N23NCR23-0250215S : SUPERIOR COURT

N23N CR23-0250216S
N23NCR23-0250217S

STATE OF CONNECTICUT : JUDICIAL DISTRICT OF

: NEW HAVEN

V. : AT NEW HAVEN

PAUL BOYNE : JULY 15, 2024

RULING ON DEFENDANT'S MOITION TO DISMISS

BACKGROUND

On July 21,2023, the defendant Paul Boyne was arrested on eighteen counts of

felony Stalking and Electronic Stalking' for allegedly cyberstalking three Connecticut

'Conn. Gen. Stat. 53a-181c(a)(4) states in pertinent part: "(a) A person is guilty ofstalking
in the first degree when such person commits stalking in the second degree as provided in
section 53a-181d, and (4)such person intentionally directs such conduct at the other person,
in whole or in part, because ofthe actual or perceived race, religion, ethnicity, disability,
sex, sexual orientation or gender identity or expression of such person. Conn. Gen. Stat.
53a-181d(b)(l)(A) states in pertinent part: "(b) A person is guilty of stalking in the second
degree when(1)such person knowingly engages in a course of conduct directed at or
concerning a specific person that would cause a reasonable person to(A)fear for such
person's physical safety or the physical safety of a third person; (B)suffer emotional
distress; or (3) Such person for no legitimate purpose and with intent to harass, terrorize or
alarm, by means of electronic communication, including, but not limited to electronic or
social media, discloses a specific person's personally identifiable information without
consent ofthe person, knowing, that under the circumstances, such disclosure would cause a
reasonable person to:(A)Fear for such person's physical safety or the physical safety of a
third person or(B)Suffer emotional distress. Conn. Gen. Stat. 53a-181f(a) states :"A
person is guilty of electronic stalking when siich person, with the intent to kill, injure, harass
or intimidate, uses any interactive computer service or electronic communication service,
electronic communication system or electronic monitoring system to place another person
under surveillance or otherwise to engage in a course ofconduct that(1)Places such other
person in reasonable fear ofthe death or serious bodily injury to(A)such person,(B)an
immediate family member ofsuch person, or(C)an intimate partner ofsuch person, or(2)
causes, attempts to cause or would be reasonably expected to cause substantial emotional
distress to a person described in subparagraph (A),(B) or(C)of subdivision(1) of this
subsection.
Superior Court Judges. The State alleges the defendant authored and maintained the

website entitled "thefamilycourtcircus.com"from his home in Virginia and used on-line

postings to stalk and threaten the judges. The defendant filed a motion to dismiss all charges

in this case.

The issues raised by the defendant are:(1) whether, as applied, the charged statutes are

an unconstitutional infringement upon the defendant's federal and state constitutional rights

requiring the court to grant the defendant's motion to dismiss pursuant to Practice Book § 41-

8(8)and (9);(2)whether the state has failed to charge a sustainable offense requiring the court

to grant the defendant's motion to dismiss pursuant to Practice Book § 41-8(2); and (3)

whether there is insufficient evidence or cause to justify the bringing or continuing of the

information requiring the court to grant the defendant's motion to dismiss pursuant to Practice

Book §41-8(5).

The issues raised by the state in response to the motion to dismiss are:(1) whether the

defendant is procedurally ban'ed from challenging the sufficiency of the state's evidence

pursuant to Practice Book §41-9;(2) whether the state's three long form informations are free

from defects and properly charge all offenses to withstand scrutiny under Practice Book § 41-

8(2); and (3) whether there is a genuine factual dispute that is not capable of determination

without a trial ofthe general issue under Practice Book § 41-8.

The court finds that the state's three long form informations are free from defects and

properly charge all offenses to withstand scrutiny under Practice Book § 41-8(2). Insofar as

the defendant raises claims pertaining to the sufficiency of the state's evidence pursuant to

Practice Book § 41-8(5) or claims pursuant to Practice Book § 41-8(9), such claims are baired

by Practice Book § 41-9. The defendant's constitutional claims pursuant to Practice Book §
41-8(8) are not barred by Practice Book § 41-9; however,the court finds that the constitutional

issues raised are not capable of determination without a trial ofthe general issue; see Practice

Book § 41-8. These claims present questions typically reserved for the jur}^ Accordingly,the

motion to dismiss is denied.

A. The Defendant is Procedurally Barred from Challenging the Sufficiency of the

State's Evidence Under Practice Book § 41-9

Practice Book § 41-9 provides in relevant part: "No defendant who . . . has been

arrested pursuant to a warrant may make a motion under subdivisions(5)or(9)of Section 41-

8." Practice Book § 41-8 provides in relevant part: "The following defenses or objections, if

capable of determination without a trial of the general issue, shall, if made prior to trial, be

raised by a motion to dismiss the information: ...(2) Defects in the information including

failure to charge an offense;...(5)Insufficiency of evidence or cause to justify the bringing

or continuing of such information or the placing of the defendant on trial;...(8) Claim that

the law defining the offense charged is unconstitutional or otherwise invalid; or(9)Any other

grounds."

