Respondents Brief — Jamal Knox, Petitioner v. Pennsylvania

No. 18-949

___________

IN THE

SUPREME COURT OF THE UNITED STATES

___________

JAMAL KNOX,

Petitioner

V.

COMMONWEALTH OF PENNSYLVANIA,

Respondent

___________

On Petition for a Writ of Certiorari to the

Supreme Court of Pennsylvania

___________

RESPONDENT’S BRIEF IN OPPOSITION

TO PETITION FOR WRIT OF CERTIORARI

___________

STEPHEN A. ZAPPALA, JR.

District Attorney

MICHAEL W. STREILY

Deputy District Attorney

FRANCESCO L. NEPA*

Assistant District Attorney

*Counsel of Record

Office of the District Attorney

401 Allegheny County Courthouse

Pittsburgh, Pennsylvania 15219-2489

(412) 350-4377

QUESTION PRESENTED

The petitioner, asserting that the court below

found it irrelevant whether a reasonable person

would find his song objectively threatening, asks

whether the government, in order to establish that a

statement is a true threat unprotected by the First

Amendment, must show that a reasonable person

would regard that statement as an actual threat, “or

whether it is enough to show only the speaker’s

subjective intent to threaten.”

But it is clear that the court did not find the

objectively threatening nature of the song to be

irrelevant—the matter was never even in dispute;

thus, does the petitioner’s mischaracterization of the

court’s decision itself preclude review? And even if

not, should review be denied because the case does not

allow this Court the opportunity to decide the precise

level of intent necessary to sustain a threat conviction

that does not run afoul of the First Amendment?

i

TABLE OF CONTENTS

QUESTION PRESENTED

i

OPINIONS BELOW

1

JURISDICTION

2

STATEMENT OF THE CASE

2

REASONS FOR DENYING THE WRIT

13

I.

THE SUPREME COURT OF

PENNSYLVANIA DID NOT, AS

THE PETITIONER CLAIMS,

ADOPT

“A

PURELY

SUBJECTIVE TRUE-THREAT

STANDARD”;

THUS,

HIS

PETITION RELIES UPON A

FALSE

PREMISE.

REGARDLESS, THE INSTANT

SITUATION

DOES

NOT

WARRANT REVIEW BECAUSE

IT DOES NOT PROVIDE THIS

HONORABLE COURT WITH

THE

OPPORTUNITY

TO

DECIDE THE PRECISE LEVEL

OF INTENT NECESSARY TO

SUSTAIN

A

THREAT

CONVICTION THAT IS NOT

VIOLATIVE OF THE FIRST

AMENDMENT. ........................ 13

CONCLUSION

25

ii

TABLE OF CITATIONS

Cases

Commonwealth v. Pennsylvania, 130 A.3d 698

(Pa. 2015)………………………………………………….7

Elonis v. United States, 135 S.Ct. 2001 (2015)…18-19

Perez v. Florida, 137 S.Ct. 853 (2017)………18, 20-21

Virginia v. Black, 538 U.S. 343 (2003)…………..20-21

Watts v. United States, 394 U.S. 705 (1969)………..20

Statutes

18 Pa. C.S.A. §2706(a)…………………………………22

18 Pa. C.S.A. §4952(a)……………………………..22-23

Rules

U.S.Sup.Ct. Rule 10, 28 U.S.C.A…………………….17

iii

OPINIONS BELOW

The Orders and Opinions of the Court of

Common Pleas of Allegheny County, Pennsylvania;

the Superior Court of Pennsylvania; and the Supreme

Court of Pennsylvania have been included as

Appendices to the Petition for a Writ of Certiorari

filed by the petitioner, Jamal Knox.

