Legal mags - forum liability question

[El Chupacabra]

Rest of the case law in which this statute was discussed: (had to split up the post; first was too long)

Subsection (1)(h) requires an objective determination: Whether the words when directed to an average person would tend to induce an immediate breach of the peace. People ex rel. VanMeveren v. County Court, 191 Colo. 201, 551 P.2d 716 (1976).

"Annoy" in this section means "to irritate with a nettling or exasperating effect". Bolles v. People, 189 Colo. 394, 541 P.2d 80 (1975).

"Alarm" in this section means "to arouse to a sense of danger; to put on the alert; to strike with fear; fill with anxiety as to threaten danger or harm". Bolles v. People, 189 Colo. 394, 541 P.2d 80 (1975).

"Repeatedly" is a word of such common understanding that its meaning is not vague. It simply means in the context of subsection (1)(h) that the defendant uses insulting, taunting, or challenging language more than one time. People ex rel. VanMeveren v. County Court, 191 Colo. 201, 551 P.2d 716 (1976).

An electronic surveillance device installed on the victim's car "repeatedly" stored information about her movements thereby allowing the defendant to gain information about her on repeated occasions, and therefore satisfying the requirements of this section. People v. Sullivan, 53 P.3d 1181 (Colo. App. 2002).

Use of "obscene" in subsection (1)(e). Although subsection (1)(e) uses the word "obscene" to describe the speech which is prohibited, that subsection is clearly not designed to regulate the purveyance of "obscenity" as that word is used in Miller v. California (413 U.S. 15, 93 S. Ct. 2607, 37 L.Ed.2d 419, rehearing denied, 414 U.S. 881, 94 S. Ct. 26, 38 L.Ed.2d 128 (1973)). Whatever the requirements of Miller v. California may be in a prosecution for alleged violations of law prohibiting published obscenity, those requirements are inapposite when the question is whether the state may prohibit unwanted verbal assaults on a person within the privacy of his own home. People v. Weeks, 197 Colo. 175, 591 P.2d 91 (1979).

The phrase "in connection with" indicates an intention by the general assembly that a continued relationship between the credible threat and the repeated communications is contemplated. People v. Baer, 973 P.2d 1225 (Colo. 1999).

A person must directly, or indirectly through another person, knowingly make a credible threat to another person and repeatedly make any form of communication with the recipient of the threat. People v. Baer, 973 P.2d 1225 (Colo. 1999).

The repeated communications may occur before, during, or after the credible threat but they must be connected to the threat. People v. Baer, 973 P.2d 1225 (Colo. 1999).

Whether the repeated communications are "in connection with" the threat is a matter of fact just as the existence of a credible threat itself. People v. Baer, 973 P.2d 1225 (Colo. 1999).

Trial court erred in not instructing the jury that defendant must knowingly engage in conduct taken in connection with the threat. People v. Suazo, 87 P.3d 124 (Colo. App. 2003).

The defendant could not have been charged with a violation of subsection (4) until all of the elements of the crime are completed. People v. Bastian, 981 P.2d 203 (Colo. App. 1998).

The defendant may be charged with increased penalties because of amendments to subsection (4) that became effective in July when the defendant did not consummate following the victim until August, but had committed elements of the offense prior to July. People v. Bastian, 981 P.2d 203 (Colo. App. 1998).

The phrase "under surveillance" includes electronic surveillance that records a person's whereabouts as that person moves from one location to another and allows the stalker to access that information either simultaneously or shortly thereafter. People v. Sullivan, 53 P.3d 1181 (Colo. App. 2002).

Evidence sufficient to establish the conviction under subsection (1)(c). Although the evidence could be viewed in two ways, there was sufficient evidence to support the jury's inferences that the defendant did follow the victim in a public place. People v. Cross, 114 P.3d 1 (Colo. App. 2004), rev'd on other grounds, 127 P.3d 71 (Colo. 2006).

Defendant's statement that he was going to kill the victim if she did not see him was sufficient evidence to support a finding that he had made a credible threat. People v. Suazo, 87 P.3d 124 (Colo. App. 2003).

Evidence sufficient to support a finding that contact was made in connection with a credible threat. Defendant called the victim repeatedly on one day and threatened that he would kill her if she did not see him. Following this threat, defendant contacted the victim numerous times in person and by telephone and repeatedly asked to see her. This evidence is sufficient to support a finding that the contact was made in connection with a credible threat. People v. Suazo, 87 P.3d 124 (Colo. App. 2003).

Serious emotional distress was supported by the evidence where the victim testified that she suspected the defendant was stalking her for over a month, that she was concerned about constantly being watched, that she took alternate routes to her destinations, that she was uncomfortable and had stomach aches, that she had trouble sleeping and was anxious, and that she took a leave of absence from work to enter a safe house for her safety. People v. Sullivan, 53 P.3d 1181 (Colo. App. 2002).