The defendant raises constitutional challenges arguing that the bringing and

continuation of prosecution is based on the content of the defendant's protected speech;

therefore, the state has insufficient evidence to justify the bringing or continuing of such

prosecution because the charged statutes are unconstitutional as applied to the defendant

and/or, removing the defendant's protected speech from consideration, there is not enough

evidence to support the charges raised.

The defendant's claim that there is not enough evidence to support the charges against

him is a sufficiency of the evidence argument. The defendant's motion to dismiss is denied

insofar as it raises insufficiency of evidence arguments pursuant to Practice Book § 41-8(5)

and arguments on "other grounds" pursuant to Practice Book § 41-8(9) because the defendant

was arrested pursuant to a wan*ant and, consequently, those arguments are baixed by Practice

Book § 41-9. See State v. Dulos, Superior Court, judicial district of Stamford-Norwalk,

Docket No. CR-19-0148554-T(January 14, 2020, Blawie, J)(stating that because defendant

was arrested pursuant to warrant, Practice Book § 41-9 barred motion to dismiss criminal

charges under Practice Book § 41-8(5)). The motion is also denied insofar as it raises
insufficiency of evidence claims under General Statutes § 54-56.^ "Although § 54-56 appears
on its face to conflict with the provisions of Practice Book § 41-9, our Appellate Court has

ruled that the insufficient evidence and insufficient cause grounds of that statute may not be

raised through a pretrial dismissal motion in a case in which the defendant was arrested on a

warrant signed by ajudge. See State v. Dills, 19 Conn. App.495,563 A.2d 733(1989)." State

V. Zapadka,49 Conn. Supp. 248,249-50, 873 A.2d 270(2004).

B. Defendant's Claims under Practice Book("CPB")Section 41-8(2)

The defendant claims that the state has failed to charge an offense under Practice Book

§ 41-8(2) because the charged statutes are unconstitutional as applied to the defendant and/or,
removing the defendant's protected speech from consideration, there is not enough evidence
to support the charges raised. The state argues that there is no defect in any ofthe informations,
that it did not fail to charge a valid offense, and that the defendant appears to challenge the

warrant affidavits, which are separate from the information.

^ General Statutes § 54-56 provides: "All courts having jurisdiction of criminal cases shall at all times have
jurisdiction and control over informations and crirnina! cases pending therein and may,at any time, upon motion
by the defendant, dismiss any information and order such defendant discharged if, in the opinion of the court,
there is not sufficient evidence or cause to justify the bringing or continuing of such information or the placing
of the person accused therein on trial."
 The court finds that there is no defect in the informations and that the state did not fail

to charge a valid offense."[A]n information that states the exact section and subsection of the

statute under which a defendant is charged, as well as the time and place of the alleged

unlawful event, is sufficient to charge a defendant with such offense." State v. Alston, 141

Conn. App. 719, 732, 62 A.3d 586, cert, denied, 308 Conn. 943, 66 A.3d 884 (2013).

Furthermore, there is no authority that permits a defendant to challenge the waixant affidavits

under Practice Book § 41-8(2). See State v. Diilos, supra, Superior Court, Docket No. CR-19-

0148554-T ("under Practice Book § 41-8(2), a motion for dismissal is properly considered

against the information, and not the warrant itself [emphasis in original]). Accordingly, the

defendant's motion to dismiss is denied insofar as it raises arguments that the state's

informations are defective and/or fail to charge an offense.

C. Defendant's Claims under CPB § 41-8(5) and/or(8)

The defendant's challenge may.be viewed as an evidentiary sufficiency challenge

under Practice Book § 41-8(5), or as a constitutional challenge under Practice Book § 41-8(8)

The defendant raises a constitutional claim that the statutes, as applied, are unconstitutional,

while the defendant simultaneously argues that the constitutional issues leave the state with

insufficient evidence. To the extent that the defendant is, in effect, challenging whether the

state has sufficient evidence to continue his prosecution on the basis of the constitutional

issues raised, the motion to dismiss is denied pursuant to Practice Book § 41-9. Even if the

defendant's challenge is viewed as solely raising an as-applied constitutional challenge, the

defendant's motion to dismiss is denied because:(1) there is a genuine factual dispute that is

not capable of determination without a trial ofthe general issue; see Practice Book § 41-8;(2)

the determination of whether speech rises to the level of a true threat is usually a question of
fact for the jury; see State v. Pelella, 327 Conn. 1, 23, 170 A.3d 647 (2017); and (3) whether

the defendant possessed the requisite mental state is a question for the jury. See Counterman

V. Colorado,600 U.S. 66, 143 S. Ct. 2106,216 L. Ed. 2d 775 (2023); Banks v. Commissioner

ofCorrection, 339 Conn. 1, 35,259 A.3d 1082(2021).