1

JURISDICTION

The petitioner has invoked jurisdiction under

28 U.S.C. §1257(a).

STATEMENT OF THE CASE

A. Factual History

On April 17, 2012, City of Pittsburgh police

officer Michael Kosko and his partner were patrolling

a residential neighborhood when they observed a Jeep

Cherokee that failed to employ its turn signal as it

tried to maneuver into a parking space (NJT, 20-23,

26, 50-51, 62).1 The officers pulled up alongside the

Cherokee, and Jamal Knox—the driver of the vehicle

and the petitioner in this matter—admitted to Officer

Kosko that he did not have a valid driver’s license

1

Numbers in parentheses preceded by the letter

“NJT” refer to the pages of the petitioner’s nonjury-trial transcript, which took place November

12 through November 21, 2013.

2

(NJT, 23-24, 53). Upon receiving that response,

Officer Kosko started to exit the police vehicle, but as

he did so, Knox sped away in the Cherokee (NJT, 24,

53). A brief vehicle pursuit ensued during which Knox

struck a parked car and, ultimately, a chain-link

fence that left the Cherokee disabled (NJT, 24-27, 54,

59). Knox attempted to run but was quickly taken into

custody by Officer Kosko (NJT, 27-29, 43-44). A

search incident to arrest revealed 15 stamp bags of

heroin and $1489 in currency on Knox’s person (NJT,

28-29, 39, 56). In addition, a loaded firearm, which

had been stolen from a residence three months

earlier, was recovered from the driver’s side of the

vehicle (NJT, 30-33, 39, 46, 55-56, 71, 74-75). Officer

Kosko tried to ascertain Knox’s name, but Knox told

him that it was “Dante Jones” (NJT, 29).

As the vehicle pursuit had been going on,

Detective Daniel Zeltner had been dispatched to the

3

scene, and upon his arrival, he observed Knox already

seated in the back of the patrol car (NJT, 65-66).

Detective Zeltner was advised that the person in the

back seat of the car had said that his name was Dante

Jones, but Zeltner, familiar with this individual from

numerous past dealings, clearly recognized him as

Jamal Knox (NJT, 66, 68). As a result of Knox’s

conduct that day, he was charged with various drug

offenses, as well as carrying a firearm without a

license, receiving stolen property, providing false

identification,

and

several

motor

vehicle

code

violations (NJT, 8-10).

Seven months later, on November 15, 2012—a

date on which the charges against Knox were still

pending—Pittsburgh police officer Aaron Spangler

was monitoring the Facebook page of an individual

who used the name “Beaz Mooga”; on the page, there

was a direct link to a YouTube video/rap song entitled

4

“Fuck the Police,” which subsequent investigation

determined had been uploaded onto YouTube a few

days earlier (NJT, 178-79, 187-88, 216, 222, 227-28,

231, 257, 302).2 “Fuck the Police,” as well as another

song included in a separate video that also had a link

on that particular Facebook page, were voiced by

Knox and Rashee Beasley—Knox’s co-defendant at

the instant trial—and the video content included a

series of still photographs containing the images of

both men (NJT, 186-87, 190-91, 225-27). In listening

to the songs, Officer Spangler was able to glean that

Knox used the rap name “Mayhem Mal” and Beasley

went by the name “Soldier Beaz” (NJT, 206-07). In

listening to “Fuck the Police” in particular, Officer

2

The Facebook page that Officer Spangler had

been viewing was accessible to the public (NJT,

180).

5

Spangler could hear the names of Detective Zeltner

and Officer Kosko, colleagues of his whom Spangler

knew had pending cases against both Knox and

Beasley (NJT, 144-45, 192, 196).3

The

lyrics

to

“Fuck

the

Police,”

which

referenced Zeltner and Kosko right from the very first

verse, included such lines as, “Your shift over at three

and I’m gonna fuck you up where you sleep,” “I know

exactly who workin’, and I’m gonna kill him with a

Glock/Quote that,” “We makin’ prank calls, as soon as

you bitches come we bustin’ heavy metal,” “Like

3

Beasley had been Knox’s front-seat passenger on

April 17, 2012, and, after fleeing the scene on

foot, he, too, was taken into custody and charged

with various offenses (NJT, 24, 29, 62-63, 399).

In addition to that incident, Beasley, on

September 26, 2011, had driven away from a

vehicle stop initiated by Detective Zeltner; based

on that particular conduct, Beasley had been

charged with fleeing and eluding (NJT, 143-44).

