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The 9th Circuit's decision mirrors the ruling of Western District of Louisiana U.S. Court Judge Donald E. Walter, who earlier this year similarly upheld the First Amendment right of New Orleans native Ashton R. O'Dwyer, Jr. for his offensive, but nevertheless permissible speech in an e-mail directed to the Bankruptcy Court in New Orleans [3].
O'Dwyer was an outspoken critic of the government's response to the 2005 Katrina disaster, and was the first attorney to file a class action lawsuit against state officials in federal court on behalf of the storm's many victims. He also opposed many aspects of the Katrina litigation that ensued in federal court, and was disbarred for his dissident views and the profane language he sometimes employed to express them. The reprisals against him have been ongoing for years, and prosecutors are now fixated on returning him to prison for an alleged e-mail threat against a judge, which O'Dwyer claims he never intended.
The alleged threat was a coarsely-worded plea that sought permission from a Bankruptcy Judge to pay for prescription medication that needed to be refilled. It centers on an e-mail sent by O'Dwyer to Sean McGinn, Case Manager for Judge Jerry Brown of the Bankruptcy Court for the Eastern District of Louisiana. O'Dwyer had filed for bankruptcy and was under court order to request permission to spend money from his Social Security check. Of the five e-mails O'Dwyer exchanged with McGinn, one asked him to remind Judge Brown that he had been out of his anti-depressant medication for some time and was unable to pay for a refill. The e-mail in question of Jan. 29, 2010, with the subject line "RE: Debtor's Reorganization Plan in Case No. 09-12627," read, in part:
"Also convey to Judge Brown a reminder that I have been totally without money since the weekend of January 8th, 9th, and 10th, and that I have been without my anti-depressant medication, for which I have sought leave to pay Walgreen's from my most recent Social Security check, since last weekend. I could not sleep last night, which I attribute to the effects of abruptly stopping my medication on Sunday, the 24th (my pills 'ran out', and I have no money to purchase more). Maybe my creditors would benefit from my suicide, but suppose I become 'homicidal'? Given the recent 'security breach' at 500 Poydras Street, a number of scoundrels might be at risk if I DO become homicidal. Please ask His Honor to consider allowing me to refill my prescription at Walgreen's, and allowing me to pay them, which is a condition for my obtaining a refill."When McGinn received that e-mail, he contacted U.S. Marshals, who showed up about 9-1/2 hours later at O'Dwyer's door, ostensibly to escort him to Walgreen's. However, once outside his residence, O'Dwyer was met by six or more FBI agents who arrested him on a charge of violating the federal anti-threat law, Title 18, U.S.C. Sec. 875(c). They relieved him of his personal firearm and took him directly to St. Bernard Parish Prison in Chalmette, Louisiana, where he was kept in solitary confinement for 34 days before being released by Judge Walter and Magistrate Judge Karen L. Hayes. That imprisonment was more than enough punishment.
Judge Walter saw no intended threat in the e-mail in question and dismissed the government's complaint. In his written opinion, Walter concluded:
"While the Defendant's language may be inappropriate, this Court does not find that the plain language of the allegedly threatening e-mail even rises to that of a threat let alone a true threat."Upon learning that the government's indictment against O'Dwyer had been dismissed, U.S. Attorney Letten's office in New Orleans filed an appeal with the 5th Circuit Court of Appeals. One may reasonably question whether the motive behind this aggressive pursuit of O'Dwyer is political in nature and designed to silence the outspoken former attorney.
O'Dwyer's strident language springs, in part, from his anger at the brutal treatment he suffered previously at the hands of law enforcement in the aftermath of Katrina [4,5]. The objective of the government now is to bring O'Dwyer to a jury trial where it can argue that such language requires that he be stripped of his freedom and removed from society. The penalty for violating the federal anti-threat law is a maximum of five years imprisonment followed by three years of supervised release, a fine of up to $250,000, or both.
It is now up to the 5th Circuit Court of Appeals to decide whether to affirm Judge Walter's dismissal of the federal government's case against O'Dwyer, or subject him and the public to the spectacle of a jury trial over a desperate plea to refill a needed prescription.
Although the government persists in its prosecution of O'Dwyer, the 9th Circuit's recent ruling and the fact that a federal judge has already found O'Dwyer not guilty of a criminal offense indicates that U.S. Attorney Jim Letten and his Assistant U.S. Attorneys Stephen A. Higginson [6] and Gregory M. Kennedy should withdraw the U.S. government's current petition to the 5th Circuit Court of Appeals [7]. The lower court's ruling that O'Dwyer's relatively benign e-mail did not constitute a credible threat should stand. Not only did his communication not constitute a credible threat, it was far less onerous than the threats now dismissed by the 9th Circuit on constitutional grounds.
References:
[1] Carol J. Williams, "Court reverses conviction in online rant against Obama," Los Angeles Times [Online Edition], July 20, 2011, http://www.latimes.com/news/local/la-me-0720-obama-threat-20110720,0,7128388.story
[2] Opinion, United States v. Bagdasarian, Case No. 09-50529 (9th Cir. 2011), July 19, 2011.
[3] Memorandum Ruling, United States v. O'Dwyer, Case No. 10-cr-00034, ED La., Doc. 72, June 24, 2010.
[4] Carl Bernofsky, "U.S. Citizen Ashton R. O'Dwyer, Jr. Part I: Abducted, Brutalized, Tortured, & Falsely Imprisoned," [Video], March 6, 2011, http://www.youtube.com/watch?v=tt1lgUNKBMQ
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