The defendant's defenses or objections in support of his motion to dismiss must be

"capable of determination without a trial ofthe general issue." See Practice Book § 41-8. The

state argues that because the defendant did not concede that he authored the blog posts at

issue,^ there is a genuine factual dispute that is not readily capable of determination without a

trial of the general issue. Although a motion to dismiss may raise issues of fact that would

require a hearing to determine the facts; see Coughlin v. Waterbury, 61 Conn. App. 310, 315,

763 A.2d 1058 (2001) ("[w]hen issues of fact are disputed, due process requires that an

evidentiary hearing be held with the opportunity to present evidence and to cross-examine

adverse witnesses"); the question of whether the defendant indeed authored the blog posts at

issue is one ofthe general issues to be tried and is likely a question for the jury.'^ Additionally,
whether the defendant's speech is, indeed, protected speech, is in dispute. The determination

of whether speech rises to the level of a true threat is usually a question offact for the jury;

^ In his reply brief, the defendant cites to United States v. Cassidy, 814 F. Supp. 2d 574,581 (D. Md.2011), for
its proposition that"there has been a tradition of protecting anonymous speech, particularly anonymous political
or religious speech." It appears that the defendant wishes to draw the conclusion that this language provides that
the defendant does not have to admit that he authored the blog. tlie language from Cassidy, however, is taken
out of context. The case further provides that "[e]ven though the Internet is the newest medium for anonymous,
uncomfortable expression touching on political or religious matters, online speech is equally protected under the
First Amendment . . . Even though numerous court decisions have made a point to protect anonymous,
uncomfortable speech and extend that protection to the Internet, not all speech is protected speech." (Citations
omitted.) Id., 582. All this case provides is that speech, even if made anonymously, is entitled to the same First
Amendment protections as speech that is not made anonymously, and, therefore, it is also subject to the same
exceptions - including the speech integral to criminal conduct exception and the true threats exception.
^ "Moreover, a court cannot make a critical factual finding based on memoranda and documents submitted by
the parties." Id., 315.
see State v. Pelella, supra, 327 Conn, at 23 (quoting United States v. Dillard, 795 F.3d

1191,1200 [10th Cir. 2015]);^ and is also one ofthe general issues to be tried in this matter.

Furthermore, the defendant raises a due process claim, and the "[d]ue process

[analysis] requires a fact-based balancing of the importance of the individual's interests

against the needs of society to infringe upon those interests." State v. Floyd, 217 Conn. 73,

89, 584 A.2d 1157 (1991). This language suggests that there must be an adequate factual

record to support a determination that a defendant's due process rights were violated.^ The
United States Supreme Court's decision in Counterman v. Colorado,supra,600 U.S.66^ also
requires the state to prove subjective awareness on behalf ofthe defendant, thereby creating a

factual issue for the jury to resolve, i.e., whether the defendant possessed the requisite criminal

intent. See Banks v. Commissioner of Correction, supra, 339 Conn. 35 (whether perpetrator

had requisite criminal intent is question for jury). Accordingly, the defendant's motion to

dismiss raises issues that are not capable of determination at this stage.

Whether speech is protected by the First Amendment is typically a question of law.

See Connickv. Myers,461 U.S. 138,148 n.7,103 S. Ct. 1684,75 L. Ed. 2d 708(1983)("[t]he

^ In Dillard, the court expressed: "Because [the objective] test involves a fact-intensive inquiry, we have
consistently held that whether a defendant's statement is a true threat or mere political speech is a question for
the jury.... Ifthere is no question that a defendant's speech is protected by the First Amendment,the court may
dismiss the charge as a matter of law But, absent an unusual set of facts, the question whether statements
amount to true threats is a question generally best left to a jury." (Citations omitted; internal quotation marks
omitted.) United States v. Dillard, 795 F.3d 1191, 1199(10th Cir. 2015).
^ "This court has frequently noted the imprudence of adjudicating constitutional questions in a factual vacuum.
... A part)' mounting a constitutional challenge to the validity of a statute must provide an adequate factual
record in order to meet its burden of demonstrating the statute's adverse impact on some protected interest of its
own,in its own particular case, and not merely under some hypothetical set offacts as yetunproven."(Citations
omitted; internal quotation marks omitted.) State v. Floyd, Id. at 78.
^ In Counterman, the issue was whether the First Amendment requires proof that the defendant had some
subjective understanding of the threatening nature of his statements. Counterman v. Colorado, supra, 600 U.S.
at 69. The US Supreme Court held "that it does, but that a mental state of recklessness is sufficient." Id., 69.
"The State must show that the defendant consciously disregarded a substantial risk that his communications
would be viewed as threatening violence." Id., 69.
inquiry into the protected status of speech is one of law, not fact"); Moskowitz v. Coscette^ 3

Fed. Appx. 1, 4 (2d Cir. 2001)("[wjhether speech is constitutionally protected is a question

of law for the court to decide"). In the present case, the defendant asserts that his speech is

constitutionally protected under the First Amendment and argues in support that his speech

touches upon matters of public concern and does not constitute a true tloreat.

