162 N.E.3d 200 (Ill. 2020)
Marshall Ashley was charged in October 2014 with two counts of felony stalking of Keshia Tinch in the circuit court of McLean County.1
Ashley and Tinch had dated for about two years, shared a child, and resided together in Normal, Illinois.2 On October 21, 2014, Tinch received a phone call from Ashley while at her apartment with her mother Karen Miller and other relatives, during which Ashley threatened to come over and kill Tinch and everyone with a gun.3 Tinch and her family then proceeded to Miller's house, where Tinch received numerous additional calls and text messages from Ashley.4
The text messages sent by Ashley included statements threatening to make Tinch suffer and warning that her words would get her hurt or killed.5 Ashley also inquired about lights at the house after driving past and expressed hope that she had a gun when he did.6 He accompanied some messages with a photograph of a handgun.7 Police officers responded to the scene, photographed the messages on Tinch's phone, and later arrested Ashley after stopping his vehicle.8
Tinch testified that the messages scared and terrified her, and she recounted two prior uncharged incidents where Ashley had held her at gunpoint.9 Ashley testified in his defense that the couple had been arguing frequently and denied making any threats against Tinch.10 Following a bench trial, the circuit court convicted Ashley of stalking on the basis that his course of conduct would cause a reasonable person to suffer emotional distress.11 The court sentenced him to one year and six months in prison.12
Ashley appealed his conviction to the appellate court, which affirmed the judgment.13 The Supreme Court of Illinois granted Ashley's petition for leave to appeal to review the constitutional challenges to the stalking statute.14
Whether the provisions of the stalking statute under which the defendant was convicted are facially unconstitutional under the First Amendment?15
No. The stalking statute's 'threatens' provision in subsection (c)(1) is construed to refer only to true threats of unlawful violence such as bodily harm, sexual assault, confinement, or restraint, which fall outside First Amendment protection.18 Applying this construction to the established facts, Ashley's text messages to Tinch stating he could make her suffer, that her words would get her hurt or killed, that he hoped she had a gun when he did, and the accompanying photograph of a handgun, together with the phone call threatening to kill Tinch and everyone with a banger, constitute knowing true threats.19 Those threats caused Tinch to suffer emotional distress as she testified the messages scared and terrified her and prompted her and her family to flee to Miller's house while calling police.20
The provisions of the stalking statute under which Ashley was convicted are not facially unconstitutional under the First Amendment.
Whether the provisions of the stalking statute under which the defendant was convicted violate substantive due process under the Fourteenth Amendment?21
A criminal statute violates substantive due process if it criminalizes innocent conduct unrelated to the statute's purpose or is so vague that it fails to give fair warning or invites arbitrary enforcement.22 A statute limited to knowing true threats of unlawful violence satisfies due process because it targets conduct that precedes violent attacks.23
No. After limiting the 'threatens' provision to intentional or knowing true threats of unlawful violence, the statute does not reach innocent conduct and provides fair warning while supplying clear enforcement standards.24 Applying this to the established facts, Ashley's course of conduct consisting of the threatening phone call heard by Miller and the series of text messages that Tinch found terrifying directly implements the legislative goal of preventing conduct that historically precedes homicide.25 Ashley's conviction rested solely on this knowing threatening conduct rather than any hypothetical non-threatening activity.26
The provisions of the stalking statute under which Ashley was convicted do not violate substantive due process under the Fourteenth Amendment.27
Whether the term "threatens" in the stalking statute requires a showing of the speaker's subjective intent to threaten or an objective standard?28
Yes. The term requires subjective awareness satisfied by a knowing mental state.31 Section 12-7.3(a) expressly includes the knowing mental state, which meets the constitutional minimum for true threats as recognized in Elonis.32 Applying this to the established facts, Ashley knowingly engaged in the course of conduct by sending the specific threatening texts and making the phone call while aware of their content.33
This is confirmed by the consistency between messages on his phone and Tinch's phone and by the trial court's finding that he acted with knowledge and intent to cause emotional distress.34
The term 'threatens' requires subjective awareness via a knowing mental state rather than a purely objective standard.35
Whether the stalking statute's "should know" negligence standard is constitutionally sufficient for a true threat?36
A negligence standard that permits conviction when the speaker should know a reasonable person would view the speech as threatening does not satisfy the subjective awareness requirement for true threats and is therefore unconstitutionally overbroad.37
No. The 'should know' portion of subsection (a) fails to ensure the speaker is consciously aware of the threatening nature of the speech and therefore cannot constitutionally support a true-threat prosecution.38 Applying this to the established facts, Ashley's conviction is sustained only because the trial court found he acted knowingly when sending the messages that terrified Tinch and prompted flight to Miller's house.39 The conviction does not rest on any application of the invalid negligence standard.40
The stalking statute's 'should know' negligence standard is not constitutionally sufficient for a true threat.41