Evidence sufficient to support a finding beyond a reasonable doubt of serious emotional distress where the victim testified that defendant's behavior caused her to change her work schedule, take days off from work, and feel unsafe; she was nervous and had trouble sleeping; and she felt she was constantly being watched by defendant. The statute is clear that serious emotional distress need not be such as would compel professional treatment or a breakdown. People v. Cross, 114 P.3d 1 (Colo. App. 2004), rev'd on other grounds, 127 P.3d 71 (Colo. 2006).

Evidence sufficient to establish a "credible threat". The credible threat does not need to be separate from the harassing behavior or verbal. Therefore, evidence that the defendant was only at the victim's place of employment when the victim was there, the defendant would approach and make eye contact with the victim, and the defendant found out where the victim went to church and attended that church was sufficient to establish a "credible threat". People v. Cross, 114 P.3d 1 (Colo. App. 2004), rev'd on other grounds, 127 P.3d 71 (Colo. 2006).

Court's instruction for harassment by stalking was appropriate. The court instructed the jury that "knowingly" applied to both the credible threat and to the conduct in connection with the threat. People v. Cross, 114 P.3d 1 (Colo. App. 2004), rev'd on other grounds, 127 P.3d 71 (Colo. 2006).

The mens rea of knowingly in the crime of emotional distress harassment by stalking does not apply to the element that the stalker be aware that his or her conduct would cause serious emotional distress to a reasonable person. Generally, the mental state applies to all elements of an offense unless the legislative intent is to limit its application. The general assembly recognized the stalker may be oblivious to reality of the emotional distress he or she is causing, and, therefore, it would be absurd to allow a defendant so out-of-touch with reality to avoid criminal prosecution. People v. Cross, 127 P.3d 71 (Colo. 2006).

The penalty provision in subsection (5)(a.5) establishes a sentencing enhancer. Since the statute does not prescribe a burden of proof, the prosecution is required to prove the prior conviction by only a preponderance of the evidence, and the court may properly determine the issue without the jury. Therefore, the court erred in admitting the prior conviction into evidence as an element of the harassment by stalking offense. The error required reversal since the evidence was highly prejudicial and had no or little probative value. People v. Cross, 114 P.3d 1 (Colo. App. 2004), rev'd on other grounds, 127 P.3d 71 (Colo. 2006).

Applied in Verner v. Colo., 533 F. Supp. 1109 (D. Colo. 1982).

[Hutch]

It's 18-9-111, a Colorado criminal statute, which means a prosecutor would have to give a shit, he can't bring a civil action under it.

(1) A person commits harassment if, with intent to harass, annoy, or alarm another person, he or she:
(a) Strikes, shoves, kicks, or otherwise touches a person or subjects him to physical contact; or
(b) In a public place directs obscene language or makes an obscene gesture to or at another person; or
(c) Follows a person in or about a public place; or
(d) Repealed.
(e) Initiates communication with a person, anonymously or otherwise by telephone, computer, computer network, or computer system in a manner intended to harass or threaten bodily injury or property damage, or makes any comment, request, suggestion, or proposal by telephone, computer, computer network, or computer system that is obscene; or
(f) Makes a telephone call or causes a telephone to ring repeatedly, whether or not a conversation ensues, with no purpose of legitimate conversation; or
(g) Makes repeated communications at inconvenient hours that invade the privacy of another and interfere in the use and enjoyment of another's home or private residence or other private property; or
(h) Repeatedly insults, taunts, challenges, or makes communications in offensively coarse language to, another in a manner likely to provoke a violent or disorderly response.

I don't think that the facts of this case rise to the offense which this statute is designed to combat.

Edit: fucking chup beat me to it (again)

[SLAYER]

Chris Gethard aka DefJef banged your mom, and posted the pics on myspace, and those same pics ended up here on TGR.

Classic Blurred.

[72Twenty]

Wait... I thought this was about the telefunken dipshit.

WTF did I miss with DefJef?

I'm so confused.

[El Chupacabra]

Edit: fucking chup beat me to it (again)

I find your comments obscene and directed at me in a personal manner likely to cause offense. I am now in fear for my personal safety as a result of your credible threat.

[Blurred]

18-9-111. Harassment - stalking.

(e) Initiates communication with a person, anonymously or otherwise by telephone, computer, computer network, or computer system in a manner intended to harass or threaten bodily injury or property damage, or makes any comment, request, suggestion, or proposal by telephone, computer, computer network, or computer system that is obscene;

(h) Repeatedly insults, taunts, challenges, or makes communications in offensively coarse language to, another in a manner likely to provoke a violent or disorderly response.

Originally Posted by DefJef:
are you done fucking with other people on the board who are trying to sell things legitimately? you do that again to me and i'll break ya fucking neck

Looks like two offenses have been committed right there.
Maybe suit wants to reinstate DefJefs membership so we can count the numerous threats he's made here.

[Cono Este]

From my experience, threatening someone with criminal action, wihtout any merit, does not lend well to any civil claim.

This guy really is stupid.

[Hutch]

and where did these offenses occur? Colorado? Wyoming? Isle of Man?

[Tippster]

I am so fucking calling the Goatsucker if I ever get arrested. Just sayin'....

