L.O.G. 213 What is a threat

All right, Greg, well, good morning. Today, we are going to be talking about "what is a threat?" We're doing this using a current case that we just heard the arguments for at the Supreme Court level. The Supreme Court has to decide in this case that I'll get to in a second: "When is a threat a true threat?"

We've talked about that from a bunch of different perspectives, meaning if you feel threatened, you're going to act as if you are threatened. There's no difference between that. But we see people use different terminology, like "threat indicator," which, you know, me, I don't like things like that. They're trying to articulate something that can't always be articulated without a defined context and without further explanation. You can't just say, "Well, this is a threat," because if it is, then it's so obvious. The person pointed a gun at you. You don't need to get into what that is. That's very clear, obvious. Anyone would understand that you've met some sort of lethal force threshold. So, it's either so obvious that it doesn't need a name, or it's something that people are trying to use. So, with this case, I'll jump into it, unless you want to say anything before I give you (more details).

No, no, no, it's a great, great assessment.

Because there's a bunch we can get into, and I want to give everyone the background of this, and of course, I'll have links in the episode details for you to read up on it.

So, this is just being heard, I believe in April, at the Supreme Court. The revisiting question the court has never answered is: "When is a threat a true threat?" This case involves Coles Whalen, a singer-songwriter from Colorado, and Billy Counterman, a man convicted and sentenced to four and a half years in prison for stalking Weyland and making true threats against her.

Counterman's messages went over a series of a few years. The police estimated he sent over a thousand messages to the singer, and that ranged from affectionate to angry and aggressive, and gave the impression that he was watching her. At one point, Counterman inquired about her mother after Weyland had just paid her mom a visit. Another (message) he wrote, "Died, don't need you." Another message he wrote, "I'm currently unsupervised. I know it freaks me out too."

Counterman also served two jail terms for far more explicitly violent threats against his ex-wife and family. What Weyland said (is that) this completely ruined her life. Basically, she was completely consumed by it. She said, "I thought..." — this is one time she was on stage, he wasn't even there or anything, she just started thinking about it — "I thought I might be having a heart attack. I had to leave the stage, which I'd never done in all my years of performing. When I went backstage, I just sobbed for an hour. I felt horrible. I thought maybe this isn't worth it. Maybe I shouldn't continue." She stopped performing for a while. This is something that she didn't just have to put up with and could hire a team to go do. This was severely impacting her life.

So, the legal question in this case is whether the definition of a true threat is in the eye of the ordinary reasonable beholder — so, in this case, in Weyland's eye, what a threat is — or in the eye of the writer of the messages. So, is it how the message was received, or was it the intent of the message?

The lawyer, John Elwood, who's representing Counterman in the Supreme Court, points out that his client has been diagnosed with a mental illness and didn't know he was frightening Weyland. So, that gets into mens rea (a legal term for a guilty mind or criminal intent) and a whole bunch of other things. But he's saying there was mental health; he didn't understand that he was threatening her. He said, "A true threat standard that considers the speaker's intent is necessary to avoid criminalizing inevitable misunderstandings." His example was, "If you hit someone accidentally, you may bruise that person, but that's not a crime. But if you hit someone on purpose, that's a crime." He said, "In the internet age," — and this is true — "words on the screen are divorced from context," because it's important to remember a lot of this happened over Facebook.

The First Amendment, he contends, doesn't allow the state to punish a person based on what a reasonable person receiving a message might think. The question is what the speaker intends. So, that's his argument.

Now, Colorado's attorney general counters that under Colorado law, the question is whether an objective person in the situation of the victim would feel threatened. He notes that's what the trial was about in the Counterman case. So, he's saying this is why it went to that trial and why he was arrested and jailed in Colorado. He said, "Since the founding of the Republic, we've had threat statutes that have allowed the prosecution of threats without regard to the specific intent of the person making the threats." He points to different amicus briefs filed by victim rights organizations and different studies that show, for the victim, the psychological effects of the threatening behavior are frequently far worse than an actual assault. He said, "We live in a time of rising demonization and threats of physical violence and actual physical violence. It's important that the law be able to respond."

The discussion here, I'll throw a bunch of questions here that we can get to, Greg, is: "What does the prosecution have to prove? Does it have to show that the defendant intended to frighten his target, or is it enough to show that his words would have the effect on a reasonable person?" Because this gets into what is the definition of a threat. They're talking about mens rea, the subjective nature of experience that we always talk about. There's intent and subjective intent, there's perception, there's even a mental health angle in here. There's a lot we can get into here. Those are the big points, but we'll probably get into a bunch of different areas. But I at least want to give everyone the background of the case of why we're having this discussion, because legally defining what a threat is is very difficult to do outside of a given situation. You have to give an example and say, "In this example, this is what it means," but in that example, it might mean something different. So, that's everything upfront.

No, it's and it's such... Look, we could do a month of discussions, an hour at a time, on the topics you just brought up. There's so much that's in there. So, let's give an example. Let's go outside big to inside small.

There was a caper in Canada where an incel killed. During that trial, it was brought up that the argument was that the incel is guilty of terroristic threats and terrorism. This is a crime of terror. The reason that things like that happen is because we assign value to words that have already been defined. The reason I want to bring that up — and that's a side argument, gosh, that's another podcast — when the Attorney General in Colorado was talking about, he dropped the word in the sentence: "specific intent." The reason he threw that in, and most pundits unless they're linked scholars don't know this, is there's specific intent and there's general intent.

Yeah.

So, what's happening is sometimes a standard is set. Like, for example, the Supreme Court this term revisits a question the court has never answered many times. Right, case law: "what a threat is, what a true threat is."

Go ahead. I think what people mean by that is there's no legal definition of what a threat is, but there's case laws, there's many, many definitions of threat. In legal terms, there are cases where people use that term over and over, which now becomes precedent. But the idea is that each case has to be based on its individual merits. While you can cite precedent, the idea is, is this case precedential?