6

Poplawski I’m strapped nasty,”4 and “Let’s kill these

cops cuz they don’t do us no good” (NJT, 146-47, 196206; see also Appendix A to Knox’s Petition for Writ of

Certiorari, at 3a-5a). The lyrics also referenced the

killing of police informants (“[T]hem informants that

you got, gonna be layin’ in the box”), and the sound of

machine guns being fired could be heard at certain

points during the song (See id., at 3a, 5a).5

Immediately after having viewed the video,

Officer Spangler informed Detective Zeltner and

Officer Kosko, as well as his superior officers, of the

video’s existence, and both Zeltner and Kosko

4

On June 28, 2011, Richard Poplawski was

convicted of three counts of first-degree murder

and sentenced to death for the April 4, 2009

shooting deaths of three Pittsburgh police

officers. See Commonwealth v. Poplawski, 130

A.3d 697 (Pa. 2015).

5

A different video was posted subsequently in

which Knox and Beasley acknowledged that they

were indeed the authors and performers of the

song (NJT, 208-10).

7

watched it on that date (NJT, 106-07, 145, 154, 170,

193, 230). As a result of the threats contained within

the lyrics, Officer Kosko decided to leave the

Pittsburgh Police and relocate (NJT, 108-09). Like

Kosko, Detective Zeltner was also concerned for his

own safety, as well as that of his family (NJT, 147).

He was given time off from the job and, upon his

return, was provided with an extra security detail;

extra personnel had also been deployed throughout

the department in order to deal with the threats made

in the video (NJT, 147).

Detective April Campbell of the Pittsburgh

Police, an expert in computer investigations, was able

to determine that in the few days that the “Fuck the

Police” video was online before being taken down,

more than one thousand different users had viewed it

(NJT, 244, 252-53, 312-13). Detective Campbell was

also able to conclude that the “Beaz Mooga” Facebook

8

account on which the link to the video had been posted

belonged to Rashee Beasley (NJT, 317-21).

B. Procedural History

As a result of the above-mentioned video/rap

song, the Commonwealth of Pennsylvania filed a

Criminal Information against Knox at No. CC

201303870, charging him with two counts of

terroristic threats, in violation of 18 Pa. C.S.A.

§2706(a)(1); two counts of intimidation of witnesses or

victims, in violation of 18 Pa. C.S.A. §4952; two counts

of retaliation against witnesses or victims, in

violation of 18 Pa. C.S.A. §4953(a); and one count of

criminal conspiracy, in violation of 18 Pa. C.S.A.

§903(a)(1) (see Appendix C to Petition for Writ of

Certiorari, at 71a).

At a bench trial that concluded on November

21, 2013, the trial court found Knox guilty of both

9

counts of terroristic threats and both counts of

intimidation of witnesses, as well as the lone

conspiracy count, and in so doing, rejected his

argument that the song was protected speech under

the First Amendment; the court found instead that

Knox had communicated a true threat with the

specific intent to terrorize Detective Zeltner and

Officer Kosko and had also intimidated or attempted

to intimidate those officers with the intent that such

conduct would impede or impair the administration of

justice (NJT, 462-64; see also Appendix C to Petition

for Writ of Certiorari, at 72a, 86a-87a). Knox

subsequently received concurrent sentences of 12 to

36 months’ imprisonment, plus two years’ probation,

at each of the terroristic threats and intimidation of

witnesses counts (see id., at 72a).

On August 2, 2016, the Superior Court of

Pennsylvania affirmed Knox’s judgment of sentence,

10

although it did so without deciding whether the song

constituted protected speech; rather, the court ruled

that Knox’s claim that the video was improperly

admitted into evidence because it was protected

speech was waived because no objection to its

admission had been made at trial (see Appendix B to

Petition for Writ of Certiorari, at 68a-69a).

