Kansas v. Boettger: On Petition for a Writ of Certiorari to the Supreme Court of the State of Kansas

24 Pages Posted: 31 Mar 2020 Last revised: 7 May 2020

See all articles by Paul G. Cassell

Paul G. Cassell

University of Utah - S.J. Quinney College of Law

John Ehrett

Gibson, Dunn & Crutcher LLP

Allyson N. Ho

Gibson, Dunn & Crutcher LLP

Bradley Hubbard

University of Chicago - Law School

Matthew Scorcio

Gibson, Dunn & Crutcher, LLP

Philip Axt

Associate Attorney

Thomas Molloy

Gibson Dunn

Date Written: March 26, 2020

Abstract

This amicus brief in support of Kansas’ petition for certiorari in Kansas v. Boettger discusses the important issue of whether the First Amendment require proof of specific intent to criminally punish violent threats. The brief argues that the First Amendment does not contain any such requirement and that creating any such requirement would interfere with effective prosecution of domestic violence.

The Kansas Supreme Court’s decision over which review is being sought required the state to prove that an abuser had a specific intent to cause fear. If allowed to stand, the decision will make prosecuting and preventing domestic violence even more challenging, without any corresponding benefit. In domestic violence cases, there is rarely direct evidence of specific intent, and domestic-violence victims often struggle to confront their abusers in court. Indeed, the impact of abusers’ psychological, emotional, and physical abuse is often so severe that victims frequently struggle even to seek help. The Kansas Supreme Court’s decision to impose a specific intent requirement in a case involving violent threats is inconsistent with decisions from other courts, the law in over a dozen states, the Model Penal Code, and the history and tradition of the First Amendment. This amicus brief concludes that the Supreme Court should grant certiorari to review the decision below and reverse it.

Keywords: First Amendment, violence, violent threats, domestic violence, domestic abuse

Suggested Citation

Cassell, Paul G. and Ehrett, John and Ho, Allyson N. and Hubbard, Bradley and Scorcio, Matthew and Axt, Philip and Molloy, Thomas, Kansas v. Boettger: On Petition for a Writ of Certiorari to the Supreme Court of the State of Kansas (March 26, 2020). University of Utah College of Law Research Paper No. 361, Available at SSRN: https://ssrn.com/abstract=3561883 or http://dx.doi.org/10.2139/ssrn.3561883

Paul G. Cassell (Contact Author)

University of Utah - S.J. Quinney College of Law ( email )

383 S. University Street
Salt Lake City, UT 84112-0730
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801-585-5202 (Phone)
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John Ehrett

Gibson, Dunn & Crutcher LLP ( email )

1050 Connecticut Avenue, NW
Washington, DC 20036
United States

Allyson N. Ho

Gibson, Dunn & Crutcher LLP ( email )

Bradley Hubbard

University of Chicago - Law School ( email )

1111 E. 60th St.
Chicago, IL 60637
United States

Matthew Scorcio

Gibson, Dunn & Crutcher, LLP ( email )

Philip Axt

Associate Attorney ( email )

Thomas Molloy

Gibson Dunn ( email )

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