Yes. So, the idea is that, look, first of all, the Attorney General in Colorado, the line: "The psychological effects of threatening behavior are frequently worse than the actual assault." I wrote that down while you were saying it. That's huge. It is.

I also want people to remember, so I'm going to lay more facts on. If you've ever listened to Coles Whalen, she actually wrote a song about the Billy Counterman incident. We're not talking the Foo Fighters, we're not talking Mick and the Stones. We're talking about a good entertainer from Colorado that might fill a venue of 100 to 300 people once in a while.

Yeah.

This is why I love the Supreme Court, because what the Supreme Court is doing is the Supreme Court is saying, "Listen, this case is important enough because we haven't fully defined a true threat." Yes. And the argument doesn't matter that this person isn't going to impact a million people with their song. It's that she was personally impacted.

Yep.

And the law was there and it's supposed to protect her, and it didn't. That's the argument. So, the simple argument is you have a standard called the "reasonable standard," which is, "Would an objective person in that situation at that time do the same thing, or think the same thing, or react the same way?" Then you got the truest, I'll call them, where you must demonstrate intent. Intent must be demonstrated in the threat. Well, a good dodge for intent being demonstrated is saying your client doesn't have the mens rea because they're not well educated or they have a mental illness.

Yeah.

That's a dodge a lot of times. I also say, "You got to take a look, what's the best predictor of future behavior? Past behavior." In this case, Billy Counterman did the same type of behavior with his previous wife, and went in and was incarcerated for it.

Yeah.

So, if you made that argument back then, you should have known exactly.

Yeah.

But now, since you've already been established in this, because what is it? What do we call it? A pattern of behavior? Yes. So, the idea is that when you're taking a look at this specific series of criminal activity, it's hard not to say that there were threatening behaviors and that the benchmark for that is that Coles Whalen was an absolute mess. She would go on stage and constantly be fearing that he was going to show up. She didn't know if he was in the audience. She didn't know if he had enlisted the aid of others to do so. Brian, nobody has the right to put you in that type of fear.

So, here's a companion argument: if you felt threatened or in fear when you went to a movie theater because of the nature of the film, and it made you fear that you were actually in danger for something, even if it was a documentary, you could always get up and walk out of the theater and change your situation.

Right.

But in this one, you can't because Counterman, and the key thing is that other cases sometimes cover things for you. So, in stalking, his behavior was criminal stalking as well. And you said a thousand messages over a weekend. You and I recently read a caper where it was 30,000 messages from Friday to Sunday. Brian, that type of behavior. Acting up versus acting out is a good point to bring up here. Counterman was given numerous chances to cease and desist. He was given numerous chances. He was given a message from the court early on in his first marriage that this behavior was absolutely (unacceptable).

Right.

You see? So, here, I don't think that this is one of the first times I'll say that the general intent is enough, as long as the reasonableness standard is met. So, if you have enough people that would say, "Yes, I would feel threatened by this behavior," then it becomes a true threat. It's one of the first in a few democratic arguments that I will make about the law, but this is a good one for that specific argument. So, we might argue about that, you and I.

Well, and here's what the attorney general for the state of Colorado brought up some good points, saying, "Well, and this is where we're going to see more of these cases," because not only is he making the argument, is (Counterman's attorney) making this argument: "Okay, there was a mental health issue in here." He's also making, if you go listen to his arguments at the Supreme Court, he's making a whole bunch of First Amendment arguments.

Yeah.

Which, but that one, that... and I get that, because this was also, like I said, a lot of it was done over social media. So, they're both acknowledging the fact that there are other cases, and there will be more as we move more and more into social media, of what constitutes a threat, what constitutes incitement, what exactly. So, that's great. I love seeing that play out because it's important. It's already established, so how are we going to interpret it in the digital age? Especially with the incitement stuff, because this "imminent Lawless action," which has not changed over time... in the 1800s, it was very different. Now something can be imminent. A tweet can be imminent and start the fire. It took longer time back then. So, that's part of what's going on here.

He brought up the point where, "Look, psychological and emotional abuse is oftentimes worse than physical abuse." Which is shown, but that wasn't always (acknowledged). People didn't really acknowledge that or know that. Really, it was always like, "Wow, he never put his hands on her." It's like, "Well, Jesus, yeah, but he's terrorizing her life and she's psychologically traumatized for the rest of her life." So, there's a whole bunch of those arguments in there.

This also gets into what we talk about a lot and how perception is reality. That's the thing. It's not (that) intent always matters — what the intent was — but you have to take into account the other end of the reception of that message and what a reasonable person would think in that time, because that's constantly playing out, or we see that play out on the news or on social media. A lot of people say, "Well, I was threatened." It's like, "Well, no, were you, though?" Or, "Should you feel threatened by words?" Because words matter, but they're not as powerful as actions. But if you're doing both of those... if I'm making those threats, Greg, and I'm showing up at your concerts, that's not just words anymore. That's me making a physical presence.

This is the part that interests me, because they obviously brought in all the First Amendment stuff, and the Supreme Court's typically been pretty clear on that. There are exceptions that have been kind of changed over time. You go back to even what was Schenck v. United States. A great landmark case for anyone, this was during World War I. Schenck was passing out flyers, mailing stuff out, criticizing the draft at the time, criticizing the war. But due to some legislation that had passed, I forget what it was at the time, but there's some national security legislation that kind of made what he said illegal. The Supreme Court upheld that and said, "Yes, it is illegal what he did because of this law that is now on the books and because it was during a time of war." That's also where you get the famous line from, which even the justice that said it later on kind of regretted saying this because it's a horrible description, where he said, "The most stringent protection of free speech would not protect a man falsely shouting fire in a theater and causing a panic." Now, everyone uses that line, and it's the worst line ever. You can't, you know, "fire in a crowded theater." You kind of can, but the idea that... which, but that gets into what is incitement. Incitement typically falls under the (standard): "It's intended to cause and likely to cause imminent lawless action," that your words are going to fall under that. So, all of these cases then start to kind of build up and build that standard of what it means.