"Speech deals with matters of public concern when it can be fairly considered as

relating to any matter of political, social, or other concern to the community ... or when it is

a subject of legitimate news interest; that is, a subject'of general interest and of value and

concern to the public.... The arguably inappropriate or controversial character of a statement

is irrelevant to the question whether it deals with a matter of public concern." (Citations

omitted; internal quotation marks omitted.) Snyder v. Phelps, 562 U.S. 443, 453, 131 S. Ct.

1207, 179 L. Ed. 2d 172(2011).

"Whether speech involves a matter of public concern is a question of law to be

determined on the basis ofthe content,form, and context ofa given statement, as revealed by

the whole record." (Internal quotation marks omitted.) D'Angelo v. McGoldrick, 239 Conn.

356, 369,685 A.2d 319(1996); see also Daley v. Aetna Life & Casualty Co., 249 Conn. 766,

111, 734 A.2d 112(1999)(where employee brought action alleging termination in retaliation

for statements made, court concluded "that whether the subject matter addressed by a

particular statement is of public concem involves a question of law for the court"). "In
considering content, form, and context, no factor is dispositive, and it is necessary to evaluate

all the circumstances of the speech, including what was said, where it was said, and how -it

was said." Snyder v. Phelps, supra, 562 U.S. 454.

 The court has reviewed the arrest warrants that reference.statements that the defendant

allegedly authored and maintained on the familycourtcircus.com website, also referred to as a

"blog." The court has also reviewed the Appendix Addendum to the Defendant's Motion to

Dismiss, which contains copies of other statements purportedly found on the

familycourtcircus.com blog. The statements in these posts may be viewed as touching upon
/

matters of public concern because they can be viewed as an expression ofdistaste for the court

system. See Snyder v. Phelps, supra, 562 U.S. 453. Simultaneously, some of the posts may be

viewed as true threats. The issue of whether these statements constituted true threats such that

they are not protected by the First Amendment is a question that must be reserved for the jury

at trial.

The statements at issue do not fall under the speech integral to criminal conduct

exception. For the speech integral to criminal conduct exception to apply, the defendant's

speech must be accompanied by some unprotected nonspeech conduct.^ See State v. Billings^

217 Conn. App. 1, 27-28, 287 A.3d 146 (2022)("a course of conduct under § 53a-181d can

be established through conduct and unprotected speech alike, similar to that of the criminal

harassment statute"[internal quotation marks omitted]), cert, denied,346 Conn.907,288 A.3d

217(2023).

^ "The United States Supreme Court case from which the speech integral to criminal conduct exception mainly
emerged, Giboney v. Empire Storage & Ice Co., 336 U.S.490,69 S. Ct. 684, 93 L. Ed. 834 (1949), established
that the first amendment extends no protection to speech or writing used as an integral part ofconduct in violation
of a valid criminal statute. ... The contours of the Giboney exception have yet to be clearly defined and have
been subject to considerable criticism, especially in light of more recent United States Supreme Court precedent,
such as Holder v. Humanitarian Law Project, 561 U.S. 1, 27-28, 130 S. Ct..2705, 177 L. Ed. 2d 355 (2010),
which appears incongruent with Giboney^s rationale Nevertheless, for the speech integral to criminal conduct
exception to apply, the speech in question must, at a minimum, be integral to criminal conduct other than
protected speech. See, e.g.. United States v. Petrovic, 701 F.3d 849,855(8th Cir. 2012) C[t]he communications
for which [the defendant] was convicted under[18 U.S.C.] § 2261A(2)(A) were integral to his criminal conduct
as they constituted the means of carrying out his extortionate threats'). It does not apply if a defendant is doing
nothing more than speaking."(Citations omitted; emphasis in original; internal quotation marks omitted.) State
V. Billings, supra, 217 Conn. App. 28-30.
 In Billings^ the defendant argued on appeal "that there was insufficient evidence to

convict him of stalking in the second degree in violation of§ 53a-l 81 d and harassment in the

second degree in violation of §'53a-183." (Footnote omitted.) Id., 23. The Appellate Court

was"not persuaded that the defendant engaged in any nonspeech conduct for which the speech

in question could be integral. The record [reflected] that the defendant engaged in a single

Facebook conversation with a third party on his own Facebook page, which occurred after

[the victim] already had unfriended him on Facebook. It is undisputed that... the defendant

did not send any messages directly to [the victim] or her family, show up at [the victim's]

home or place ofemployment, or cause others to do so." Id., 30. The court expressly disagreed

with the state's argument that, by logging into his own Facebook account and posting on his

own Facebook page, the defendant engaged in nonspeech conduct for which the speech in

question was integral. Id., 31. "Those actions, in and of themselves . . . cannot constitute
nonspeech 'conduct'for purposes ofthe speech integral to criminal conduct exception. Rather

they constitute the means by which the defendant spoke in this case." Id., 31.