On January 23, 2017, the Supreme Court of

Pennsylvania granted Knox’s petition for allowance of

appeal in order to address the issue of “whether the

First Amendment of the United States Constitution

permits the imposition of criminal liability based on

the publication of a rap-music video containing

threatening lyrics directed to named law enforcement

officers” (see Appendix A to Petition for Writ of

Certiorari, at 1a-2a). All seven of the Justices agreed

that the Constitution allows states to criminalize

threatening speech that is specifically intended to

11

terrorize or intimidate and that the trial court’s

finding as to Knox’s specific intent in the instant

matter was supported by competent evidence; thus,

Knox’s convictions and judgment of sentence were

affirmed (see id., at 21a-22a, 28a-30a).6

On January 18, 2019, Knox, through Lisa S.

Blatt, Esquire, filed with this Honorable Court the

instant Petition for a Writ of Certiorari, which was

docketed at No. 18-949. On February 4, 2019, this

Court requested the Commonwealth of Pennsylvania,

through the Allegheny County Office of the District

Attorney, to file a response to Knox’s petition.

6

Two Justices, in a concurring and dissenting

opinion, differed from the majority only in their

belief that the court should have decided

“whether the First Amendment requires proof of

a specific intent, or whether the Amendment

would tolerate punishment of speech based upon

proof of only a lesser mens rea such as

recklessness or knowledge” (see Appendix A to

Petition for Writ of Certiorari, at 30a-31a)

(emphasis in original).

12

REASONS FOR DENYING THE WRIT

I.

THE

SUPREME

COURT

OF

PENNSYLVANIA DID NOT, AS THE

PETITIONER CLAIMS, ADOPT “A

PURELY

SUBJECTIVE

TRUETHREAT STANDARD”; THUS, HIS

PETITION RELIES UPON A FALSE

PREMISE.

REGARDLESS,

THE

INSTANT SITUATION DOES NOT

WARRANT REVIEW BECAUSE IT

DOES

NOT

PROVIDE

THIS

HONORABLE COURT WITH THE

OPPORTUNITY TO DECIDE THE

PRECISE

LEVEL

OF

INTENT

NECESSARY TO SUSTAIN A THREAT

CONVICTION

THAT

IS

NOT

VIOLATIVE

OF

THE

FIRST

AMENDMENT.

Jamal Knox contends that his petition for writ

of certiorari should be granted because the decision of

the Supreme Court of Pennsylvania, which he asserts

set forth “[a] purely subjective true-threat standard

allowing convictions based solely on the speaker’s

subjective intent…without regard to whether the

speech was objectively threatening,” is, in his words,

“wrong” and at odds with principles of the First

Amendment and precedent of this Honorable Court

13

(see Petition for Writ of Certiorari, at p. 14). But the

Commonwealth of Pennsylvania would respectfully

submit that Knox’s argument rests on a false premise,

as the court below did not do what Knox says that it

did.

As a framework for his argument, Knox tries to

set up a conflict between the five-member majority of

the Pennsylvania Supreme Court and the two

concurring and dissenting Justices, but the conflict

that he relies upon simply does not exist. Knox

maintains that while the minority opinion would have

opted for a two-pronged test—one in which his rap

song would first be evaluated to determine whether

an objective, reasonable person would have found it to

be a threat and then as to whether the speaker,

subjectively, had a specific intent to threaten the

victims—the majority “found it irrelevant whether a

reasonable person would find the song threatening in

14

context” (see id., at pp. 1; see also pp. 7-8). He added

that while the two concurring and dissenting Justices

concluded that the song was both objectively and

subjectively threatening, the majority did not do so

and “would not have found the song objectively

threatening” (see id., at p. 23). Unfortunately for

Knox, his characterization of the majority opinion—

and

the

disagreement

with

it

by

the

concurrence/dissent—is not accurate.