He's arguing that under a free speech right, under a First Amendment right. We're seeing that play out over and over. Oftentimes, when people talk about free speech and what they think is free speech, it's usually pretty wrong. It's typically what I've seen is people like their speech to be heard and not other people's. And it also doesn't mean you're free from the consequences of what you say, it just means you're free to say it. But that's the part where I kind of feel like it sort of got off the rails a little bit in this case. Not off the rails, but I didn't agree.

But this goes back to, again, everything we talk about is what is a threat and how do you articulate what that is. It's based on the circumstances that you're in and that reasonable person. So, you have to take into account the intent of the individual and how that was received. Let's say... okay, someone wants to... I'm staying at a hotel, Greg, and I'm in there alone in my room. Someone wants to... they're just some punk kid that wants to mess with people at the hotel. At two in the morning, that kid pounds on my door and says, "I'm going to come in there and I'm going to get you." I'm going to be like, "All right, what the heck is this? This is annoying. You're waking me up." Now, I change that up. Now, my wife is at the hotel alone at night with our daughter in the room, and that same thing happens. That completely changes the dynamic in that situation, because even though that kid's intent was the same, the victim on this end, the person receiving that, has a completely subjective experience, and it's completely different. So, does that change how you can process? So, that's what I'm saying.

No, no, you're exactly right. You're spot on the argument. But that's why your focus can't be on the First Amendment, because the First Amendment brings in hundreds of years of case law where your argument is muddied. It's not a clear message. I think that Counterman's defense would be much better by saying this incident, while regrettable, was caused by a lapse in mental judgment brought on by an illness, or injury, or trauma. Because you can use the first marriage as trauma, and his incarceration there clouded his judgment further. Brian, that's a good argument. Why? Because now you can't bring in Schenck and show that, over time...

Look, this is what people don't understand about America: in America, the Pony Express was only around for a year, and then it was gone. Why? Because we didn't need it anymore. Because other, faster means of communication came in. P.T. Barnum created "The Solid Muldoon." The first time he used it was in England, and he put Portland cement, an antler, a rib, and a foot from a chicken into a big mix and made it into a sarcophagus-sized human. They dug it up, and he paid a bunch of people to say, "It's the most amazing find he's ever seen." He did it again three or four months later, and did it on the East Coast of the United States and called it something different and said, "Oh my God, we found the connection! This is the connection between apes and man!" Both times made hundreds of thousands of dollars on the discovery.

What was the difference? The difference was time, because you had to take a boat to get to America, so news didn't travel that fast. So, there was no "imminent lawless action" in something that took that long to get. Before the railway, before the Pony Express, it took a long time. So, if I wrote, "I shall smite thee when I see thee in California," it didn't have the same kind of feel then. I'd forget I wrote that by the time I actually ran in here, or died of scurvy, or rickets.

So, the idea here, Brian, is that what you have to consider now is that we're talking "credible threat." A true threat. I know they're going to change the wording when the Supreme Court does it, and the Supreme Court is going to come down with a standard. Why do they have a standard? Because if you're "polly purebred" as a victim, and anything scares you — a loud fart causes you distress, you passed out when you heard a shopping cart tip over it, wherever — that's going to be a different standard for thinking that the threat was credible, because you're basing it on the person, the intended victim. You can't always do that. The state has to step in sometime and go, "This is what a victim is. This is how you can tell what a victim is." You get it? So, they're doing that in our best interest because it'll cover more people and it'll protect more people.

So, the uniqueness of Coles Whalen's argument here, that she was personally traumatized, that has to go by the wayside. What has to come to the forefront is that it's not Billy Counterman, it's any person that does this behavior will be guilty of this crime, whatever that crime is going to be named going forward. You get what I'm trying to say? Because the credible threat put this person under mental, physical, monetary, financial distress. You see? What if I had to sell my house for less money to move because Bakersfield just became too hot to handle? That's what we're looking for in a case like this, that this is going to set a new standard for how we look at certain cases.

I go back to that terrorism argument. Listen, when you start naming things and you start pulling things out of the box, then it becomes too specific. The law can't be too specific; it must protect all of us, and it must protect all of us equally, and it must protect Billy Counterman as much as it protects Coles Weyland.

Yeah, and that's... that's a crappy argument, but it's true.

No, in this...

This is why, you know, we like cases like this. And you brought it up, too, because, you know, she's not some super popular singer. This isn't Taylor Swift, who has a full team and actually, like Taylor Swift, literally has cameras and biometric software that scan people that come into her show because she has a database of known stalkers, and they can just compare that to a database, and they can know right now if one of these people is here, or someone who's had a restraining order against (her). I mean, but this is a massive, massive celebrity you're talking about right there with the resources to do that.

Well, I can't do that if I'm just a regular person on the street. I don't have that ability. But even that regular person, you still might be dealing with the same type of threat that Taylor Swift is. That's a good point in all of this, and it's important. Anytime I've had anyone call me and ask me questions about this type of stuff, or maybe it's a behavior from someone, I take... you just do the same thing: get the yellow pad out, write down what's going on. Yes, and especially when it's a guy doing something with a woman, and I'm like, "Okay, did you file a restraining order? You can get a temporary restraining order, and it'll go up, and it's documented. You can present this is everything that's going on." You're like, "Well, no, I don't want to do that." It's like, "Well, then everything you told me about, none of that's actually happened." And it's like, "What do you mean?" "Well, it's not documented. No one knows that this is going on. So, therefore, if he does something, that will be in the eyes of the law, under the court, the first time this ever happened. That's how it's going to be looked at." I go, "If you don't do these things prior, or if you don't document it, all this is why... how many times we say you have to document something that's going on. You have to make note of it so that you have some sort of absolutely (solid ground to) stand on."

That all falls into this case as well. It does go back to things that we always talk about, no matter what the case is or what the situation is, and that words matter when you articulate something. Absolutely. Just calling something a threat, that doesn't mean something. You and I have a different definition that we're even talking about right now. Absolutely. So, it's what is it that made it a threat? How was this a threat? If you can't articulate that, then either maybe it's not really that big of a threat, or you have to get better at articulating it.