In Billings, the Appellate Court also found that the state conceded that the defendant's

Facebook statements did not fall within the category of true threats. In the present case, the

state advances the argument that the defendant's statements which appear on the

"familycourtcircus.com" blog constitute true threats to the three complainants. Billings did

not involve a prosecution predicated upon allegations oftrue threats but rather upon the speech

integral to criminal conduct exception to the 1 Amendment, a position not taken by the state

in these cases. Accordingly, the holding in Billings regarding a Amendment challenge to

the stalking statutes as applied to the defendant is not dispositive ofthe cases presently before

this court.

TIT
 "[I]fthreatening speech directed at a public official satisfies the traditional true threats

doctrine, it is not constitutionally protected."^ State v. Taupier^ 330 Conn. 149,177, 193 A.3d

1 (2018), cert, denied, 139 S. Ct. 1188; 203 L. Ed. 2d 202, 87 U.S.L.W. 3326(2019). "[T]he

[f]irst[a]mendment... permits a [s]tate to ban a true threat True threats encompass those

statements [through which] 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 actually intend to carry out the threat. Rather, a prohibition on true

threats protect[s] individuals from the fear of violence and from the disruption that fear

engenders, in addition to protecting people from the possibility that the threatened violence

will occur.... Thus, we must distinguish between true threats, which, because oftheir lack of

communicative value, are not protected by the First Amendment, and those statements that

seek to communicate a belief or idea, such as political hyperbole or a mere joke, which are

protected."(Internal quotation marks omitted.) Id., 167-68.

"In the context of a threat of physical violence, [wjhether a particular statement may

properly be considered to be a [true] tlireat is governed by an objective standard - whether 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 intent to harm or assault...

.[A]lleged threats should be considered in light of their entire factual context, including the

surrounding events and reaction of the listeners. ... Prosecution under a statute prohibiting

threatening statements is constitutionally permissible [as] long as the threat on its face and in

^ The Taupier court elaborated on this point, stating, "[i]f the evidence establishes beyond a reasonable doubt.
. that the defendant's threatening speech was so unequivocal, unconditional, immediate and specific as to the
person threatened, as to convey a gravity of purpose and imminent prospect of execution ... and that the
defendant had the constitutionally required mens rea for true threats directed at private individuals, we cannot
perceive why his speech should, nevertheless, be protected because it was directed at a public official." Id., 178.

U-.
the circumstances in which it is made is so unequivocaI,.unconditional,immediate and specific

as to the person threatened, as to convey a gravity of purpose and imminent prospect of

execution . . . (Citation omitted; internal quotation marks omitted.) State v. Krijger, 313

Conn.434,450,97 A.3d 946(2014)."[I]mminence...in the sense ofimmediacy, is only one

factor to be considered in detennining whether a statement constitutes a true threat under,our

law State v. Pelella, supra, 327 Conn. 9."Though relevant, the primary focus of our

inquiry is not immediacy but whether the thi'eat convey[s] a gravity of purpose and likelihood
of execution."'^ Id., 17.

"[A] determination of what a defendant actually said is just the beginning of a threats

analysis. Even when words are threatening on their face, careful attention must be paid to the

context in which those statements are made to determine if the words may be objectively

perceived as threatening." (Internal quotation marks omitted.) State v. Krijger, supra, 313

Corm. 453. "An important factor to be considered in determining whether a facially

ambiguous statement constitutes a true threat is the prior relationship between the parties.

When the alleged tlneat is made in the context of an existing or increasingly hostile
relationship, courts are more apt to conclude than an objectively reasonable speaker would

In State v. Pelella, the court clarified that"[t]o the extent that the challenged language [in Krijger] can be read
to suggest that a true threat must be subject to immediate execution unburdened by any conditions," the language
is inconsistent with relevant precedent. State v. Pelella, supra, 327 Conn. 13.
'* "[T]he social costs ofa threat can be heightened rather than dissipated if the threatened injury is promised for
some fairly ascertainable time in the future ... for then the apprehension and disruption directly caused by the
threat will continue for a longer rather than a shorter period."(Internal quotation marks omitted.) Id., 17.
See also Haughwout v. Tordenti, 332 Conn. 559,574-75,211 A.3d 1 (2019). In Haughwout, a civil case, the
court noted that "[ajlthough most of the plaintiffs comments were individually not an 'explicit threat,' that
phrasing does not render them protected speech, because 'rigid adherence to the literal meaning of a
communication without regard to its reasonable connotations derived from its ambience would render [statutes
proscribing true threats] powerless against the ingenuity of threateners who can instill in the victim's mind as
clear an apprehension of impending injury by an implied menace as by a literal threat.... Put differently, even
veiled statements may be true threats."(Citation omitted.) Id., 574-75.