Nowhere in the majority opinion does the court

state that it was irrelevant to its analysis whether an

objective, reasonable person would find threatening

the lyrics of Knox’s “Fuck the Police,” wherein Knox

stated that he was going to murder two named officers

who had pending cases against him while also

mentioning that he knew where those officers lived

and what time their shifts ended. Nor did the court

state, or even hint, that it had not found the song

15

objectively threatening. The Commonwealth submits

that the objective nature of the threat contained in

the song was never at issue, as Knox at no time in

these proceedings even attempted to argue that his

song did not constitute an objective threat.7 And,

lastly, Justice Wecht, after stating in his concurring

and dissenting opinion that requiring the government

to prove the speaker’s specific intent serves to prevent

the prosecution of protected speech, wrote that, “like

the Majority, I also would hold that consideration of a

speaker’s mindset is only part of the analysis,” the

other part being the objective nature of the speech

7

The fact that the objectively threatening nature

of the song was not in dispute is further

evidenced by the manner in which the majority

framed the issue that it was deciding; namely,

whether the First Amendment allowed for the

imposing of criminal liability on a rap video that

“contain[ed] threatening lyrics directed to

named law enforcement officers” (see Appendix A

to Petition for Writ of Certiorari, at 1a-2a).

16

itself (see Appendix A to Petition for Writ of

Certiorari, at 37a) (emphasis supplied).8 Thus,

because the argument offered by Knox fails on its

face, he certainly cannot be said to have offered a

compelling reason for the granting of his petition. See

U.S.Sup.Ct. Rule 10, 28 U.S.C.A. (“Review on a writ

of certiorari is not a matter of right, but of judicial

discretion. A petition for a writ of certiorari will be

granted only for compelling reasons.”). For this reason

alone, Knox’s petition should be denied.

Knox further asserts that “[f]or all the reasons

8

The actual nature of the disagreement between

the majority and the concurrence/dissent is that

while the majority, given the facts of the instant

case, left open the question of whether a statute

that criminalizes threatening statements spoken

with a lower scienter threshold than specific

intent might survive First Amendment scrutiny

(see Appendix A to Petition for Writ of Certiorari,

at 21a), Justice Wecht would insist on a finding

of the speaker’s specific intent in order for the

speech

to

constitute

criminal

conduct

unprotected by the First Amendment (see id., at

38a).

17

this Court granted certiorari in Elonis [v. United

States, 135 S.Ct. 2001 (2015)], it should do so here”

(see Petition for Writ of Certiorari, at p. 8), and he

adds that the matter requires this Court’s resolution

just “as Justice Sotomayor explained last Term [in her

concurrence in Perez v. Florida, 137 S.Ct. 853 (2017)]”

(see Petition for Writ of Certiorari, at p. 9). But the

issue advanced by Knox, as has been set forth above,

is not the same one that was referenced in those two

cases, and, regardless, the circumstances of the

instant situation do not warrant consideration of the

issue framed but not addressed in Elonis and urged to

be reviewed by Justice Sotomayor in Perez.

In Elonis, the defendant, who had posted

graphically violent rap lyrics on his Facebook page

directed

toward,

among

others,

his wife,

his

coworkers and law-enforcement officials, was found

guilty of violating a federal statute that made it a

18

crime to transmit “any communication containing any

threat…to injure the person of another.” See 135 S.Ct.

at 2004-07. At trial, the defendant had requested an

instruction that the government must prove that he

intended to communicate a true threat; that request

was denied, and the prosecution was able to argue to

the jury that it was irrelevant whether the defendant

had intended the postings to be threats. Id. at 2007.

On appeal, the defendant renewed his contention that

the jury should have been required to find that he

intended his posts to be threats, but the Third Circuit

Court of Appeals disagreed, finding that the only

intent required by the statute was the intent to

communicate words that the defendant understands

and that a reasonable person would view as a threat.

Id. This Honorable Court granted certiorari on the

question of whether the statute required that the

defendant be aware of the threatening nature of the

19

communication and, if not, whether the First

Amendment required such a showing. Id. at 2004,

2008. Given the disposition of the matter, however—

this Court ruled that the defendant’s conviction could

not stand because the federal statute required proof

of a mens rea greater than negligence—the Court

found no reason to reach any issues pertaining to the

First Amendment. Id. at 2012-13.

