The conviction of a southern California man for saying that someone should assassinate then-candidate Barack Obama, has been overturned by a three judge panel of the 9th Circuit Court.
Walter Bagdasarian of La Mesa, was found guilty two years ago by a federal judge in San Diego of violating a statute prohibiting threats to kill, kidnap or do bodily harm to a major presidential candidate.
The majority opinion said that Bagdasarian's vitriolic epithets were "particularly repugnant" because they endorsed violence. But the panel concluded that a reasonable person wouldn't have taken seriously his drunken diatribe in an online Yahoo! chat room at 1 a.m.
Among the comments he had posted was an observation that Obama "will have a 50 cal in the head soon" and that someone should "shoot the [racist slur]."
"There are many unstable individuals in this nation to whom assault weapons and other firearms are readily available, some of whom might believe that they were doing the nation a service were they to follow Bagdasarian's commandment," said the appeals panel opinion written by Judge Stephen Reinhardt(*).
"There is nevertheless insufficient evidence that either statement constituted a threat or would be construed by a reasonable person as a genuine threat by Bagdasarian against Obama."
The ruling noted that Bagdasarian did have in his possession .50-caliber weapons and ammunition but said the reference to a bullet in Obama's head was "a prediction that conveyed no explicit or implicit threat on the part of Bagdasarian that he himself would kill or injure Obama."
The majority opinion written by Reinhardt and joined by Chief Judge Alex Kozinski also said Bagdasarian's call to "shoot" Obama wasn't an offense under the statute used to convict him because the law doesn't criminalize "predictions or exhortations to others to injure or kill the president."
Judge Kim McLane Wardlaw dissented in part, arguing that there was enough evidence to find him guilty of threatening harm.
(*) Judge Reinhardt is the judge that overturned the will of California's voters on Prop. 8, which forbade homosexual marriage, while concealing the fact that he was also a homosexual. |