BY THE COURT
freedom of speech referred to in the First Amendment to the
United States Constitution does not include a freedom to
disregard restrictions on certain well-defined and narrowly
limited categories of speech that the government may regulate
and, in some circumstances, punish. A true threat falls
within one category of speech the government may punish.
threats encompass those statements where the speaker means to
communicate a serious expression of an intent to commit an
act of unlawful violence to a particular individual or group
of individuals. The speaker need not intend to commit
portion of K.S.A. 2018 Supp. 21-5415(a)(1) allowing for a
conviction if a threat of violence is made in reckless
disregard for causing fear is unconstitutionally overbroad
because it punishes conduct that may be constitutionally
protected under some circumstances.
of the judgment of the Court of Appeals in an unpublished
opinion filed June 23, 2017.
from the Douglas District Court; Richard M. Smith, judge.
Judgment of the Court of Appeals affirming the district court
is reversed. Judgment of the district court is reversed.
Clayton J. Perkins, of Capital Appellate Defender Office,
argued the cause and was on the brief for appellant.
Duncan Butler, assistant district attorney, argued the cause,
and Charles E. Branson, district attorney, and Derek Schmidt,
attorney general, were with her on the brief for appellee.
First Amendment to the United States Constitution prohibits
the government from abridging our freedom of speech. But that
freedom of speech is not without limits. The United States
Supreme Court has recognized certain well-defined and
narrowly limited categories of speech that the government may
restrict and even criminally punish. One such category is
that of a true threat. This appeal raises questions about
what constitutes a true threat and, more specifically,
whether the only way to make a true threat is to actually
intend to cause fear. Timothy C. Boettger raises these
questions by challenging the constitutionality of a provision
in the Kansas criminal threat statute, K.S.A. 2018 Supp.
21-5415(a)(1), that allows for a criminal conviction if a
person makes a threat in reckless disregard of causing fear.
We hold this reckless disregard provision is
unconstitutionally overbroad, and we reverse Boettger's
conviction because it is based solely on that
and Procedural Background
convicted Boettger of one count of criminal threat for
statements he made to Cody Bonham. Boettger frequented the
convenience store where Bonham worked and often spoke with
Bonham and another employee, Neil Iles.
night of the incident, Boettger came into the store and
bought a cup of coffee. He spoke to Iles for a few minutes
near the cash register. He told Iles he was upset because he
had found his daughter's dog in a ditch. The dog had died
from a gunshot wound, and Boettger was angry the
sheriff's department had not investigated. Iles recalled
Boettger saying "these people . . . might find
themselves dead in a ditch somewhere." Iles thought
Boettger was referring to the shooter. Based on past
conversations, Iles knew Boettger often had an intense way of
speaking and a tendency to get upset. Iles thought Boettger
was no more upset than he had been in other situations, and
Iles perceived Boettger's reaction as a general complaint
about the sheriff's department's inaction.
walked out of the store but soon came back. At that time,
Bonham was stocking a shelf in the aisle nearest to the door.
Boettger and Bonham were well-acquainted, having visited
between 600 and 800 times over the course of the previous
four years. Boettger also knew Bonham's family. He had
dated Bonham's aunt and he had known Bonham's father
since high school. Boettger knew Bonham's father was a
detective in the Douglas County Sheriff's Office.
Iles, Bonham knew Boettger had an intense way of speaking
about certain subjects. But on this occasion, Bonham felt
Boettger was unusually intense as he told Bonham about being
upset because of what happened to his daughter's dog and
the sheriff's department's failure to investigate.
Boettger clenched his fists, and he was visibly shaking.
Bonham further testified that Boettger spoke as he
approached, saying, "You're the man I'm looking
for." According to Bonham, Boettger continued by saying
"he had some friends up in the Paseo area in Kansas City
that don't mess around, and that I was going to end up
finding my dad in a ditch." Boettger ended the
conversation by saying, "'You remember
that.'" Iles saw Boettger speaking with Bonham but
could not hear their conversation.
Boettger left, Iles noticed that Bonham appeared to be
distraught. Bonham relayed what happened and called his
father to tell him about the incident. Bonham drafted an
email to record the details of his conversation with Boettger
and called the police to report the incident. At trial,
Boettger admitted he knew Bonham's father was a member of
the sheriff's department but denied threatening to harm
him. He asserted Bonham was mistaken about what he said.