[L7]

I'm no lawyer but out of curisosity I've followed a website /forum called vampirefreaks. That site has been directly linked to at least 2 attempted (partially successful) mass murders and 1 multiple murder.(2 in Canada, 1 in the states). That site is still up and running so legal costs have yet to close it.

Obviously the crimes are very serious and prosecutors will do whatever they can to prevent more. Apparently they lack that power. If everyone clearly accepts they own their own posts it must be very hard to pin anything on the board itself. (That site actually glorifies death which is a lot closer to murder than glorifying skiing is to stalking.

[Dexter Rutecki]

Defshithead threatened the suit with a suit. What a maroon.

[grrrr]

I do not now, nor have I ever owned a maroon suit.

[Free Range Lobster]

i gotta say its pretty fucking weak tgr deleted that thread and removed his account

No, its called preemptively covering their ass either way you fucking legal jong.

Anyhow, no, they can't hold you responsible for what someone said on a public forum. No way shape or form.

[iceman]

So if I said somebody should just go down to his office and bust a cap in this moron's head it's all cool, right?

Just askin'.

[Free Range Lobster]

So if I said somebody should just go down to his office and bust a cap in this moron's head it's all cool, right?

Just askin'.

Technically they could take you to civil court for threats blahblahblah, but not TGR.

[Cirquerider]

Wow! Deja vu.

[Art Shirk]

Suit, keep us informed if anything materializes (I doubt it will). A friend of mine runs the IP group for one of Seattle's most prominent firms and I believe they have a branch in Colorado. If something goes down we can enlist his firm's services, I can take on some work, and we can start a maggot fund for defense/countersuits expenses.

[oftpiste]

here is just some things you can find when googling defjef
http://forum.truthout.org/blog/user/DefJef/comments
http://ballettalk.invisionzone.com/i...?showuser=6547
http://forums.johnstonefitness.com/a...hp/t-3824.html
http://www.marketblockbooks.com/nys/...iendID=5580740
http://profile.myspace.com/index.cfm...endID=86657223

just some things you can find on the net. Don't know how he can say he has a right to privacy to information that is public when the average person can google his nick and his real name and find out info this way. Tell the douche you will not file suite against him for threatening others safety if he shuts the fuck up and leaves quietly

Ballet talk? bwahahahaha! Go figure.

[onehotchili]

i have never paid attention to DefJef's posts until now. reading of his pasts threads etc.

what a prick?!?! something had his undies in a bunch?

glad he's out of here...

[atomicboy]

By the tone of his email, I would have to think there are other emails and these other emails may lead to him trying to extort $ from you. Just a hunch though and that doesn't sound legal.

[doublediamond223]

Wow! Deja vu.

Heh, paging Uncle Crud.

[Raps]

Who would have thought i could miss so much after not checkin the board for a couple days........i've been tryin to catch up but damn, this stuff took off

We are obviously behind you Suit, but this guys got nothin just like all have been sayin - guess the internet makes some people go crazy.......

[powder11]

18-9-111. Harassment - stalking.

(e) Initiates communication with a person, anonymously or otherwise by telephone, computer, computer network, or computer system in a manner intended to harass or threaten bodily injury or property damage, or makes any comment, request, suggestion, or proposal by telephone, computer, computer network, or computer system that is obscene;

(h) Repeatedly insults, taunts, challenges, or makes communications in offensively coarse language to, another in a manner likely to provoke a violent or disorderly response.



Looks like two offenses have been committed right there.
Maybe suit wants to reinstate DefJefs membership so we can count the numerous threats he's made here.

man... statute 18-9-111 gets violated about every 10 mins on this forum, but it takes the worlds biggest pussy to say their actually going to do something about it.

next time you piss me off Im going 18-9-111 on your ass!

[Benny Profane]

Hey, what if he's talking to Jackie Chiles?



The board members were lewd, lascivious, salacious, outrageous to my client!

[El Chupacabra]

It's 18-9-111, a Colorado criminal statute, which means a prosecutor would have to give a shit, he can't bring a civil action under it.

Couple points.

1) Pope's right. Criminal statutes generally do not provide a basis for a civil lawsuit. (Conviction of a crime, however, may be strong evidence in establishing civil liability, if the civil claim requires some of the same elements as the crime.)

2) Dubious whether Colorado state law applies to an internet forum based in Wyoming.

3) Even more dubious whether this statute would apply to someone posting publicly-known info about Douchenozzle (which he placed in the public forum in myspace, etc).

3.1) Or whether "harassment" includes berating on an internet forum, where Douchenozzle voluntarily inserted himself, and was free to leave at any time. It's not like anyone was chasing Douchenozzle down.

4) As Blurred pointed out, Douchenozzle's own documented threats of physical violence to other members of the forum seem like they constitute violation of the statute. Plus, his threats were presumably originated in the state of Colorado (where he lives?), so there's a better argument for Colorado law actually applying in this situation.

Conclusion: Suit, nothing to worry about.

Disclaimer: not a licensed Colorado lawyer, so none of this is legal advice, recommend you consult a licensed Colorado lawyer for actual advice.