What is Not Stalking (But May Be Insulting and Bothersome)?

In Contra Costa County in February 2020, Lafayette City Councilmember and former Lafayette Mayor Camerson Lee Burks and his wife, Julia Ackley, hosted an open house event in their home in support of a school board measure.

The invitation stated that Burks was “hosting this event as an individual resident of Lafayette and a father of school-aged children.”

Bruce Peterson attended the event and briefly spoke with Ms. Ackley, during which time he told her “happy belated birthday” as her birthday was 22 days  earlier.  Ms. Ackley later reported that the conversation was “odd.”  She later stated that she was unaware that her birthday was publicly available on Facebook and felt “unnerved” and “uncomfortable” and “a little freaked out.”  Ms. Ackley said she was uncomfortable with Mr. Peterson because he attended the get-together wearing a white t-shirt with children’s handprints all over it and a pink fanny-pack.

The next month, Mr. Peterson reposted on his Facebook page a photo from Ackley’s public Facebook page.  The photo featured Ackley, Burks and Ackley’s two daughters.  Peterson wrote under the post, “A politician’s family.  I have never met the younger 2 girls.”  In the comments, he wrote “Considering the politician, Cameron Burks, has a different name than his wife, I wonder what their daughters’ last name is?”

One of Burks’ friends sent Burks a screenshot of Peterson’s post.  Burks was “alarmed” and “immediately felt” Peterson “could be a threat” to his wife and daughters.  Ackley, however, noted the photo reposted by Peterson was publicly available on her Facebook page, as was her birthdate and other pictures of Burks and her daughters.

In April 2020, Ackley received a “confusing” letter and check in the mail from Peterson.  Written on the front of the check was “Pay to the order of anyone who is not corrupt.”  The rambling letter railed against local politicians and Lafayette Little League’s “nasty, totalitarian jerks.” 

Ackley and Burks then showed the letter to the local police who arrested Peterson for criminal threats, Penal Code § 422, and stalking, Penal Code § 646.9.

The Contra Costa District Attorney’s Office then prosecuted and a jury convicted Peterson of stalking.  The judge sentenced Peterson to two years of probation with one year of home confinement.

Peterson then appealed the conviction to the First Appellate District, which agreed with Peterson that an odd conversation at a political fundraiser, a reposting of a photo on Facebook and a rambling letter with a check made out to “anyone who is not corrupt” were not a true threat of violence.

The First Appellate District court explained that Penal Code § 646.9(a) provides, “[a]ny person who . . . willfully and maliciously harasses another person and who makes a credible threat with the intent to place that person in reasonable fear for his or her safety, or the safety of his or her immediately family is guilty of the crime of stalking.”

Thus, the prosecution had to prove (1) Peterson harassed Burks and Ackley; (2) made a credible threat; and (3) did so with the intent to place them in reasonable fear for their safety or the safety of their immediate family.  See People v. Ewing (1999) 76 Cal. App. 4th 199, 210; see also People v. Carron (1995) 37 Cal. App. 4th 1230, 1238.

The appellate court then explained that harassing means when someone “engages in a knowing and willful course of conduct directed at a specific person that seriously alarms, annoys, torments, or terrorizes the person, and that serves no legitimate purpose.”  Penal Code § 646.9(e). 

A “course of conduct” means “two or more acts occurring over a period of time, however short, evidencing a continuity of purpose.” Id., subd. (f).

A ”credible threat” is defined as  a “verbal or written threat, including that performed through the use of an electronic communication device, or a threat implied by a pattern of conduct or a combination of verbal, written, or electronically communicated statements and conduct, made with the intent to place the person who is the target of the threat in reasonable fear for his or her safety or the safety of his or her family, and made with the apparent ability to carry out the threat so as to cause the person who is the target to the threat to reasonably fear for his or her safety or the safety of his or her family.  It is not necessary to prove that the defendant had the intent to actually carry out the threat.” Id., subd. (g).  “True threats” of violence are unprotected by the First Amendment.  Counterman v. Colorado (2023) ___ U.S. ____, 143 S. Ct. 2106, 2111.

Turning to Peterson’s conduct, the appellate court found that while Peterson’s remarks were “discomfiting,” but they were not part of a “subtext” of threatening Burks or his wife.  Instead, they were constitutionally protected speech, although odd.

The conviction was therefore reversed.

We present this summary because in today’s world, we get a lot of phone calls at our office concerning similar situations where a person, like Peterson, may do some odd things that unnerve another person.  Facebook and other social media platforms have a lot of information available and there are those who will spend the time combing through information to find nuggets of personal information.  The person, like Peterson, may post some odd statements or even send an email that, like Peterson’s letter with the check, is “rambling” and “confusing.”

When this happens, we suggest the unnerved person instead apply for a civil restraining order first and foremost if the behavior truly disturbs that person’s peace and is so annoying that it causes the person to worry for their safety.