IT
expect that the statement would be perceived by the listener as a genuine tlireat."'^ Id., 453-
54.

Importantly,"[when] a communication contains language which is equally susceptible

of two interpretations, one threatening, and the other nonthreatening, the government carries

the burden of presenting evidence serving to remove that ambiguity." (Internal quotation

marks omitted.) Id., 458.

"In order to demonstrate the existence of a true threat at trial, the state must do more

than demonstrate that a statement could be interpreted as a threat. When ... a statement is

susceptible of varying interpretations, at least one of which is nonthreatening, the proper

standard to apply is whether an objective listener would readily interpret the statement as a

real or true threat; nothing less is sufficient to safeguard the constitutional guarantee of

freedom of expression. To meet this standard ... the state [is] required to present evidence

demonstrating that a reasonable listener, familiar with the entire factual context of the

defendant's statements, would be highly likely to interpret them as communicating a genuine

threat of violence rather than protected expression, however offensive or repugnant."

(Emphasis in original; internal quotation marks omitted.)State v. Pelella, supra, 327 Conn, at

18. Additionally, since Pelella was issued, the United States Supreme Court released its

decision in Counterman v. Colorado, which held that the state is required to prove some

In Krijger, the court concluded that "although the defendant's statements were offensive, they did not rise to
the level of a true threat, and, consequently, they are entitled to the protection of the first amendment despite
their inflammatory nature." Id., 438. The defendant's statements were: "[m]ore of what happened to your son is
going to happen to you," and "I'm going to be there to watch it happen."(Internal quotation marks omitted.) Id.,
440. For context, "Kepple's only son had been injured in a car accident several years [earlier] while he was an
officer with the [Groton Police Department]." (Internal quotation marks omitted.) Id., 440. "[T]he entire
exchange lasted no more than fifteen or twenty seconds."(Internal quotation marks omitted.) Id., 440. The court
agreed with the defendant that the evidence was insufficient to support his conviction for threatening in the
second degree and breach of peace in the second degree. Id., 445.

4^
subjective awareness on the part of the defendant, i.e., a recklessness standard. See

Counterman w Colorado, supra, 600 U.S. 66.

The facts as described in United States v. Turner, 720 F.3d 411 (2d Cir. 2013), cert,

denied, 574 U.S. 814, 135 S. Ct. 49, 190 L. Ed. 2d 29 (2014X are most akin to the present

case. In Turner, the defendant threatened the deaths of tlii*ee circuit court judges in a post

made on his own website. Id., 413. The defendant's statements in Turner were more explicitly

stated than the defendant's statements here. In Turner the defendant stated, among other

things: "Let me be the first to say this plainly: These Judges deserve to be killed. Their blood

will replenish the tree ofliberty. A small price to pay to assure freedom for millions." Id., 415.

In Turner the defendant also posted an update to his website providing the judges' official

public work addresses and a map of the area, and stating that "[tjheir home addresses and
maps will follow soon."'"^ Id., 415. The defendant's posts in Turner were also never sent by ■

the defendant directly to thejudges; rather, onejudge "received an email from an organization

called Citizens Against Hate that contained a link to [the defendant's] website," while another

judge was informed by his clerks and later informed the third judge about the posts. Id., 416.
It is noteworthy that the defendant expressly stated the following: "While I can't

legally undertake killing, I may - just MAY - be able to say enough of the right things, to

enough ofthe right people, to make it happen: People who have lost everything on account of
you. ... People with nothing to lose by hunting you down and murdering you. . .. While I

certainly would never use this blog for such an endeavor, my eight years on the radio and on

the internet has gotten me in touch with enough ofthe right people to get it done. I know how

See Sunny fVaters, LLC v. Huntoon, Superior Court, judicial district of New London, Docket No. CV-16- ,
6102039-S(May 26, 2017, Newson, J.)(suggesting that reasonably objective listener may believe defendant's
knowledge of individual's address equates to defendant's ability to carry out threat).

tr
to get it done. ... Judge Lefkow made a ruling in court that I opined made her 'worthy of

death.' After I said that, someone went out and murdered her husband and mother inside the

Judge's Chicago house." Id., 417. The court opined that "[s]uch serious references to actual

acts of violence carried out in apparent retribution for a judge's decision would clearly allow

a reasonable juror to conclude that [the defendant's] statements were a true threat." Id., 421-

22. Furthermore, "[gjiven that [the defendant's] statements publicly implied a causal

connection between [his] calls forjudges'deaths and actual murders, his statements about [the

three judges] were quite reasonably interpreted by the jury as the serious expression of intent

that these judges, too, come to hann." Id., 422.

