Justice Wainer Apter continued in relevant part: The State did not assert that defendant was guilty of violating N.J.S.A. 2C:12-3 because he told the police they were “causing too much chaos over here for nothing”; because he called Officer Healey “the f—ing devil”; or because he said that Officer Healey was “always trying to break somebody’s a–.” Instead, the State repeatedly maintained that defendant was guilty of terroristic threats because he threatened to shoot Officer Healey in the head.
The same is true for defendant’s Facebook posts. Defendant was not prosecuted for writing “I hope they burn freehold down!!!” or “im joinin ISIS. Lol.” He was not prosecuted for posting that it was time to contact the Reverend Al Sharpton, the Reverend Jesse Jackson, Internal Affairs, or his lawyer. He was not prosecuted for berating the police for disrespecting his mother and trying to keep him in the system with petty fines and complaints. And he was not prosecuted for writing “YU WILL PAY, WHOEVA HAD ANY INVOLVEMENT. WASTIN TAX PAYERS MONEY! … SO SAD BUT WE WILL HAVE THA LAST LAUGH! #JUSTWAITONIT[.]” Defendant was prosecuted for threatening to shoot Officer Healey in the head, and then concretizing the threat mere hours later with the words “I KNO WHT YU DRIVE & WHERE ALL YU MOTHERFU$KERS LIVE AT[.]”
Quite simply, it is clear from the entirety of the trial that defendant was not prosecuted for “dissenting political speech.” He was prosecuted for threatening to shoot a police officer in the head.
And defendant made this statement not at a political protest, march, demonstration, or rally, but when police responded to a domestic-violence call at his home. We therefore decline to consider whether a mens rea other than recklessness would be required if the State attempted to prosecute “dissenting political speech” as a true threat of violence under N.J.S.A. 2C:12-3(a).
It is the Court’s position that it will not address constitutional questions unless it must. Here, the threat to shoot the officer in the head made addressing the First Amendment in the context of political dissent unnecessary.