This is kind of on point, Brian, because this is what lawmakers are supposed to do, because the nuance of the law takes time. That's why Congress is supposed to be sitting around fighting these battles for us. I'll give you an example: if they were involved in an intimate relationship, it changes the dynamic. If they're familial, that changes the dynamic. If they're an employer, that changes the dynamic. That's what Congress is supposed to be doing every day when they go to work, Brian, is figuring out those nuances and building a subset of rules that are simple enough to follow, then challenging those rules to make sure that they work for everybody.

I'll give you an example why cops hate this. Coles Whalen is known to Colorado law enforcement. Oh, yeah, because she came in over and over. How many times they call! And now they're going, "Here we go again with Coles Whalen." She's a victim, folks, but the idea is that when you're a cop, and you've got really big cases to fry on your front burner, the last thing you want is Coles Whalen calling and going, "This guy made seven more phone calls." Now, if that sounded like an ass-hole-ish remark, understand that it was intended so. But that's the truth of the matter.

I'll give you an example. So, Billy Counterman says, "Hey, listen, Coles and I were intimate for a good long time, and now, you know, it's just typical lovers breaking up." The cop leaves and goes back to Coles and says, "Hey, listen, he's telling me that you guys were this." And then she goes, "Nothing's further from the truth. I've never met the man in person." So, that scrum starts, Brian, and now there's the belief cycle that goes on, just like with sexual assault and rapes.

Oh, yeah.

Okay. And now, all of a sudden, Billy starts intimating during some of his threats — Billy Counterman, the alleged suspect here — starts saying stuff like, "Hey, saw you last night. That was amazing!" And now Coles Whalen doesn't know if he's actually in a position to make those (claims) or if it's mere conjecture, if he's just lying, if this is a fantasy sequence. So, the idea is, be a cop and be right in that report. There's a lot of allegations, there's a lot of paperwork, there's a lot of other things.

Now you get a protective order. The great thing about what Brian was telling you folks is once you document it, once you have a case number and a case file and you get a protective order, now every time Billy Counterman comes in and does something, he's violating the law. He's been told not to. It's like a trespass. He's been told, "Stay out." You know what I'm saying? And he came back in, so he can get hooked. That doesn't make it easier in the long run.

The idea is that Coles Weyland, we have to envision her as you and me, but we also have to envision Billy Counterman as you and me, that doesn't know better in this instance. So, we have to teach him. Okay, so how do we teach people that their behavior is out of line? Well, we used to put them in a penitentiary and make them be penitent, give them a spoon and a Bible. Well, we don't do that anymore, do we? And we talk about rehabilitation. Well, Billy's pattern behavior, Brian, it shows a lot. So, is he rehabilitatable? And is this an offense where it's better served by the mental health community than by the law enforcement community? The Supreme Court's going to answer all of that.

But remember, the Supreme Court doesn't write policy. The Supreme Court is going to say, "Here's what's important. Focus on that," and send it back down. I want our viewers and listeners to understand that. The Supreme Court will say, "Yes, this is in line with the Constitution and the amendments of the Constitution, and we suggest you take another look at this part of the case because the answer is there. We all agree that that means more than any of the other rhetoric there." Now, they could come with a definition. So, the Supreme Court could refine and define "threat," "credible threat," "true threat," but they're not going to make a specific decision where they say part one, part two, part three. That's up to lawmakers, Brian.

So, this case screams for some congressmen in Colorado to come up and go, "We can't ever have this happen again in Colorado because this poor woman is ruined." If you read anything she writes now, she's not the same person as early in her career. She didn't ask for this, Brian. She was targeted by this guy. So, I think that's an important standard too. What comes of a SCOTUS (Supreme Court of the United States) case is hugely important to all of America, even though this feels Colorado-centric, Brian, it could be your daughter, it could be your brother, it could be you that's feeling the pain.

We also want to state that we want what's best for Billy Counterman. Now, if that's additional incarceration, we want that. If that's additional mental health outreach, Brian, we want that too. And people go, "Well, how can you want that?" Because if Billy's really, truly a mixed-up kid that didn't know what he was sending, he needs help. But if he did know what he was doing, and it's likely that he did, Brian, then he needs a good spanking.

Right, right. And then legally, that gets into the... that's what comes next, is how we handle that stuff is not always great. He's shown now how many times has he done this? What did it take for him to originally get incarcerated for those types of charges in the past, and then now he's doing it again? I would say 900 calls in... that's the thing is that he, you know, to me, if looking at this, I would go, "Well, it's clear he's not learning from his past mistakes, and he's been told this before, and it's going to continue until there's some major intervention." But that gets into the how we deal with this societally, and what we mean by incarceration, and what we think people should do, and all that, but that's constantly changing and getting played out as well.

There was the other thing you brought up with your example of the investigator or police officer going, "Oh, here we go, it's Counterman again," or whatever. That's kind of the other part of this case that I want to discuss, because it's how we take in information when someone's reporting something. Meaning, I look at it anytime someone says, whether it's us doing work, or someone just personally saying, "Hey, here's what's going on," I'm not in that moment trying to figure out whether they're telling me the truth or what's really happening or anything. It's just a very much, "Okay, I got a blank piece of paper here, and I'm going to fill that up with what you say." And that's it. I'm not going, "Wow, what did you think? Are you sure you really thought that way?" No, it's like, "Okay, you tell me what you think is going on." It's not my role in that moment to figure out the situation. It's to... what? It's to just flip that switch to receive, take it all down, and then go back and go, "Well, let me take a look at this. Let me ask you a couple of questions." But a lot of times we come in with that, "I know what's going on here. I see what's happening here." We start to miss those sort of indicators, or we miss what's important, and that's just natural. That's human nature. We do that. We want that conclusion, of course.

