No, West Virginia’s highest court said last week, in State v. Yocum (W. Va. May 12, 2014) (just posted to Westlaw today). The court was interpreting the statutory definition of terrorism, which, in relevant part, defines a “terrorist act” as an act (emphasis added),
(A) Likely to result in serious bodily injury or damage to property or the environment; and
(B) Intended to:
(i) Intimidate or coerce the civilian population;
(ii) Influence the policy of a branch or level of government by intimidation or coercion;
(iii) Affect the conduct of a branch or level of government by intimidation or coercion; or
(iv) Retaliate against a branch or level of government for a policy or conduct of the government.
And the court concluded that,
[T]he terms “level” and “branch” suggest that the Legislature was contemplating threats of terrorist activity aimed not at individuals such as Sergeant A. in this case, but instead at the institutional level. It is noteworthy that not one of the four delineations of the intent necessary to come within the definition of a “terrorist act” is framed in terms of causing harm to an individual. The first definition of the requisite intent necessary to commit a statutorily-defined “terrorist act” involves conduct aimed at the civilian population as a whole and the remaining three all require conduct that is directed at a branch or level of government as a whole.
In this case, the threat that was prosecuted by the State was clearly not aimed at a branch or level of government but solely at an individual police officer. Consequently, we have little difficulty in concluding that a threat to sexually assault the child of an individual police officer by a person who is under arrest, handcuffed, and in the patrol car, does not constitute a terrorist act within the meaning of West Virginia Code § 61-6-24(a)(3)(B)(iii) because the threatened action was not directed at intimidating or coercing the conduct of a branch or level of government. To hold otherwise would not only require us to turn a blind eye to the overarching objective of our state’s anti-terrorism law but would run the risk of trivializing the offense at issue.
Rather than sanctioning overzealous prosecution, we take this opportunity to encourage both law enforcement and the prosecutors of this state to charge individuals with offenses that properly encompass the alleged wrongdoing at issue. In this case, the State could have charged Mr. Yocum with a violation of West Virginia Code § 61-5-27 (2010), which criminalizes the actions of individuals who seek to intimidate or retaliate against public officers and employees by threats of physical force or harassment in an attempt to impede or obstruct that individual from performing his or her official duties. Instead, the State sought to overreach and punish Mr. Yocum for the type of impulsive empty “threat” that any seasoned police officer such as Sergeant A. regularly encounters in the course of his duties — a threat that falls well outside the definitional parameters of terrorist activity.
Justice Benjamin dissented (some paragraph breks added):
It was to this officer, acting in his official capacity, that petitioner made despicable threats meant to intimidate or coerce him. The majority finds that an individual police officer does not constitute a level of government under the statute. I disagree. This was not a citizen’s arrest, nor was Sergeant A. at any time acting in anything other than an official capacity. Indeed, it is undisputed that the arrest of the petitioner by Sergeant A. was a valid exercise of the police power of the state through its executive function.
To whom or what would the majority believe a valid terroristic threat in such a setting should instead be made? The governor? The police department? The executive branch can only function by and through its employees acting in their official capacities. It is simply absurd therefore to contend that Sergeant A. was anything but a personification of the executive level of government at all times during his interaction with petitioner. …
Finally, while I recognize that reasonable persons can disagree on the construction of W. Va. Code § 61-6-24, I find that the majority opinion’s hostility toward Sergeant A. for reporting the petitioner’s threat is nothing short of bizarre. The facts show that Sergeant A. did his duty. He arrested the petitioner for domestic violence and reported the petitioner’s threat to the prosecutor. Nevertheless, the majority refers to Sergeant A. as “overly-zealous” and intimates that a seasoned officer like Sergeant A. should not be so thin skinned in giving credence to “empty” threats.
Why should Sergeant A. consider the threat empty when he was arresting the petitioner for domestic violence? Obviously, Sergeant A. had good reason to believe that the petitioner is a violent person. Also, considering Sergeant A.’s knowledge that the petitioner is a violent person, why should Sergeant A. presume that his family was in no danger? The majority implies that putting up with violent threats against his or her family members is part of a police officer’s daily routine, and police officers simply should shrug off such threats and go about their business. Perhaps such threats against other public actors doing their official duties should likewise be considered to be empty threats; actors such as teachers, firefighters, legislators and, perhaps, even judges.
So, at the end of the day, where are we with petitioner’s threat to viciously attack Sergeant A.’s loved ones simply because Sergeant A. did the job we ask of him? The petitioner is left to laugh. He pulled off a good one and got away with it. Sergeant A. is left to worry and perhaps hug his family a bit tighter.
And us? We’re left by the majority to believe that this is what the legislature intended. Petitioner’s threats should have consequences and I believe the legislature thought so too. I therefore dissent.
The dissent didn’t discuss the majority’s argument that the legislatively specified consequences for defendant’s actions were provided by W. Va. Code. § 61-5-27, which makes it a crime to
use intimidation, physical force, harassment or a fraudulent legal process or official proceeding, or to threaten or attempt to do so, with the intent to … [i]mpede or obstruct a public official or employee from performing his or her official duties.
cause injury or loss to person or property, or to threaten or attempt to do so, with the intent to … [r]etaliate against a public official or employee for the performance or nonperformance of an official duty.