Town of Brookfield v. Martin M. Gonzalez

COURT OF APPEALS
DECISION NOTICE
DATED AND FILED This opinion is subject to further editing. If
published, the official version will appear in
the bound volume of the Official Reports.
October 27, 2021
A party may file with the Supreme Court a
Sheila T. Reiff petition to review an adverse decision by the
Clerk of Court of Appeals Court of Appeals. See WIS. STAT. § 808.10
and RULE 809.62.

Appeal No. 2021AP218 Cir. Ct. No. 2018CV2074

STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT II

TOWN OF BROOKFIELD,

PLAINTIFF-RESPONDENT,

V.

MARTIN M. GONZALEZ,

DEFENDANT-APPELLANT.

APPEAL from a judgment of the circuit court for Waukesha County:
LAURA F. LAU, Judge. Reversed and cause remanded with directions.

¶1 GUNDRUM, P.J.1 Martin M. Gonzalez appeals the circuit court’s
judgment convicting him of municipal disorderly conduct following a jury trial.

1
This appeal is decided by one judge pursuant to WIS. STAT. § 752.31(2)(b) (2019-20).
All references to the Wisconsin Statutes are to the 2019-20 version unless otherwise noted.
No. 2021AP218

He contends he was unconstitutionally convicted for social media posts he made,
claiming those posts did not constitute a “true threat” and thus are protected by the
First Amendment. We agree with Gonzalez and reverse and remand to the circuit
court to vacate his conviction.

Background

¶2 The relevant testimony from the jury trial is as follows.

¶3 On January 2, 2018, Gonzalez had approximately 300 followers on
his social media accounts. That evening, he posted a series of photos to his
Instagram story. The first photo showed a ticket to the 10:00 p.m. showing of
“Jumanji” at “Majestic of Brookfield” and included the statement “[h]ave to wait
till 10” with a smiley-face emoji. The second photo, which the photo itself and
trial testimony indicate was posted to Instagram shortly after the first photo,
included numerous loose bullets and a hand holding a loaded magazine. The third
photo on Gonzalez’s Instagram story was of the inside of a darkened movie
theater.

¶4 Garrett Bartelt, an acquaintance of Gonzalez’s from their youth,
happened to be at the same 10:00 p.m. showing of Jumanji at the Majestic
Cinema. According to Bartelt’s testimony, shortly before the start of the movie,
by “happenstance”/“randomly,” he “managed to come across” Gonzalez’s
Instagram story and saw these three photos. He added that the backs of his head
and his friends’ heads were visible in the third photo, but he acknowledged that he
had no idea Gonzalez was going to be in the theater that night, that Gonzalez
would not have known that he (Bartelt) was going to be in the theater that night,
and that Gonzalez would not have been “directing” these social media posts at
him.

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¶5 Bartelt then went to Gonzalez’s Snapchat account and observed
there a photo that included a hand holding a handgun, with a loaded magazine
nearby. This Snapchat photo was posted around the same time as the Instagram
photos of the movie ticket and the loaded magazine and loose bullets.

¶6 When Bartelt saw these photos, he was “troubled,” adding “[t]he fact
that you could see my friends and I in the very last picture obviously was quite
jarring …. [M]y friends and I were worried about our safety and the safety of
those around us.” Bartelt showed the photos to a friend sitting with him who
“didn’t have much of a reaction verbally,” but, according to Bartelt, “was quite
scared as well” upon seeing them. Bartelt and his friends left the theater and
informed a security guard at Majestic Cinema of their concerns because “on the
off chance that something actually does happen, there is a disturbance or violence
that occurs and we had prior knowledge about being able to leave …. I would feel
horrendous if something were to have happened [to others at the theater] and they
didn’t have that prior knowledge.” Bartelt further testified that based on what he
had seen on Gonzalez’s stories, he thought “there was a chance there would be” a
shooting in the theater that evening.

¶7 Majestic Cinema personnel contacted the police, who responded and
executed a plan to detain Gonzalez, which included having the lights turned on
and the movie turned off in the theater as officers, armed with shields and drawn
guns, approached Gonzalez and ultimately handcuffed and detained him and a
friend with him. One of the officers testified that Gonzalez had a look of surprise
on his face. The police searched Gonzalez and his friend but found no weapons.

