Colorado’s second-highest court clarified on Thursday that a U.S. Supreme Court decision recognizing First Amendment protections for alleged stalkers does not apply to prosecutions where the defendant’s stalking is based on something other than their speech.

By 7-2, the Supreme Court handed down its ruling in Counterman v. Colorado in 2023, a case out of Arapahoe County involving a man convicted of stalking after he deluged a musician with messages both benign and disturbing. The majority determined Colorado could not find the defendant guilty solely if a person could deem his messages objectively threatening.

Instead, to prevent a First Amendment violation and avoid criminalizing non-threatening speech, prosecutors also need to show an alleged stalker’s recklessness — meaning he “consciously disregarded a substantial risk that his communications would be viewed as threatening violence.”

Since Counterman, however, some trial judges have believed any case in which an alleged stalker communicates with his victim requires prosecutors to prove the defendant’s harmful intent, even if the content of the speech is not at issue. Now, a three-judge panel for the Court of Appeals has ruled conduct-based stalking cases need not jump over the Counterman hurdle.

“Counterman concerned a stalking charge premised on repeated communications that implicated speech protected by the First Amendment and did not address any of the other forms of stalking,” wrote Judge Lino S. Lipinsky de Orlov in the Feb. 6 opinion. “Counterman does not apply to stalking prosecutions not premised on the content of the defendant’s communication or expression.”

Kent Scheidegger, legal director of the Sacramento-based Criminal Justice Legal Foundation who advocated against a mental state requirement at the Supreme Court, applauded the appellate panel’s decision.

“Stalking statutes can validly forbid communications that are so repeated and persistent as to amount to harassment, without regard to what the person is saying,” he said.

Stalking behavior

Colorado law outlines different methods of committing stalking. A person is guilty if they cause their victim to suffer serious emotional distress by repeatedly

• Following

• Approaching

• Contacting

• Placing them under surveillance

• Making any form of communication

Last year, the Court of Appeals re-evaluated the Counterman case following the Supreme Court’s decision and agreed a new trial was necessary because the jury may have convicted the defendant based on the content of his harassing messages.

Several months beforehand, in September 2023, Daniel Corey Morris stood trial for stalking in Mesa County. Jurors heard testimony that after his relationship with his romantic partner ended, Morris appeared at her art studio and her home. He banged on the door and demanded she talk to him. At one point, he concealed himself to apparently make her think he was gone, only to suddenly appear in the window again.

Although Morris shouted things like “Will you talk to me?” and “Can we talk?” his ex-partner never claimed she was threatened.

After the prosecution presented its case, the defense asked Chief Judge Brian J. Flynn to acquit Morris because there was no proof he consciously disregarded a risk his words posed to the accuser, as Counterman required. The prosecutor maintained they were not arguing Morris used threatening speech. Instead, jurors could convict him of contacting his ex-partner by “popping up in front of her window.”

“When we talk about ‘contacting’ in this case, there are no true threats being made by any speech,” Flynn acknowledged. But “I can’t allow the prosecution to just say ‘contacted,’ and then we don’t know if the jury is going to use part of Mr. Morris’ protected speech to find him guilty of stalking.”

Ultimately, Flynn only allowed the jury to decide whether Morris committed stalking by “approaching” his ex-partner. Jurors found he did not and acquitted him.

‘It’s about the danger and fear’

Because the constitutional prohibition on double jeopardy prevented Morris from being prosecuted again, the district attorney’s office appealed Flynn’s legal interpretation to the Court of Appeals to clarify the scope of Counterman for future cases.

“The fact of the contact,” wrote Deputy District Attorney Susan Manown, “was distinct and separate from any analysis of whether there was a threatening substantive communication — which was not the theory of the prosecution. This improper restriction by the trial court, preventing the jury from considering the statutory basis of contact, affected the jury’s consideration of the evidence and made the ‘not guilty’ verdict more likely.”

The appellate panel received briefs from multiple outside entities. The public defender’s office, Colorado Criminal Defense Bar and Office of the Alternate Defense Counsel supported Flynn’s ruling, as the prosecution’s theory in Morris’ case “contained elements of communication.”

The Colorado Attorney General’s Office and Colorado District Attorneys’ Council emphasized that a stalker’s communications can become so numerous, intrusive and unwanted that they can be criminal regardless of what the stalker is saying.

“Put another way, punishing appearing at a victim’s house yelling and screaming isn’t about the content of the words spoken; it’s about the danger and fear inherent in the defendant’s conduct and presence,” the attorney general’s office wrote.

Conduct unaffected

The Court of Appeals’ panel agreed that Morris’ conduct, not what he said, was the issue for the jury.

“As a result, the court should not have required the prosecution to prove that Morris consciously disregarded a substantial and unjustifiable risk that his repeated contacts with the victim would cause her harm,” Lipinsky wrote.

The panel disapproved of Flynn’s ruling, which does not alter the outcome of Morris’ trial.

Joan S. Meier, director of the National Family Violence Law Center at The George Washington University Law School, agreed that Morris’ repeated actions toward his ex-partner should not have triggered the speech protections the Supreme Court previously recognized.

“Counterman did not reach conduct,” she said.

In response to a question about why a jury would have been more likely to convict Morris of contacting his ex-partner rather than simply approaching her, Mesa County District Attorney Daniel P. Rubinstein said his office uses the term “contact” generally to refer to any verbal or physical interaction.

“I feel like most approaches would also be a contact (provided the victim was aware of the approach), unless it stopped a long distance away,” he said. In Morris’ case, the trial prosecutor “just defaulted to the more broad term we are used to dealing with.”

Currently, another criminal case is before the Colorado Supreme Court that raises the same question about how to apply Counterman to prosecutions not based on an alleged stalker’s speech. The government quickly alerted the justices to the Court of Appeals’ opinion in Morris’ case on Thursday.

The decision also marked the second time in two weeks that the Court of Appeals found Flynn misunderstood the law. On Jan. 30, a different appellate panel agreed Flynn wrongly acquitted a defendant mid-trial when he should have allowed the jury to render a verdict. As with Morris, the Court of Appeals could only disagree with Flynn’s application of the law, with no effect on the defendant’s acquittal.

The case is People v. Morris.