy for what he did in planning this and putting the letters in the mail – as long as he worked with someone else to do it.
But without a conspiracy, mailing threatening letters seems an odd thing to charge.
Looking at the facts of Mr. Havelock’s conduct, at least as presented in the Ninth Circuit’s opinion, it doesn’t look like he committed this crime. His letters were meant to go out after he already thought he’d be dead – how can that be a threat?
Indeed, what crime did Mr. Havelock commit? I get that no one likes his behavior – surely the jury verdict was prosecution-friendly jury nullification – but if we’re not going to criminalize thoughts (as we shouldn’t) and we’re going to have the gun laws we have, then mentally unstable loners may just get to sit with a gun outside the Super Bowl thinking murderous thoughts.