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No. 2021AP218

¶8 As indicated, Gonzalez was ultimately charged by the Town with a
municipal violation of disorderly conduct. Following his conviction by a jury, he
now appeals.

Discussion

¶9 Gonzalez challenges the constitutionality of the disorderly conduct
statute, WIS. STAT. § 947.01, and related municipal ordinance as applied to him in
this case. He and the Town both boil down the primary question on appeal to
whether his social media posts constituted a “true threat,” as that term is
understood in Wisconsin law, and thus are not entitled to the First Amendment
protection they otherwise would have.2 Gonzalez insists his posts did not
constitute a true threat, and thus he could not be convicted for posting them. We
agree.

¶10 Whether a statute has been unconstitutionally applied is a question
of law we review de novo. State v. Pocian, 2012 WI App 58, ¶6, 341 Wis. 2d
380, 814 N.W.2d 894.

¶11 “[S]tates cannot enact general laws prohibiting all ‘threats’ without
infringing on some speech protected by the First Amendment.” State v. Douglas
D., 2001 WI 47, ¶31, 243 Wis. 2d 204, 626 N.W.2d 725. States may, however,
“consistent with the First Amendment, prohibit all ‘true threats.’” Id. “True
threat” “is a constitutional term of art used to describe a specific category of
unprotected speech.” Id.

2
The Town appears to concede on appeal that Gonzalez’s posts constituted speech
protected by the First Amendment if the posts do not constitute a “true threat” under controlling
case law.

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No. 2021AP218

¶12 While “[t]he question of whether particular conduct constitutes a
true threat is an issue of fact, typically best left for the finder of fact, ... if the
conduct unquestionably is protected by the First Amendment, a court may dismiss
the charge as a matter of law.” Id., ¶33. As our supreme court has defined it, a
true threat is a statement that

in light of all the surrounding circumstances, a speaker
would reasonably foresee that a listener would reasonably
interpret as a serious expression of a purpose to inflict
harm, as distinguished from hyperbole, jest, innocuous talk,
expressions of political views, or other similarly protected
speech. It is not necessary that the speaker have the ability
to carry out the threat.

Id., ¶34 (footnote omitted; quoting State v. Perkins, 2001 WI 46, ¶29, 243 Wis. 2d
141, 626 N.W.2d 762). The Douglas D. court added that “[s]ome factors that
courts and juries should consider when applying this test include, but are not
limited to:

how the recipient and other listeners reacted to the alleged
threat, whether the threat was conditional, whether [the
threat] was communicated directly to its victim, whether
the maker of the threat had made similar statements to the
victim on other occasions, and whether the victim had
reason to believe that the maker of the threat had a
propensity to engage in violence.”

Id. (footnote omitted; citation omitted).3 Applying these factors compels us to the
conclusion that Gonzalez’s posts did not constitute a true threat.

3
In this case, the fact finder was a jury. Because Gonzalez did not raise before the
circuit court, or us, an issue with regard to the adequacy of the jury instructions, our decision is
not based on a consideration of those instructions. That said, it is more difficult for a court on
review to defer to a jury’s determination as to whether particular conduct constitutes a true threat
where the instructions presented to the jury are in question. Here, in regard to whether
Gonzalez’s posts constituted a true threat and thus are not protected by the First Amendment, the
circuit court instructed the jury:

(continued)

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No. 2021AP218

A threat is an expression of intention to do harm and may be
communicated orally, in writing, or by conduct. This requires a
true threat. True threat means that a reasonable person making
the threat would foresee that a reasonable person would interpret
the threat as a serious expression of intent to do harm. It is not
necessary that the person making the threat have the ability to
carry out the threat. You must consider all the circumstances in
determining whether a threat is a true threat.

(Emphasis added.)