The Turner court also rejected the defendant's argument that because he never

explicitly wrote,"I will kill them," his words could not reasonably have been interpreted as a

tlireat. Id., 422. In that case, the court found that"[the defendant] did not merely advocate law

violation or express an abstract desire for the deaths of [the three judges]. Fie posted

photographs, work addresses and room numbers for each of the judges, along with a map and

photograph ofthe courthouse."'^ Id., 423.

In State v. DeLoreto, the defendant, after a bench trial, was convicted for breach of

peace. State v. DeLoreto, State v. DeLoreto, 265 Conn. 145, 147, 827 A.2d 671 (2003). The

defendant raised First Amendment-and other constitutional challenges to his conviction.'^ Id.,

151-52. The court concluded that the defendant's statements constituted true threats. Id., 151.

Compare United States v. Stewart, 420 F.3d 1007, 1018 (9th Cir. 2005)("[ujnder the objective definition,
Stewart's statement that he wanted to target ajudge and 'string the motherfucker up and cut her throat, his throat,
and make it like a copycat so that people would do the same thing,' combined with an offer to provide weapons
and money reward, can reasonably be interpreted as a serious expression of intent to harm or assault the target;
here, a federal judge").
The trial court had previously denied the defendant's motion to dismiss "on the grounds that: (1) the
defendant's statements constituted fighting words and, therefore, were not protected speech; and (2) § 53a-l 81
is neither unconstitutionally vague nor overbroad." Id., 151.

4S-
The defendant had stated the following to a police officer: "I'll kick your ass, punk; Come on,

right now,"(Internal quotation marks omitted,) Id., 156. The court considered the statements

made in light oftheir entire factual context. The court noted that:"The defendant had a history

of confrontational behavior with [the officer], having 'given him the finger' on several

occasions in the past. Moreover,[the officer] was off duty, unarmed, and on foot, while the

defendant was in his car when he made the first two statements. The defendant was driving

erratically, speeding up, slowing down and cutting in front of [the officer]. Additionally, the

defendant, in connection with one of the statements, suddenly swung open his ear door,

jumped out ofthe ear, and ran toward [the officer] while pumping his fists ,.. Id., 157.

Other courts, presented with different facts, have concluded that statements did not

constitute true threats. In United States v. Cook, 472 F. Supp. 3d 326(N.D. Miss. 2020), the

defendant made several Facebook posts about his experiences with the criminal justice

system. The defendant's posts included references to two district attorneys, a narcotics officer,

and "cowardly judges." Id., 327. The defendant suggested that he had the names of the

arresting officer's family members,-past phone numbers, and address information. Id., 330-

31. The government did not allege that the defendant ever directly contacted any ofthe people
named in his posts, and that "for [the narcotics officer] or any of his family members to see

[the defendant's] posts, they would have to actively search for [the defendant's] Facebook

page and scroll through his 'wall' to find the actual posts." Id., 331.

The court opined that the defendant's "posts are not 'true threats' precluding him from

First Amendment protection.[The defendant's] posts, when read in context, lack entirely the
specificity required to bring them under the umbrella of a true tlireat. Nowhere in any post
does [the defendant] explicitly state that he plans to physically harm [the narcotics officer], or
any other named public official. 'God willing I'm going to take them out' is not the same as

telling an FBI agent you have a pistol and you will use it to kill the president or repeatedly

and directly telling another person in a chat room that you were going to kill the students in

your high school while making references to one of the Columbine shooters.. .. When read

in context, [the defendant's] posts are nothing more than a manifesto of his grievances

regarding people and processes which he perceived to have wronged him; they do not rise to

the level of true threats." (Citations omitted.) Id., 335. The court further expressed that

"[wjhile the Court does not find it to be in good taste to post publicly available identifying

records,[or]'poems'written which vaguely reference information known about employees of

public entities ... the Court recognizes that [the defendant] does have the constitutionally

protected right to say such things" because his posts discussed matters of public concern. Id.,

336.

Turning to the present ease, the defendant relies on Obsidian Finance Group, LLC v.

Cox for its proposition that "blogs are a subspecies of online speech which inherently suggest

that statements made there are not likely provable assertions of fact;"'^ Obsidian Finance

Group, LLC v. Cox, 812 F. Supp. 2d 1220, 1223 (D. Or. 2011). Obsidian's language is not

conclusive. Statements are not automatically fictitious, hyperbolic, or void of sincerity by

virtue of the fact that they are posted on a blog.

Moreover, "a true threat does not need to be communicated directly to the intended

victim."'^ United States v. Khan,937 F.3d 1042, 1051 (7th Cir. 2019)(quoting United States

Obsidian involved an action for defamation. See Id.

