Alaska attorneys expect little impact from U.S. Supreme Court ruling on stalking

In a decision last month, the U.S. Supreme Court overturned the stalking conviction of a Colorado man, saying that local courts had incorrectly considered the First Amendment.

Following the decision, some national commentators warned that the court had “declared stalking to be protected by the First Amendment,” because prosecutors will now be required to prove that a stalker intended to harm someone while sending repeated unwanted messages.

But here in Alaska, prosecutors and defense attorneys say the Supreme Court’s decision is unlikely to change matters because state law and municipal regulations already require the standard demanded by the new ruling.

“I know people online have been panicking about it,” said defense attorney David Case of 49th State Law, “but I think the hullabaloo was misguided because Alaska statute is in compliance with the Constitution.”

In the case that went to the U.S. Supreme Court, a man named Billy Counterman was convicted of stalking after sending thousands of unwanted messages to a local musician, driving her out of the state and out of public life.

By a vote of 7-2, the justices said Colorado courts were mistaken when they focused on whether a reasonable person would consider Counterman’s actions as violent threats. Instead, the justices said, the state courts need to consider Counterman’s state of mind, whether he was acting recklessly by issuing “true threats” that are not protected by the First Amendment.

Worries about the decision are particularly impactful here, because Alaska has the highest rates of male-on-female violence in the country, with more than half of the state’s female residents reporting some kind of sexual or partner violence.

But for more than 30 years, Alaska law has defined stalking as taking place if someone “recklessly places another person in fear of death or physical injury,” the exact language mandated by the Supreme Court.

John Skidmore, deputy attorney general overseeing the criminal division for the Alaska Department of Law, said by email that the court’s decision “stands for the proposition that a defendant who makes threatening statements must have appropriate level of awareness of the threatening nature before the conduct can be criminalized. … Alaska law has always required such a mental state as to the risk.”

Case, the defense attorney, said it’s unusual for him and Skidmore to see eye to eye on issues, but they do in this case.

That’s state law, but what about municipal code?

In Alaska, state prosecutors rarely deal with misdemeanor-level offenses, and most stalking offenses are misdemeanors, meaning that municipal officials are the ones who deal with stalking most often.

In both Anchorage and Juneau, cities where local prosecutors deal with stalking cases, local ordinances are almost identical to state law, defining stalking in part as “knowingly engag(ing) in a course of conduct that recklessly places another person in fear of death or physical injury.”

Robert Palmer, the lead attorney for the City and Borough of Juneau, said the changes wrought by the Supreme Court are not “crystal clear,” but he linked the ruling to the ordinance language related to what a person intended, known as subjective intent.

He concluded, “I don’t think the Supreme Court case will have any significant consequences in Alaska just because we already have a subjective intent in there.”