On its face, this instruction raises questions. First, State v. Perkins, 2001 WI 46, ¶29,
243 Wis. 2d 141, 626 N.W.2d 762, and related cases state that the question is whether “a speaker
would reasonably foresee that a listener would reasonably interpret [the challenged speech] as a
serious expression of a purpose to inflict harm, as distinguished from hyperbole, jest, innocuous
talk, expressions of political views, or other similarly protected speech.” (Emphasis added.) It
cannot be assumed that jurors would interpret “a serious expression of intent to do harm,” as the
circuit court here instructed the jury, as being the same as “a serious expression of a purpose to
inflict harm,” which is the actual language Perkins directs. See id. (emphasis added); see also
State v. Mitchell, 169 Wis. 2d 153, 167 n.11, 485 N.W.2d 807 (1992), rev’d sub nom. Wisconsin
v. Mitchell, 508 U.S. 476 (1993) (recognizing that although “‘[m]otive,’ ‘intent,’ and ‘purpose’
are related concepts in that they all refer to thought processes[,] [t]hey are legally distinct in
crucial respects.” (citation omitted)); compare Purpose, BLACK’S LAW DICTIONARY (10th ed.
2014) (defining “purpose” as “[a]n objective, goal, or end; specif., the business activity that a
corporation is chartered to engage in”), with Intent, BLACK’S LAW DICTIONARY (10th ed. 2014)
(defining “intent” as “[t]he state of mind accompanying an act, esp. a forbidden act” and “general
intent” as “[t]he intent to perform an act even though the actor does not desire the consequences
that result”).

Second, the instruction does not inform the jury that it must actually find that Gonzalez’s
posts constituted a true threat in order to find him guilty of disorderly conduct. Lastly, the
instruction completely omits the factors that our supreme has stated a jury “should consider”
when determining whether speech, such as Gonzalez’s posts, constitute a true threat—those being

how the recipient and other listeners reacted to the alleged threat,
whether the threat was conditional, whether it was
communicated directly to its victim, whether the maker of the
threat had made similar statements to the victim on other
occasions, and whether the victim had reason to believe that the
maker of the threat had a propensity to engage in violence.

Perkins, 243 Wis. 2d 141, ¶31 (citation omitted). For these reasons, one would be hard-pressed
to conclude that the jury actually made a finding consistent with Perkins and related cases that
Gonzalez’s speech constituted a true threat.

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No. 2021AP218

¶13 As to the first factor, we agree that Bartelt reacted to the posts with
alarm and concern for his safety and that of his friends and other moviegoers.
When shown all the posts together, others who viewed them also believed there to
be reason to take action and ultimately detain Gonzalez. We note, however, that
there was no evidence presented that the posts raised any sense of alarm in any of
Gonzalez’s 299 other social media followers, and we have no reason to believe
that if Bartelt had been fifteen miles away at a Bucks game when he viewed the
posts that night—instead of coincidentally being in the same theater as
Gonzalez—that it would have raised any sense of alarm or caused him to take any
action at all.4 Indeed, we suspect it unlikely that except for the extreme
coincidence that Bartelt happened to be at the same showing of Jumanji as
Gonzalez that evening and by “happenstance” checked Gonzalez’s Instagram story
and then Gonzalez’s Snapchat—a completely separate social media platform from
Instagram—and observed the post of a handgun with a loaded magazine nearby,
that anything would ever have come from these posts.

4
The Town claims Gonzalez’s “conduct is not protected by the First Amendment”
because it was the equivalent of “falsely shouting fire in a theater and causing a panic.” See
Schenck v. United States, 249 U.S. 47, 52 (1919) (“The most stringent protection of free speech
would not protect a man in falsely shouting fire in a theatre and causing a panic.”). We see
significant differences. In the circumstance of a person yelling “fire” in a theater, it is not only
reasonably foreseeable, but indeed quite likely, that doing so would cause an immediate stampede
for the exits resulting in injury or loss of life to one or more persons. In this case, there is no
evidence suggesting that Gonzalez had any reason to believe that even one of his 300 social
media followers would not only see his posts on both Instagram and Snapchat around the time of
this movie, but would also just happen to be in the theater at that time for the same showing.
Certainly no reasonable person in Gonzalez’s position would have had reason to believe multiple
people in the theater might see the posts and create a stampede for the exits (which obviously did
not happen in this case). We note that as opposed to the immediate reaction of yelling “fire” in a
theater, in this case Gonzalez’s final post was posted and viewed by Bartelt more than an hour
before the police even arrived inside the theater to detain Gonzalez.