Subsequently, in Perez, a case in which a

defendant’s petition for writ of certiorari was denied,

Justice Sotomayor noted in her concurrence that this

Court’s prior decisions in Watts v. United States, 394

U.S. 705 (1969), and Virginia v. Black, 538 U.S. 343

(2003)

make clear that to sustain

a threat conviction without

encroaching upon the First

Amendment, States must

prove more than the mere

utterance of threatening

words—some level of intent

is required. And these two

20

cases strongly suggest that

it is not enough that a

reasonable person might

have understood the words

as a threat—a jury must

find that the speaker

actually intended to convey

a threat.

137 S.Ct. at 855 (emphasis in original). Justice

Sotomayor went on to state that “[i]n an appropriate

case…[t]he Court should…decide precisely what level

of intent suffices under the First Amendment—a

question we avoided two Terms ago in Elonis.” Id.

As is clear from the above, Justice Sotomayor

believes that this Court’s precedents establish that, in

order to sustain a conviction against someone in

Knox’s position that does not run afoul of the First

Amendment, the prosecution must have proven that

he had some level of intent to convey a threat. The

Pennsylvania Supreme Court agreed, stating that the

decision in Black does indeed “necessitate[ ] an

inquiry into the speaker’s mental state [when a First

21

Amendment analysis is being undertaken]” (see

Appendix A to Petition for Writ of Certiorari, at 19a20a). But in this case, the terroristic threats statute

under which Knox was convicted made it a crime if

anyone “communicates, either directly or indirectly, a

threat to…commit any crime of violence with intent to

terrorize” 18 Pa. C.S.A. §2706(a) (emphasis supplied).

Thus, the speaker’s subjective intent is an element

built right into the statute, and Knox could not have

been found guilty at his non-jury trial had not the

trial court concluded that he had acted intentionally.

And with regard to Knox’s conviction for intimidation

of witnesses—for which a person is guilty of the

offense “if, with the intent to or with the knowledge

that his conduct will obstruct, impede, impair,

prevent or interfere with the administration of

criminal justice, he intimidates or attempts to

intimidate any witness or victim…,” see 18 Pa. C.S.A.

22

§4952(a)

(emphasis

supplied)—the

trial

court

expressly found that Knox had specifically intended

to intimidate the two officers so as to obstruct justice,

a fact acknowledged by the Pennsylvania Supreme

Court in its decision (see NJT, 463 and Appendix C of

Petition for Writ of Certiorari, at 86a-87a; see also

Appendix A of Petition for Writ of Certiorari, at 8a).

Thus, because the prosecution was deemed to

have proven that the lyrics to Knox’s song were

uttered by him with the highest level of mens rea

possible—namely, a specific intent to terrorize and

intimidate—the court below, after noting that the

Constitution allows states to criminalize such speech,

found it unnecessary to decide whether the First

Amendment

might

also

offer

protection

to

“threatening statements spoken with a lower scienter

threshold, such as knowledge or reckless disregard of

their threatening nature,” as that was not the

23

situation before the court (see Appendix A of Petition

for Writ of Certiorari, at 21a-22a). For that same

reason, there is no basis for this Court to grant Knox’s

petition, as the instant matter does not present the

occasion to decide the precise level of intent that

suffices under the First Amendment. Because the

instant case does not involve a statement spoken with

something less than specific intent, any such

pronouncement on the subject by this Court would be

nothing more than dicta. In other words, this is not

“[the] appropriate case” spoken of by Justice

Sotomayor in Perez, and, therefore, Knox’s petition

should be denied for this additional reason.

24

CONCLUSION

For the foregoing reasons, the Commonwealth

of Pennsylvania respectfully requests this Court deny

the Petition for a Writ of Certiorari to the Supreme

Court of Pennsylvania.

Respectfully submitted,

STEPHEN A. ZAPPALA, JR.

District Attorney

MICHAEL W. STREILY,

Deputy District Attorney

__/s/_______________________

FRANCESCO L. NEPA

Assistant District Attorney

Allegheny County Office of the

District Attorney

Pittsburgh, PA 15219-2489

(412) 350-4377

FNepa@da.allegheny.pa.us

February 28, 2019

25