We were just on The Distinguished Savage Podcast talking to our buddy Walt, and he was talking about communication issues with his girlfriend, going, "Well, I'm already trying to give the answer and fix it." I go, "Yeah, because you haven't flipped that switch yet to receive. You're already in problem-solving mode, and you haven't sensed it yet." You already go... and sometimes that stuff plays out in these cases, or it plays out in other cases, but it gets back to what is a threat. "Well, I didn't think it was a threat," or "That's not a threat." It's like, "Well, no, it is to that person. It is in that place in time." Understanding that is, it gets a little complex, but we have to allow for that. We have to know that those are going to be different. There is no one standard for what that means.

That's why, look, I got roped into reading everything that Calhoun and Weston put out and buying their high-priced threat assessment management strategies book, which is more expensive than any book I've ever purchased. I read it in an hour, and then I had buyer's remorse. The reason is that when it comes to assessing and classifying threats, we're broken. What I mean is that we've got this whole assessment criterion that all these doctors write about, and they put together and they say, "This is how you assess." But because it doesn't cross over into law enforcement or your legal rights, there's a disconnect.

So, what they did is they were talking about... Calhoun is the doc, and Weston was a former cop that's now a doc. They were talking about howlers and hunters. Now, some people howl, but they never act, but the hunters are the ones that are going to act. In a long, protracted case, our buddy Brian Urich from Ann Arbor was talking about it, that the guy went and bought a gun, and that they tried to intervene by calling the guy's mom and saying, "Hey, would you turn over the gun? That's going to lessen some of the severity, it's going to take the pot from boil and put it to simmer." So, they called the mom. The mom agreed to it, and it was in Warren, Michigan. They called the Warren PD and said, "Would you go over and pick it up?" And the Warren PD cops went over and go, "You know, if we pick up this gun, I'm going to have to carve my badge number into the side of your gun that you bought. We're going to put it in the evidence room, and it's likely you're never going to see this gun before." And the mom was like, "Well, I really don't want to do that." And then the doctors are going, "Yeah, but your behavior would help put it back."

Brian, this is why we need a gosh darn definition from the Supreme Court, because if it was a credible threat, and they could determine that the gun was part of the process — it's part of the intimate knowledge of this caper, and removing the likelihood of a weapon or a person purchasing a weapon had something to do with the assessment strategy and the classification strategy — then we have something. But we don't. We have two wheels spinning. We have the assessment and classification of threats over here, and then over here we have the legal, what I can do based on law.

So, like, for example, in Colorado, where this case started, the Counterman v. Colorado, the idea is that you have Colorado Revised Statutes. So, it's a statute, and you go down and you go, "12.2-107 says that you shan't do these behaviors while dressed as a chicken in a public location," whatever. And Brian, it either meets that, exceeds that, or it falls short of that standard. So, the reason I'm busting up about threat assessment management strategies, those are fantastic, but you're filling the page. You said it earlier, you're filling up the report with words. But what's the standard for getting something done? Now, in those same things, they'll say, "Well, sometimes you don't want to go to the court and get a restraining order because that might exacerbate the problem and make the person angry." Yeah, that's not true, and it's not fair.

The idea is that, one, you got to bring somebody up on a radar, or they're not targeted. A targeted (individual), in other words, they're not on the lips and the tongue of the local police and the court system. So, if Coles Whalen kept silent about Billy Counterman's actions and just lived with it, Brian, which a lot of people do in their entire life... "Their neighbor was such an idiot, kept yelling about the dog across the fence, and I swear to God, he came out that one day and had a gun." Brian, those capers happen every day, and nothing ever happens with it. And if they do, they're a log sheet where the cop came over and goes, "I swear to God, if I come back here, everybody's going to jail." That's how they're mostly handled. That's not the way that we need to handle this, because this needs to be a benchmark, a landmark. So, people that are being truly threatened, true threats, have recourse.

What's your recourse today? You can go to a cop and go, "Do something about this," because I'm telling you, imagine being the fourth cop into the series and saying, "And so you've made a report about Counterman before?" "Yes, it was in Aurora, Colorado." "And what did they do?" "I don't know what they did, but he's still threatening." "Okay, well, what do you want me to do?" Can you hear that playing out? Now, you're going to fault the cops, but the cop doesn't care unless it meets a standard. He's not there to be a mentor. He's not there to be a coach in your life and tell you what to do next. That's not what he's supposed to do. He's supposed to make a determination on the law, go to the detective bureau, and say, "Hey, I think we got a caper." I feel strongly that we have to mention that, because it's a hard life as a cop deciding what your real role is.

And yeah, they might not even know about it in the past incidents with this person reporting. They're thinking this is the first time or first thing, and certainly the first time they're hearing it.

Right.

And that stuff will happen. The other parts of this, too, is when it gets into... I mean, his attorney walked into, "Well, this might fall under free speech realm," and open up that can of worms. That's where he wants to go with the case. But this is what I do see a lot now of people behaving on social media and where you do have these sort of attacks, in a sense, and people threatening or making threatening statements. He brought up a good point: what you read on a response to a social media post is very much out of context if you're just taking that and reading that out loud in a courtroom. You're going, "Okay, well, that sounds much worse than it is." But in the context of this, "I see you're angry at this post and you have the right to respond. That's what this platform is."

Again, that's what I think the interesting part of the case is. I don't think they're going to get into that in terms of the ruling (of) the Supreme Court, because not at this level, because this case doesn't fit that mold. It's not one that falls (into that).

But they're going to cite it. They're going to cite. These attorneys are going to cite that when you said, "I will effing end you" on an Instagram, that it was less powerful than when you said that in that hallway at the hotel while you were pounding on the door. Do you see what I'm trying to say? So, they'll bring that up to shine the light, Brian, but it's not your main (point) to the case when it is going to be the conclusion of Counterman v. Colorado.