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No. 2021AP218

¶14 As to the factor examining “whether the threat was conditional,” it
really has limited, if any, bearing on this case as no words were used at all that
could create a conditional-threat situation.

¶15 We also consider whether “[the threat] was communicated directly
to its victim.” Douglas D., 243 Wis. 2d 204, ¶34 (citation omitted). We note that
if the posts here amounted to a threat at all, the “victim” of the threat would have
been anybody who happened to be at the 10:00 p.m. showing of Jumanji at the
Majestic Cinema that night. The evidence established that Bartelt had no idea
Gonzalez was planning to be at the theater that night and Gonzalez would have
had no reason to believe that Bartelt would be present at that showing of Jumanji.
There was no evidence presented that Gonzalez’s posts were directed at Bartelt or
that Gonzalez would have had any idea that Bartelt or anyone else who might
happen to be in the theater that night might also view his posts. Gonzalez’s
“threat” was not communicated directly to any “victim.”

¶16 As to whether Gonzalez “had made similar [posts] to the victim on
other occasions,” there is no evidence to suggest Gonzalez ever made similar posts
of weapons or ammunition at other times and certainly no evidence suggesting he
made any sort of threats to anyone at any other time, much less to any of the
potential viewers of this particular showing of Jumanji.

¶17 Related to the last specific factor to be considered, the Town
provided no evidence that Bartelt or anyone else “had reason to believe that
[Gonzalez] had a propensity to engage in violence.” See id. Indeed, there also
was no evidence suggesting that Gonzalez was angry or disturbed in any way or
had any motive or tendency to harm anyone, much less shoot up a movie theater
full of innocent strangers. Bartelt provided no evidence from his past

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No. 2021AP218

acquaintance with Gonzalez to suggest Gonzalez might even be psychologically
capable of mass murder.

¶18 While we can only speculate as to why Gonzalez chose to post the
photos he did when he did, it is equally hard to imagine why, if Gonzalez was
really intending to truly threaten a mass shooting at that Jumanji showing, he
would have posted the handgun photo to Snapchat instead of including it with the
other photos on his Instagram story. By posting it to Snapchat, any potential
“threat” is much more vague, questionable, and ambiguous, as is whether he was
trying to convey a threat at all. Would a person in Gonzalez’s position have
reasonably foreseen that one of his 300 social media followers would not only be
at the same showing of Jumanji but would also view his stories—on both
Instagram and Snapchat—prior to the conclusion of the movie and also reasonably
interpret the posts “as a serious expression of a purpose to inflict harm” as
opposed to something “innocuous” or posted in “jest,” albeit very tasteless jest?
See id. (citation omitted). As Gonzalez states in his brief-in-chief on appeal, “[a]n
objective speaker in Gonzalez’s shoes would be hard pressed to realize his posts
on different app platforms would be put together into one vaguely or impliedly
threatening narrative.” We note the Town’s own suggestion before the circuit
court, discussing whether Gonzalez’s posts represented a true threat, that the
“sequence of photos” may have been just “an unfortunate set of circumstances or
negligen[ce] or irresponsib[ility].” While the Town does assert in its appellate
briefing that the photos Gonzalez posted “created the risk of imminent public
disorder,” it also states that “the posts that Gonzalez made on his social media may
not have been inherently threatening.”

¶19 For the foregoing reasons, we conclude that Gonzalez’s posts did not
constitute a true threat. As a result, they retained the protection of the First

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Amendment. We reverse and remand this case to the circuit court with
instructions to vacate the conviction and enter an order dismissing the case with
prejudice.5

By the Court.—Judgment reversed and cause remanded with
directions.

This opinion will not be published. See WIS. STAT.
RULE 809.23(1)(b)4.

5
The parties debate various other issues and arguments on appeal; however, because the
ground upon which we decide this case is dispositive, we need not address these other matters.
See Barrows v. American Fam. Ins. Co., 2014 WI App 11, ¶9, 352 Wis. 2d 436, 842 N.W.2d
508 (2013) (“An appellate court need not address every issue raised by the parties when one issue
is dispositive.”).

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