A man was properly convicted for telling a judge that he would “kidnap your daughter,” the state’s second-highest court ruled on Thursday, determining the comments were a threat under the law and not constitutionally-protected speech.

The 2-1 decision from a panel of the Court of Appeals found that Adrian Jeremiah Brown had communicated an intent to personally commit a crime against the Adams County judge, and his message came after a history of outbursts, hostility and threats toward others involved in his case.

“Brown did not say ‘what if’ your daughter ‘were kidnapped.’ The statement is not posing a hypothetical action by an unknown or unnamed party, but a concrete active proposal by the speaker,” wrote Judge James S. Casebolt in the majority’s Feb. 17 opinion.

Even though the judge who Brown threatened did not take action immediately after his kidnapping comments, the panel determined she was justified in perceiving his statement as a genuine threat given everything she knew about Brown’s volatility. The judge, as the victim of a crime, went unnamed in the appellate court’s decision.

Although the U.S. and Colorado constitutions protect vulgar or even upsetting statements, there are circumstances under which a person’s free speech crosses the line into criminal conduct. The U.S. Supreme Court, in the 1969 case of Watts v. United States, decided that an 18-year-old man had engaged in political hyperbole at a rally, rather than made a “true” threat, when he insinuated that he wanted to shoot the president in the context of opposing the draft.

Using the Watts case as a foundation, the Colorado Supreme Court in 2020 established a set of criteria for determining whether speech constitutes a true threat. The court, in focusing on how the recipient perceives the alleged threat, deemed it necessary to examine the words used, the surrounding events and the relationship between the speaker and recipient, among other factors.

In Brown’s case, the Adams County Department of Human Services took custody of his infant daughter after learning she had methamphetamine in her umbilical cord. Throughout the process, Brown had been hostile toward the county’s caseworker and a magistrate assigned to the child welfare case.

During a subsequent hearing, Brown called the department personnel “kidnappers” and “terrorists.” Because county employees were concerned about hosting Brown’s supervised visits with his child, the judge offered to let the visits happen in her courtroom.

However, Brown continued to behave menacingly. He threatened to change his daughter’s “sh—y diaper” on the judge’s desk because there was “enough s— up there.” He clenched his fists and shouted at the judge. Finally, when the judge ordered a domestic violence evaluation for Brown, he lashed out.

“Let me kidnap your daughter and see if you don’t get angry,” he said. “As a matter of fact, where do you live, Your Honor? Let’s see if we can get this all resolved. See if you would be angry.”

He added, “I’m an activist. And they’re trying to shut me up. This whole case is designed to shut me up, and all you’ve done thus far is help them.”

Jefferson County prosecutors – who handled the matter in lieu of Adams County – charged Brown with retaliation against a judge, which requires a credible threat. As defined in Colorado law, a credible threat would cause a person to fear for their safety or the safety of their immediate family. 

At trial, the judge whom Brown threatened testified that following his comments about kidnapping, she was concerned because Brown knew about her children and could potentially find her home. The judge, who also received harassing documents at the courthouse from Brown, knew Brown had reportedly threatened to kill the mother of his child. The judge had installed motion-activated lights at her home and requested a security escort to her car after work.

A jury found Brown guilty and he received five years in prison. 

Courts “must be cautious in distinguishing between an emotional courtroom outburst of a frustrated litigant and a credible threat directed to a judicial officer,” Casebolt, a retired judge who sat on the appellate panel at the chief justice’s assignment, acknowledged in reviewing Brown’s appeal.

Using the state Supreme Court’s rubric, the panel determined the words Brown used and the surrounding circumstances supported the claim that Brown had crossed the line from free speech to threat.

“We also acknowledge that Brown did not apparently know where the judge lived, which militates against the threat’s credibility, but his question shows that he had sufficient chutzpah to demand information from the judge about her personal address, and his going to the judge’s bench and poking around it shows a failure to respect boundaries,” Casebolt wrote for himself and Judge David Furman. 

Judge Lino S. Lipinsky de Orlov disagreed that Brown’s comments amounted to a threat. Brown’s outburst – “Let me kidnap your daughter and see if you don’t get angry” – came immediately after the judge had referenced potential anger management treatment for Brown.

“Brown was not referring to a specific child when he mentioned a daughter of the judge. Rather, he was attempting to justify his anger about losing custody of his own daughter when he said to the judge that she, too, would become angry” if someone kidnapped her child, Lipinsky reasoned.

His belief was that Brown merely wanted the judge to see the situation from his point of view. Given that Brown had referred to human services personnel as “kidnappers,” Brown was likely expressing his feelings about government interference in a parent’s relationship with their child, and not about criminal kidnapping.

Because Brown had not crossed the line from words into action, nor had he promised to take action if the judge did not comply with his demands, Lipinsky would have reversed Brown’s conviction.

Earlier this week, Reuters reported that 4,500 threats were made against federal judges in 2021. A spokesperson for Colorado’s Judicial Department said it does not keep statistics on threats against state judges.

The case is People v. Brown.