The defendant's statements in Khan were very specific and indicated that the defendant was giving himself
thirty days to commit murder and that he was carrying his gun with him to work as an Uber driver. See Id., 1047-
49.

4^
V. Parr, 545 F.3d 491,497 [(7th Cir. 2008), cert, denied, 556 U.S. 1181, 129 S. Ct. 1984, 173

L. Ed. 2d 1083 (2009)]); see also Counterman v. Colorado^ supra, 600 U.S.85 ("[t]rue-threats

doctrine covers content-based prosecutions for single utterances of'pure speech,' which need

not even be communicated to the subject of the threat"); United States v. Bradbwy, 111 F.

Supp. 3d 918,922(N.D. Ind. 2015)("The requirement that the threat be communicated to the

threatened party is foreclosed by [United States v. Parr,supra,545 F.3d 497]....[T]he court

held that a true threat 'doesn't need to be communicated directly to its victim.'").

One interpretation of the blog posts is that they are a general, hypothetical, and

hyperbolic expression of an opinion, particularly one pertaining to matters of public concern.

The threat was not directly communicated to anyone as it appeared on a blog post which none

of the affiants state was sent to them by the defendant. The defendant's statements are not

specific as to place or time, and do not communicate any intent on behalf of the defendant to

act on his statements. There has been no physical manifestation of the alleged threats since

the inception of the defendant's blog.

On the other hand, the fact that the defendant lists the addresses of, and

makes/models/license plate numbers of vehicles driven by the affiants, combined with his

description of the manner in which they might be harmed may suggest that the defendant's

language constituted a true threat. The defendant's statements clearly identify several judges

and attorneys; there is no question as to whom the defendant's statements refer. The defendant

clearly associates these attorneys and judges with imagery of murder and shooting, and even

goes so far as to include an image ofa judge within the scope of a gun.

On the basis ofthe foregoing, assuming the state meets its burden ofproof, ajury could

reasonably conclude that the defendant's speech constituted true threats.

 At trial, a jury would receive Connecticut Criminal Jury Instruction 2.2-8, True

Threats. They would be instructed that the defendant claims his prosecution for stalking and

electronic stalking is barred by the First Amendment because it is based solely on his speech.

The jury would also be instructed that the state contends the defendant's speech is not

protected by the First Amendment because it constitutes a true threat. After receiving

instructions on the definition of true threats and mens rea, the jury would be instructed that,

after considering the defendant's statement and all of the surrounding circumstances in which

they were spoken, if the jury concluded that the state had proven beyond a reasonable doubt

that a reasonable person in the position of the complainants readily would interpret the

statements as a serious expression of an intent to commit an unlawful act of violence, and not

as mere puffery, bluster, jest or hyperbole, and further, that the defendant was aware of and

consciously disregarded a substantial and unjustifiable risk that his statements could be

interpreted in this manner, then the statements are true threats that are not protected by the

First Amendment. Such a determination is properly in the hands of a jury, not the court.

D. Defendant's Claims that the Statutes are Facially Unconstitutional and/or Vague

In his Reply brief,the defendant asserts the following:"the defendant has made a claim

that the statutes as applied to him are facially unconstitutional... because the prosecution of

the defendant under these statutes is based entirely on the content ofthe speech." See Def. Br.,

p. 2. The defendant's constitutional challenges, as argued in his motion to dismiss, are as-

applied constitutional challenges because the defendant has not identified specific language

in the statutes that is vague or void on its face, but instead argues that, as applied to him, the

statutes target his constitutionally protected speech. Insofar as the defendant; attempts to raise

T9-
facial challenges, he has not raised the vagueness or facial challenges in his motion to dismiss

and has raised them for the first time in his reply brief.

"[I]t is inappropriate to consider an issue raised for the first time in a reply

memorandum. It is improper for [a] court to consider a basis for a motion to dismiss that was

not raised as a ground for the motion in the motion itself or in the opening memorandum."

Bey v. Offthe Hook Lounge Waterbuiy, LLC,Superior Court,judicial district of New Haven,

Docket No. CV-23-6134746-S (March 19, 2024, Stewart, J.); see also Durante v. Cody,

Superior Court, judicial district of New Haven, Docket No. CV-20-6106534-S (April 18,

2023, Stewart, J)("[i]t is improper for [a] court to consider a basis for a motion to dismiss

that was not raised as a ground for the rnotion in the motion itself. . . "); Walls v. OP&F

Schroder Trust, Superior Court, judicial district of Stamford-Norwalk, Docket No. CV-98-

016424-S (October 14, 1998, Mintz, J)(23 Conn. L. Rptr. 199,200 n.l)(same). Accordingly,

the court declines to consider the defendant's argument that the statute is facially

unconstitutional or unconstitutionally vague because such arguments were not raised in his

original motion to dismiss.

Based on the foregoing, the motion to dismiss is DENIED.

BY THE COURT,

Hon. Peter L. Brown