The Colorado Court of Appeals has determined a man’s threats against a park ranger were not political commentary protected under the First Amendment, and upheld his felony conviction.

“William Montgomery disagreed with the government. He believed the government was treating homeless people unfairly, violating their constitutional rights, and ticketing them in a manner that was illegal,” said Erin Wigglesworth, the defendant’s attorney, to the panel of appellate judges. “The question is when a disagreement with the government does become a crime.”

On Aug. 4, 2015, Fort Collins park ranger Michael West was patrolling Soft Gold Park when he noticed a vehicle in the parking lot without proper license plates. He called to two men in a nearby shelter, asking if they knew about the vehicle. This initiated a confrontation with one of them, Montgomery, that culminated in the ranger taking a photo of Montgomery and Montgomery calling police to report harassment.

The following month, West and two other officers encountered Montgomery and his brother again, camping less than a mile away in the wooded area of a different city park. Although the other officers handled the interaction, at one point Montgomery turned to West and said, “You can quit your job and probably save your life.”

The hostile attitude toward West continued when Montgomery told a Fort Collins police sergeant two weeks later than West was “digging himself a grave in the forest right now because he can’t stop himself.” The sergeant interpreted the remark as an implication about West’s safety.

Although West’s supervisors instructed him to avoid all contact with Montgomery without others present, Montgomery ran in front of West’s truck in Lee Martinez Park on Sept. 30, 2015. He refused to let West leave. When backup officers arrived, they arrested Montgomery for the crime of attempting to influence a public servant.

“Of course, yes, the intent to alter the outcome of his job is there,” Montgomery testified at his trial, adding, “Ultimately, I would love to see him stop writing tickets.”

A Larimer County district judge found him guilty and Montgomery appealed, arguing his statements were free speech under the First Amendment. Colorado law deems it a felony to threaten violence against a public servant “with the intent thereby to alter or affect the public servant’s decision.” Although a conviction does not necessarily rely on a change in the public employee’s actions, West did alter his behavior to avoid giving tickets to Montgomery.

“You can’t threaten government officials for doing their jobs. You can’t say ‘stop doing your job, or you’re gonna lose your life,’ ” said Kevin McReynolds, representing the attorney general’s office at oral argument. “That is criminal conduct.”

The Court of Appeals panel evaluated whether a reasonable person would have interpreted Montgomery’s words as seriously expressing a violent intent. The judges decided in the affirmative.

“Montgomery admitted he was angry at West during the August 4 interaction. He conceded he was trying to carry out a citizen’s arrest of West on multiple occasions,” wrote Judge Jaclyn Casey Brown for the three-member panel. “And, the morbid gestures like digging a grave were recorded on video. While it is true that aggressive behavior does not automatically make a statement a true threat, it is nonetheless a relevant factor to consider.”

Furthermore, the appellate panel noted that West, who had been in law enforcement for more than 30 years, took the grave-digging comment as a serious threat to him. The concern of other officers and supervisors attested to the perception of a genuine danger.

That comment, claimed Wigglesworth at oral argument, was “in the context of a large political statement,” in which Montgomery warned “there are some constitutional claims and lawsuits that will be coming for” the officers.

“Wasn’t that digging-the-grave comment, though, made specifically with reference to Ranger West, as opposed to general police policies or general law enforcement?” asked Judge Rebecca R. Freyre.

Wigglesworth admitted it was, but maintained the comment was not a threat of violence under the crime of influencing a public servant.

While the district court judge did not believe Montgomery literally wanted to kill West and bury him in a grave, the appeals judges also did not think Montgomery’s statements deserved protection because he was reportedly attempting to make a point about the unfairness of anti-homeless camping laws.

“When the balance of the contextual factors establishes that the statement is a true threat, one may not escape liability simply by weaving it into a legitimate conversation about policy change,” Brown wrote.

The case is People v. Montgomery.