I agree. I wholeheartedly agree. Yeah, and this is also part of the reason we're having this discussion, too, is that this is kind of a semantic discussion because it's important with how we use words. That's why it goes back to when I see things like a "threat indicator" or a "pre-attack behavior," and they're... sometimes someone's just trying to put words to something they've seen before, but it changes in every context, so you don't know how to describe it in that context other than a "pre-attack behavior" or "threat indicator." Is it a threat? Is it not? It's like, "Well, that's a nebulous thing that changes with every passing second based on what's going on in the situation." So, you can't jam a square peg into a round hole. You can't fall into that trap of "when someone does this, it means that." It's like, "Well, no, it doesn't. It meant that the last time you saw it, but it might not mean that right now." Does that make sense?

But that, plus artifacts and evidence, and now the atmospheric shift that things are in motion that weren't in motion before. That new constellation of elements coming together would tend to show that there's going to be "imminent lawless action," Brian. I mean, that's why what we teach is legal, moral, and ethical, because every culture on the face of the planet has what we teach as part of their legal standard. Yes. Okay, so this means nothing, but this, and this, and the confluence of that together, that generally means that you're going to be in trouble.

Now, what other things would I have to see to make this an imminent threat, to make this up? So, like the law talks about ability, opportunity, jeopardy, and preclusion. We can talk about that in this context, because if I said, "Coles Whalen, were you in imminent jeopardy from Billy Counterman's threat?" "Well, no, I guess not, because I didn't know when he was going to strike." Now, what we're doing, Brian, now that's a lexicon in court starting to fight us. So, what we have to do is we have to come up with the right words for what type of peril or jeopardy that Coles was put into. If that's financial and psychological and sociological and physiological, Brian, that's what they're going to do. They're going to say, "If it meets that standard, then it was an illegal action."

Now, I'll give you an example of this gosh-darn security posture assessment nonsense that's out there online right now. I saw a video yesterday, and it is a poor video. Remember, folks, if you can record it, you can stop it. Of a guy in the middle of a town hall, it's a medical conference. People are badged. They came in. They're paying money. They're at a convention center. Here's this table full of doctors, and they introduced the one doctor on the far right end, and a guy gets up out of the audience, walks all the way through the audience, goes over there and starts slapping this guy and yelling and saying, "This guy slept with my wife and he's bad," and slapping. The guy's trying to dodge and everything. People are getting up. The first thing that people do, they start pulling out their phones and recording it. Other people keep trying to go on with it, "Hey, sir, stop!" Some people feel uncomfortable and walk away.

Brian, when you're talking about assessing threats, if you're talking about doing it in the moment while it's happening, that's well too late. I get it. "Asked and answered, your honor." What I'm saying is that if you're going to host a public venue event and you're going to invite people to that, you have to have an internal protocol for, "What if this gets out of hand? What if this slides sideways? What if somebody gets up and says, 'By the way, you slept with my old lady in high school,' and comes up and charges the stage?" So, here, when Coles made the decision to be a public entity with her music and host concerts, she had to know that she could reap the whirlwind, but it's not her job to rein in Billy Counterman. No.

So, that's the seesaw that we're on. With the doctor in the conference, he should have expected... he should have said to the people that are hosting the conference, "I'm planning on speaking to the conference," because we don't know if this guy's a nut or not. The story hasn't come out whether it's a true incident that the guy slept with his wife or anything. It was just allegations on a face-slapping, as they used to call it back in the Detroit streets. But the idea was, Brian, that if we speak, what's the number one thing we're doing with this caper that's coming up in New York? Who's our security? What's our inner perimeter? Who's going to be invited? Why? Because we are responsible for our own safety, but so are you, venue. So are you, host.

Yeah.

So, in this, Coles Whalen had a reasonable expectation that she was going to be protected against the Billy Countermen of the world. The law let her down. So, you see that? That's a precarious balance, it's a house of cards, isn't it? Because, you know, who do I blame? Well, I can always sue somebody when after the fact because you didn't assess the security requirements on the ground properly before we showed up. You get my argument there?

No, no, that's another one. I get your argument. The reason why a lot of these cases, especially with the stalking stuff, keep happening, it's not always the law. It's how these things are reported, how they're handled, and how they're articulated. This is part of the discussion because, like you just said, a police officer shows up, has to take a report, or someone says something. "Okay, great. Hey, there's not a lot we can do. You can go through the court, you can do this." It's like, "Well, well, no, there is a lot you can do." You can document this stuff. Maybe not that individual officer, meaning it's not their responsibility. It's the victim can do it by using this and actually literally documenting everything that's going on, taking this from a subjective to objective standard of what someone else would think, and really going after it and staying on top of it, because it's not your... like you said, your safety and security is your responsibility. But this person doesn't have the right to do this to you. If you can show how much they're impacting your life before it gets to this catastrophic level, or before it gets to the point where they may physically do something, you can show that. You can do that.

How many (times)? She could go to a therapist, and they could document all the ways that this has impacted her life psychologically and sociologically and physiologically, and show this: "This is the harm that this person's actions are doing." So then it's no longer covered by free speech or First Amendment right, because you have the right to do that. That's what I see in a lot of these cases, and everyone says, "Well, they're tough, and it's a lot of he-said, she-said." It's like, "Well, no, not necessarily." Not if you really look into it. You can show who's doing most of this and who's causing the reaction out of the other person for them.

That's the thing, because a lot of these cases, or a lot of them, are typically... a lot of times they know each other. The parties, both the offender and the victim, had some sort of past, like you brought up, whether it's an intimate friendship or they were together, whatever it is. That's what makes them so volatile and so emotional, and that's what makes these so scary, too, because those are the ones that can go off. To tie it right back into your town hall example, that's more likely what you're going to have at one of those things, where it's not someone coming in to shoot up the town hall because of a terrorist attack. It's, "No, you slept with my wife, I'm going to kill you," and then in the melee, I end up killing two other people and maybe myself in that situation. That's the most likely thing. That's more likely than someone's going to park a vehicle-borne improvised explosive device outside the meeting.

Right.

And those things we don't ever think about, because that's the insider threat. That person, that doctor in your situation, is the one who brought that guy to that place by his actions outside of work or his actions outside in some other context, brought that upon the community.

