Mom’s Facebook harassment conviction splits appellate panel

A mother who made threatening social media posts toward a police officer after her son’s death has lost an appeal of her harassment conviction. The Indiana Court of Appeals divided on the sufficiency of evidence supporting her conviction, with a dissenting judge declaring the state’s criminal harassment statute “unconstitutionally overbroad and facially invalid because it is susceptible of prohibiting protected expression.”

Constance McGuire was convicted of Class B misdemeanor harassment after she posted on Facebook that members of the Kokomo Police Department “better watch out” and that “this mother is on a rampage and ready to shoot and kill.” McGuire took to social media after the death of her son, who died after consuming methamphetamine during a traffic stop in which Kokomo police officer Jeramie Dodd was involved.

Upon her son’s death, McGuire made a Facebook post that included several threats against Dodd that were later reported to police by one of McGuire’s more than 1,000 Facebook friends. The Indiana Court of Appeals heard oral arguments in the case last month, considering McGuire’s argument on appeal that her specific Facebook posts were constitutionally protected and that her conviction amounted to an unconstitutional impairment of speech.

An appellate panel consisting of Judges L. Mark Bailey, Patricia Riley and Rudolph Pyle III split on McGuire’s conviction, with the majority affirming the trial court in Constance J Mcguire v. State of Indiana,18A-CR-02554.

First, the majority concluded that McGuire had the expectation that the offending conduct would come to the attention of Dodd when she transmitted the messages online. It additionally found her “profanity-laced threat” urged Dodd to commit suicide, which the majority considered as obscene under Indiana Code § 35-45-2-2(a)(4)(B).

However, Pyle dissented in a separate opinion, finding no evidence was introduced showing McGuire’s Facebook posts fit within an unprotected category. Specifically, Pyle noted that the state failed by charging McGuire with harassment instead of intimidation, and that the harassment statute is “unconstitutionally overbroad.”

The dissenting judge continued to argue that the “true threat” analysis did not apply to the case and the state did not present sufficient evidence of McGuire’s intent.

“This dissent does not condone the disturbing, crass statements made by McGuire about Officer Dodd,” Pyle wrote in his dissent. “However, our primary duty is to uphold the principles enshrined in the Federal and State Constitutions. When a statute falls short, this Court has a duty to reverse a conviction, even if it might leave a sour taste in one’s mouth.”

But in affirming, the majority found McGuire’s speech amounted to a constitutionally proscribable true threat and that her speech could be regulated consistent with federal constitutional principles.

“… [I]n view of the true threat contained in the speech, there is sufficient evidence McGuire lacked the intent to engage in ‘legitimate communication’ with regard to the United States Constitution,” Bailey wrote for the majority.

“Moreover, because the speech was not unambiguously political and posed a threat to safety, there is sufficient evidence McGuire lacked the intent to engage in ‘legitimate communication’ with regard to the Indiana Constitution,” the majority concluded. It therefore found no failure of proof and determined McGuire’s conviction concerned proscribable speech.