United States District Court, Eastern District of Pennsylvania
ELIZABETH T. HEY UNITED STATES MAGISTRATE JUDGE
This case presents the question whether the government has presented probable cause that the defendant uttered a “true threat.” For the following reasons, I conclude that the government has met its probable cause burden.
I. PROCEDURAL HISTORY
On September 25, 2014, Special Agent Mark Lazarowitz of the Department of Veterans Affairs (“VA”) swore out an affidavit in support of a criminal complaint charging Raymond Lee Saville with one count of threatening a United States official in violation of 18 U.S.C. § 115(a)(1)(B). The Honorable David R. Strawbridge approved and issued the complaint the same day. Mr. Saville was arrested and had his initial appearance on September 29, 2014, before the Honorable Henry S. Perkin, and his preliminary hearing was continued. That hearing took place before me on October 21, 2014, after which I took the matter under advisement and afforded counsel time to provide further authority for their respective positions. Counsel have each submitted letter briefs, and the matter is now ripe for disposition.
At the hearing, the government called Agent Lazarowitz who adopted his affidavit. The affidavit sets forth the following allegations of fact, all of which occurred in 2014. By way of background, the affidavit states that in attempting to locate Mr. Saville to arrest him on a separate federal complaint pending in this district, Agent Lazarowitz learned that charges were also pending against him in Wilmington, Delaware. Agent Lazarowitz also learned that on or about July 2, police officers in East St. Louis, Illinois, came in contact with Mr. Saville when he said he was lost, and that the officers found a butcher knife under the front seat of Mr. Saville’s car as well as evidence related to the Delaware case. After returning to his hotel, Mr. Saville checked himself into the VA Medical Center (“VAMC”) in St. Louis, and VA police placed him under arrest based upon the federal warrant. He was turned over to the United States Marshal Service, and following a hearing was ordered transferred to this district where he had his initial appearance on July 9, 2014. On September 9, the Honorable Linda K. Caracappa ordered him released to a shelter for veterans. On September 11, he was transferred to the Coatesville VAMC.
The affidavit goes on to allege that on or about September 22, personnel at the VAMC told Mr. Saville that he was going to be discharged soon and began to discuss his treatment plan. Mr. Saville said to them that he was going to “kill the cop who arrested me. I’m going to kill the Illinois State Trooper or the FBI who stole my identification.” These are the words that are alleged to be threatening in this matter.
Agent Lazarowitz testified that the staff at the Coatesville VAMC deemed the threats credible and called the VA police requesting that Mr. Saville be arrested and removed from the center. The date the threats were made was Monday, September 22, and the agents decided not to immediately arrest him but to seek a criminal complaint, which was issued on Thursday, September 25. Agent Lazarowitz testified that the staff continued to believe that the threats were credible and that Mr. Saville should be removed as a threat to patients and staff. The agents did not arrest and remove him until the following Monday, September 29, because they believed it was better for Mr. Saville to remain at the VAMC than in custody. Defense counsel established on cross examination that the unit where Mr. Saville was being treated was a locked psychiatric unit, and that Mr. Saville was “happy” and did not present a problem for the staff until they told him he was going to be discharged. Id. at 44. Additionally, the defense introduced a page of Coatesville VAMC progress notes from the day in question in which Mr. Saville is quoted as saying that he wanted to kill himself as soon as he got out and then made the above-referenced threat.
III. APPLICABLE LAW
Section 115(a)(1)(B), in relevant part, makes it a crime for anyone who “threatens to . . . murder . . . a Federal law enforcement officer . . . with intent to retaliate against such official . . . on account of the performance of official duties.” The only element in dispute for purposes of probable cause is whether Mr. Saville’s words constitute a threat within the meaning of this statute, and specifically whether they qualify as a “true threat” as opposed to speech that is protected by the First Amendment. The defense argues that Mr. Saville’s words should be viewed “in the context of Mr. Saville merely ranting as a patient in a psychiatric unit, and [that] considering the lack of any specificity as to date, time or place, as well as the reaction of those who heard the ranting, it is clear that the ranting did not amount to a serious threat.” The government in contrast asks the court to find that “the context in which the statements were made, the non-conditional nature of the retaliatory statements, and the reaction o[f] the listeners renders Saville’s statements ‘true threats.’” This determination is guided by the Supreme Court’s decision in Watts v. United States, 394 U.S. 705 (1969), in which the Court distinguished true threats from constitutionally protected speech by considering the context of the speech, the audience, whether the statements were conditional in nature, and the response of the audience. Id. at 707-08. In 1991, the Third Circuit relied on Watts in adopting an objective test requiring:
the defendant intentionally make a statement, written or oral, in a context or under such circumstances wherein a reasonable person would foresee that the statement would be interpreted by those to whom the maker communicates the statement as a serious expression of an intention to inflict bodily harm upon or take the life of the President, and that statement not be the result of mistake, duress or coercion.
United States v. Kosma, 951 F.2d 549, 557 (3d Cir. 1991) (emphasis in original); see also, e.g., United States v. Richards, 271 Fed.Appx. 174 (3d Cir. 2008) (applying Kosma reasonable person test to alleged threat against former president’s wife under section 879); United States v. Oakley, Cr. No. 02-123-1, 2003 WL 22425035 (E.D. Pa. May 30, 3002) (applying Watts and Kosma to determine if written communication to judge constituted a true threat under section 115).
The court in Kosma explained that the proscription against making threats is “meant to protect” not only the threatened official’s “life, but . . . is also meant to prevent the disruptions and inconveniences which result from the threat itself, regardless of whether there is any intention to execute the threat.” 951 F.2d at 556. Likewise, the Supreme Court noted that the prohibition on true threats “protect[s] individuals from the fear of violence” and “from the disruption that fear engenders, ” and “from the possibility that the threatened violence will occur.” R.A.V. v. City of St. Paul, 505 U.S. 377, 388 (1992). Thus, the speaker’s subjective intent to carry out the threat is not an element of the definition of a true threat.
The defense disputes the continued viability of Watts and Kosma in light of the Supreme Court’s decision in Virginia v. Black, 538 U.S. 343 (2003), where the Court held that the act of cross-burning by itself was not prima facie evidence of an intent to discriminate. In language the defense now relies on, the Court wrote, “[t]rue threats encompass those statements where the speaker means to communicate a serious expression of an ...