Boettger denied mentioning friends from the Paseo area,
saying instead that he had referred to friends in North
Kansas City. Boettger generally claimed he had no intent to
threaten anyone and did not mean Bonham or his family any
harm. He felt he was on good terms with the family based on
his past interactions and relationship with Bonham's
father and aunt.
district court instructed the jury a conviction required
finding that Boettger "threatened to commit violence and
communicated the threat with reckless disregard of the risk
of causing fear in Cody Bonham." The jury convicted
Boettger of one count of reckless criminal threat under
K.S.A. 2016 Supp. 21-5415(a)(1). Boettger timely appealed,
raising five arguments. The Court of Appeals rejected his
arguments and affirmed his conviction and sentence. See
State v. Boettger, No. 115, 387, 2017 WL 2709790, at
*1 (Kan. App. 2017) (unpublished opinion).
timely petitioned for review, raising the same five arguments
he had made before the Court of Appeals. This court granted
review but only on three of the issues: (1) whether the
reckless form of criminal threat under K.S.A. 2018 Supp.
21-5415(a)(1) is unconstitutionally overbroad; (2) whether
the reckless threat provision is unconstitutionally vague;
and (3) whether the jury instruction on the elements of
reckless criminal threat was clearly erroneous.
three issues before this court all relate to Kansas'
criminal threat statute, K.S.A. 2018 Supp. 21-5415(a). There,
the Legislature defined "criminal threat" to
include a threat to "(1) [c]ommit violence communicated
with intent to place another in fear . . . or in reckless
disregard of the risk of causing such fear."
Boettger's arguments are specific to the last portion of
this definition-a threat made in reckless disregard of the
risk of causing fear.
first two arguments, Boettger asserts the reckless criminal
threat provision is both unconstitutionally overbroad and
vague. Issues about the constitutionality of a statute
present questions of law over which this court has unlimited
review. State v. Whitesell, 270 Kan. 259, 268, 13
P.3d 887 (2000) (overbreadth and vagueness). Boettger carries
the burden to establish the statute is unconstitutional. See
State v. Williams, 299 Kan. 911, 920, 329 P.3d 400
addressing Boettger's arguments, we must consider whether
he has preserved his constitutional challenges for appellate
review. Generally, a party cannot raise an issue for the
first time on appeal, and Boettger did not present the
arguments to the district court. See Williams, 299
Kan. at 929. Even so, Boettger argued to the Court of Appeals
that both his overbreadth and vagueness challenges fell
within recognized exceptions to the preservation rule. He
specifically pointed to exceptions allowing a party to raise
a constitutional argument for the first time on appeal if it
presents a question of law or if consideration of it is
necessary to prevent the denial of a fundamental right. See
State v. Herbel, 296 Kan. 1101, 1116, 299 P.3d 292
(2013). The Court of Appeals accepted those justifications.
See Boettger, 2017 WL 2709790, at *2, 5. It also
concluded Boettger had standing to raise the argument that
K.S.A. 2018 Supp. 21-5415(a)(1) makes unlawful
constitutionally protected conduct even though he has not
asserted that he himself was engaged in a protected activity.
See Williams, 299 Kan. at 919 (holding a litigant
has standing to assert overbreadth challenge that seeks to
protect First Amendment rights of third parties).
State did not cross-petition for review to ask us to consider
either of these holdings. When a party does not
cross-petition for review on an issue decided adversely to
that party by the Court of Appeals, we deem it as settled on
review. Ullery v. Othick, 304 Kan. 405, 415, 372
P.3d 1135 (2016) (Court of Appeals holding not included in
petition or cross-petition for review not before this court);
see Supreme Court Rule 8.03 (h)(1) (2018 Kan. S.Ct. R. 56).
therefore, consider his constitutional challenges to the
1: K.S.A. 2018 Supp. 21-5415(a)(1) is unconstitutionally
first argues the reckless form of criminal threat
criminalizes speech protected under the First Amendment to
the United States Constitution and is therefore overbroad.
"[A]n overbroad statute makes conduct punishable which
under some circumstances is constitutionally protected."
Whitesell, 270 Kan. 259, Syl. ¶ 6. A party
arguing a statute is overbroad must show "(1) the
protected activity is a significant part of the law's
target, and (2) there exists no satisfactory method of
severing" constitutional applications of the law from
unconstitutional ones. 270 Kan. 259, Syl. ¶ 6; see
Dissmeyer v. State, 292 Kan. 37, 40-41, 249 P.3d 444
(2011); see also, e.g., Houston v. Hill, 482 U.S.
451, 459, 107 S.Ct. 2502, 96 L.Ed.2d 398 (1987) (A statute
"that make[s] unlawful a substantial amount of
constitutionally protected conduct may be held facially
invalid".); Grayned v. City of Rockford, 408
U.S. 104, 114, 92 S.Ct. 2294, 33 L.Ed.2d 222 (1972) (A
statute may be overbroad "if in its reach it prohibits
constitutionally protected conduct.").
determine whether the reckless disregard provision is
overbroad, we must consider the scope of speech protected by
the First Amendment.