Right. Like I said, why did we bring it up? You're spot on. We brought it up because we sometimes operate in a security arena, and if you're a security director, or if you're a security guard, or if you're just a person that's attending one of these venues, you have to understand what the security posture is. If the security posture is nonexistent or low, you may invite an opportunity for that type of violence to occur.

So, when you're sitting there, the things that Brian and I would caution you to think about is that your cyber threat is real. So, go get a subject matter (expert) to handle that. That's not this case, but it's worth talking about. This case had nothing to do with Billy Counterman ever physically touching Coles Whalen. Yet, how the manner of alleged threats were delivered is huge. So, consider that.

The great thing, Brian, just like we tell everybody to go do a ride-along because they're free and any agency would be glad to have you, you can go sit in on trials. Unless the trial for some reason, whether it's a bench or a jury trial, unless there's some reason to exclude humans from it (like) the age of the offender or an undercover cop testifying, you can go and sit in a courtroom and take notes and listen and be wowed by the legal system.

So, your security assessment and your priorities have to be thus: you have to prioritize what you really need protection of. Then you have to identify the gaps in that security process. Then train and implement stuff to do it. So, the idea is, part of that is you're going to go to the cop shop, and the cop is going to sit there and listen the first few minutes of what you're saying and then say, "Yeah, it's not our jurisdiction," or "That's a civil matter." Those are two things you're going to hear from every cop that you walk up and talk to, Brian. If you walk away at that point, you're making a mistake. Ask for the supervisor. A shift supervisor comes out and says, "Hey, your officer says that it's not jurisdiction, but I have to have help because Billy Counterman is on my posterior all the time, metaphorically, and I'm Coles Whalen, and I can't be bouncing around Colorado worrying about this guy." Then that shift supervisor said, "Lady, sounds like a civil problem. You go right across the street to the city attorney's office and go, 'What's going on here? I need protection. I'm asking for protection. Local cops aren't giving it.'" You see what I'm saying, Brian?

Procedurally, in the security realm, you have to think about securing and filling those gaps and defenses. But when you're on the offensive, because you're the victim, you have to go, "I'm not walking out of this office with the right answer. Do I need to get an attorney? Why would I have to retain an attorney to get Billy Counterman to stop what he's doing to me?" You see what I'm saying? And you got to stick with it, because I'll tell you what, a lot of times the law enforcement and the courts aren't on your side unless you become the squeaky wheel. Why? Because it doesn't feel like a crime. And that's why we have to classify "true threats," isn't it? Because threatening behavior of this manner doesn't feel like a real crime. It'd be different if he slapped her. It'd be different if he made it, I think, a bomb. You see how we think as humans?

Well, that's the thing. It's because it's a subjective nature. There's nothing subjective about one person hitting another person. Anyone sees that and goes, "Okay, yeah, I got it. That's a crime. You can't do that." That's very... it's simple and it's easy to see, and everyone knows. But because there's some complexity in this with that subjective nature of these things, "Wow, look, you're kind of a popular singer, you're on social media all the time, you got to expect this stuff is going to happen." It's like, "No, like, yes, well, I'm going to, but that doesn't make it okay, or that doesn't change the dynamics." Precisely.

And that's the issue that you see with a lot of these cases, especially the different stalking cases, different types of harassment stuff, because it's a seemingly gray area, or it's seemingly subjective in nature. Some people don't take it as seriously, or they don't think it's that big.

I agree.

And that happens. And then, like you said, you even brought it up, too, is there some people that, "You know, a loud noise startles me and forces me to stay inside my house for a week, so of course I'm feeling threatened when it's just the mailman showing up, literally dropping off my mail."

Right.

You have to put all that into place and go, "All right, well, what in this context, what is this person feeling? What are they saying? What are they doing? What is the effect it has? What is the intended effect, and what is the actual effect, and what is the feeling of that? Like, what is the subjective effect?"

You nailed something exactly.

I'll give you a companion caper for everybody that listens to us. If you're on this long, you know what we're talking about, and you're interested. So, New York recently sued Hyundai because their cars are too easy to steal.

Yeah.

So, New York... this is a lens. This is the type of lens that we should ask the people that listen to our show to look through, because you don't deserve the type of behavior that's being bestowed upon you by another, and there should be a reasonable expectation in your life that you're not preyed upon or stalked. This is a perfect case to show that. And, you know, Brian, I think it's important again to remember, everybody, that what Brian said at the beginning is they're revisiting this question because the court has never spoken directly about this definition of threat behavior. That's why it's so important to us.

So good. Like, right now, everybody's going, "Oh, we should do away with the Supreme Court." Well, there you go, you might as well move to the worst place in the world, give up all your rights. I love the "let's tear it all down" crowd. Yeah, where she goes, "But I feel really strongly about it in my heart, so that's true and that's science." And I always laugh because it's wonderful, because that's why we caution people when we go into opinion-based testimony. "Yeah, you know, I'm just giving you my take on events." Then we're not doing the three series.

That your New York Hyundai case is a perfect, perfect example how completely stupid we are sometimes. And I mean, really, that's absolutely insane. So, it's one thing if you make a car that explodes when it gets in a car accident, yeah, you could go after that car company. They're putting people in danger. But, "Hey, your car is too easy to steal, and that's your fault!" What in the world does that even mean?

So then Sean Clemens would say, as Sean Clemens, our consigliere, Brian, then, "Let's sue TikTok, Instagram, and YouTube for putting out there when the people do steal those cars and do the donuts and everything. Well, you're advertising that, so clearly you're fomenting the theft, so we're going to sue you next!" What? Where are we going?

I'll press charges on this guy who broke into my home and stole all my stuff, and then him going, "No, I think it's your... this guy's house is just too easy to rob from, and it said 'Welcome' on the welcome mat right there." "It says 'Welcome' on the mat, so why have the mat?"

So, you know, it kind of rolled up like a big joint. Now, if they want to go, "All right, this is a problem, we need to write federal legislation that requires automakers to meet a certain standard going forward," or something, that makes sense. They can do that. And it's literally, it's concern who does that? That's (up to) Congress. But that's in our best interests of the citizens of the United States to say, "Well, you need to meet this certain standard because this is a growing problem." That makes sense. It's just you didn't say your car...

