Nevada Supreme Court Reverses “Criminal Anarchy” Conviction

The case is Rosales v. State (Nev. Sup. Ct. Feb. 28, 2012) (unpublished 3-judge opinion). An excerpt:

“Criminal anarchy is the doctrine that organized government should be overthrown by force or violence, or by assassination of the executive head or of any of the executive officials of government, or by any unlawful means.” NRS 203.115(1). To convict Rosales of criminal anarchy, the State had to show either that Rosales’s graffiti and other writings advocated the “overthrowing or overturning organized government by force or violence,” NRS 203.115(2)(a), or that his writings justified the killing of executive officers “with the intent to teach, spread or advocate the propriety” of the doctrine that organized government should be overthrown by force or violence. NRS 203.115(2)(c).

The State supported its criminal anarchy charge with evidence of graffiti sprayed on buildings throughout Reno. This graffiti encouraged killing of police officers and violently attacking their families. It also lauded as heroes those who had killed police officers in the past and generally supported enmity toward the police. The State also produced evidence of Rosales’s taunting phone calls to the police, in which he called 911 and asked that officers be sent “down here, so I can shoot [the]m in the face.” Shortly after the phone calls, menacing graffiti appeared that listed the response times of officers and identified them by squad car. A letter mailed to the police station said “another one must die, a cop in the wrong place at the right time will be end of games when they come across me.” Finally, Rosales allegedly created a flyer (though it’s not clear that it was distributed) that applauded Larry Peck for killing Officer John Bohach in the line of duty. It also exhorted others to kill police officers and sodomize their wives. Other graffiti sprayed throughout south Reno threatened District Attorney Richard Gammick, warning, for example, that he “will die soon” and that he “must be killed now!!” …

Nevada’s criminal anarchy statute proscribes advocating the overthrow of organized government by force or violence, NRS 203.115, and because this statute has the potential to reach constitutionally protected speech, see Brandenburg v. Ohio, 395 U.S. 444, 447–49 (1969), we read its proscription narrowly. Richard Gammick, though he is an elected official, is not “organized government.” Equating Rosales’s encouragement to kill a single elected official with the overthrow of organized government would call the constitutionality of NRS 203.115 into serious question.

Rosales’s writings, including those directed at the police, are both hate-filled and heinous, but they provide no hint that he sought to rouse the populace to overthrow organized government by force or violence. For this reason, we conclude that the evidence is legally insufficient to sustain his conviction of criminal anarchy. Although Rosales argues that NRS 203.115 violates the First Amendment and is unconstitutionally vague, we do not reach these arguments, because we conclude that the statute, properly construed, does not permit his conviction of criminal anarchy on the evidence presented.

Note that the court affirmed Rosales’s conviction for threatening Gammick, under a separate “aggravated stalking” statute. And Rosales’s speech does seem to consist of constitutionally unprotected “true threats.”