Why do we love NTSB (National Transportation Safety Board), Brian? It's ridiculous. Why do we love NTSB? Because they're prudent. They take time, and they come out with good rulings. So, we go to NTSB and we go, "The seats aren't big enough on airplanes," and we're not talking comfort, we're talking physiology and psychology, and sooner or later, sociology on a plane is going to get somebody killed. That's been our argument for a couple of years now. The raised, elevated tensions. Now, the airline industry has countered that in a minute: the second that there's a threat, they land the plane and they let the people off the plane, come on and handle it. Right? So, that's a mitigation strategy, but it's not going to work long-term, Brian. No, because what's going to happen is the seats are going to get smaller, the tensions are going to get higher, and finally somebody's going to go, "You're ruining my flight to England, so I'm going to beat you." And that beating, or the fall that's... it's going to result in the person... the person stepping in to try and help is going to end up killing someone. So, that's how the law works slowly to get us there, where the NTSB would come up and go, "If you don't change the size of these seats, there's going to be an incident." You see? So, we love that proactive, predictive nature of NTSB and how they look at these things and how they're going to happen, rather than where you have to establish law and allow us to be broken to go back and charge something.

Because they're one of the few investigatory bodies that say, "Okay, here's everything that happened, here's all of the contributing factors, so here's what you need to address going forward. This is what needs to be changed. You have to change this flight training for this specific aircraft because we know this happens. We have to replace this part. You can no longer do that. There's going to be an additional inspection." So, they're almost writing the... "Here's the suggestions for the policies going forward." That's what the air industry is, where it's so safe, but it's so potentially dangerous, because every time something happens, a lot of people die. They immediately have to adopt that, and then that's it. But we don't do that with a lot of other investigations. It's just, "Well, here's what happened." It's like, "Okay, okay, but then what? While we know what happened, it's like, okay, but..." Okay, we need to take a book from NTSB when we're addressing corporate security, workplace violence, school shootings, any police officers.

Exactly. If you took the NTSB approach, this would be a little bit more... I think people understand it a little bit better, because what do they do? They say, "These are all... yeah, this person made a bad decision here, but they were trained to make these three decisions, and that's the problem. So, it's not so much them, it's the training, and we have to take the onus off to look." Flying is inherently dangerous. Why? It's called gravity. You see what I'm trying to say? So, what we have to do is we have to look at police. Look, police carry guns on the outside of their uniform, on their belt. Why? Because it's a dangerous task, and sometimes cops with those bullets are going to shoot people. So, we got to stop saying that every time there's an officer-involved shooting that it's a bad thing. What we got to do is we got to take a look at it, and we have to say, "Here's the things that made this a clean, legal shooting." Do you get what I'm saying? And then notify humans so humans can look at it and judge it at face value. What is our judgment criteria? Now, the age of the offender, the number of shots, the time it took... so, Brian, that's why I love NTSB too, because they give us a clear pattern, a clear timeline of events. They say, "It's this hexagonal bolt at this time that failed, and that caused this reaction." That's the kind of thinking that we got to do. Science will get us out of any problem that we're in. Science, not all the rhetoric that we're seeing. And this is a perfect example, and that's why I'm so excited to see, because Colorado did a great job of framing it.

Now, I want to read that remark again, because I think that's such a good one: "The psychological effects of threatening behavior are frequently worse than the actual assault." In this case, that perfectly epitomizes why we have to go after Billy Counterman, and I don't mean him personally, I mean everything.

Yeah, everyone, on the face of the planet. Yeah, absolutely. Okay, well, I think that's kind of a good place to sort of end on.

Yeah, again, oh my God, what a big discussion though. I'll put all the links in the episode details. Go to the Oyez (O-Y-E-Z, a website for Supreme Court audio and transcripts) website for any Supreme Court stuff you're looking at. They do such a good job. They give you all the stuff of the case right upfront to look at, and then you can listen to the arguments. They've had arguments already. Now, because of all the AI, you can get little transcripts, you can highlight, cut, clip, and all that stuff out, so it's really, really cool. If you haven't listened to an argument, or if you haven't listened to the argument in front of the Supreme Court, it's great, incredible, it's interesting, it's sort of clinical. When they reference past cases, which is what you have to do in these, you have to have the precedent, they give this very bullet-point view of it, so it's not this long rhetorical story. It's, "Here's why I think this falls under here, here's what that means." And then the Justice might step in, "But wait a minute, in that case, that was the side of this. How does that apply to this case?" So, they really do a cool job, geek, because then you can go back and look at all those and what they thought, but they're just so super interesting to listen to. I mean, if you're a nerd like we are.

We could hook up. Exactly.

We're law nerds because that stuff is so interesting how it plays out, and you hear some great arguments.

All right, well, that's probably another podcast that's talking about gallbladders and medicine. That ain't us.

I mean, when it comes... yeah, some guy's sitting there holding up a ventricle of the heart and everybody going, "Ooh" and "Ah," that's all cool stuff. But I'm telling you, the law is where it's at, folks!

All right, well, on that note, check out our Patreon site where we do talk about gallbladders. Yeah, so we're going to get into some good ones on that. We've had some other cases on there and some personal stuff that we do on the Patreon side. Just to check out, you can actually sign up there now for a few days for free to check it out and then decide if you want to. That's a new thing that they have on there, which is cool. But yeah, so you can hop on there, check out the other stuff that we do. We get into some of our personal stories more, and with some photos, or we talk about other cases in depth that we don't want to on here because we got to keep the chuds out of the comments as much as we can. Although, most of the comment-actually-type people, those chuds, they're not going to listen to a podcast like this because there's too much going on, and that would require them to come up with some sort of ammo to be a sniper. So, yeah, but thanks to those who've reached out. Continue reaching out, please. Please, leftofthegreg@gmail.com, and don't forget that training changes behavior.