State of Washington v. Fast (2017)
by David S. Marshall
Military veteran Andrew Fast has won his appeal to the Washington State Court of Appeals. The King County Superior Court had convicted Mr. Fast of harassment–domestic violence after an incident at his family’s apartment complex. The Court of Appeals ruled that Mr. Fast’s First Amendment free speech rights were violated by the conviction because the State had not made an adequate showing that his statements during the incident amounted to a true threat against his wife. As a result, the appellate court overturned his harassment conviction.
The Fasts’ Difficult Marriage
Andrew and Andrea Fast were married in 2009 and had two daughters, but their marriage was plagued nearly from the start by Mr. Fast’s four deployments overseas, financial troubles, and a series of infidelities on both sides. Mr. Fast also suffered occasional bouts of mental illness and had threatened to commit suicide.
In the fall of 2014, Andrea began attending Shoreline Community College, where she met Reece Cabe. Andrea and Cabe began dating, even though the Fasts remained married. On February 1, 2015, Andrea and the children returned to the family’s apartment after spending the weekend with Cabe. Andrea told her husband that she and the girls had spent the weekend with her boyfriend. This conversation was calm, and the two went to bed normally when it was over.
A Troubled Mr. Fast Deals with the Breakdown of His Marriage
The next morning, Mr. Fast became very upset after one of his daughters lied to him (under the instruction of her mother) about where the family had spent the weekend. Emotional, he confronted Andrea about telling their children to lie to him about spending the weekend with her boyfriend.
Andrea left the apartment with the two girls. She then called a friend (another former boyfriend), Jacob Altinger, who lived in the same apartment complex. Andrea told Altinger she was leaving Mr. Fast; she asked Altinger to distract her husband at some later point so she could return to their apartment and pack for herself and the girls. Altinger testified that Andrea’s request did not strike him as urgent at the time.
When Andrea returned to the apartment later that day, she found her husband lying on the couch. The apartment was noticeably messier, and Mr. Fast had her journal and his pistol with him on the couch. Without pointing the pistol at his wife or threatening her, an upset Mr. Fast confronted Andrea while holding her journal.
Andrea ran to Altinger’s apartment (Mr. Fast did not follow her) to ask for his help in distracting Mr. Fast while she packed. He agreed, and Andrea returned to her apartment. Shortly thereafter, Mr. Fast knocked on Altinger’s door, still holding (but not pointing) the pistol and Andrea’s journal. Altinger knew the Fasts’ marriage was unhappy and had heard Mr. Fast threaten suicide before. He texted two other male friends to come to the apartment as “back up,” and they arrived a few minutes later.
While Andrea packed in the other apartment, the three men attempted to calm Mr. Fast, who was visibly upset while reading from Andrea’s journal, but not hostile or agitated. Altinger, however, was very tense. When Andrea texted to say she was leaving the apartment, Mr. Fast said he had to go and clean up. But Altinger refused to let him leave. The two shoved each other as Altinger attempted to block the door to the apartment.
Altinger then asked Mr. Fast how Altinger could know that Mr. Fast wouldn’t hurt his family after he left the apartment. Mr. Fast responded that Altinger did not and could not know, but never explicitly stated to Altinger that he planned to hurt Andrea or the children. Altinger let Mr. Fast go about twenty minutes later. He then reported his version of events to Andrea, who called the police claiming Mr. Fast’s statements to Altinger were implied threats against her life. Mr. Fast was arrested and convicted of harassment.
The State Failed to Prove Mr. Fast’s Words Were a True Threat
On appeal, Mr. Fast argued that the First Amendment protected his statement to Altinger that Altinger couldn’t know whether he would hurt anyone after leaving the apartment, because the statement did not constitute a “true threat.” To obtain a conviction for harassment under Washington law, the State must prove, among other things required by statute, that a “true threat” was made.
A true threat is “’a statement made in a context or under such circumstances where a reasonable person would foresee that the statement would be interpreted . . . as a serious expression of intention to inflict bodily harm upon or to take the life” of another person. While the First Amendment protects many kinds of speech, it does not protect true threats. The State argued on Mr. Fast’s appeal that a reasonable person would have interpreted his statement as a true threat against his family.
The Court of Appeals, however, agreed with Mr. Fast, finding that his statement was not a true threat under the First Amendment. Instead of being an actual threat of bodily harm, the court reasoned, Mr. Fast’s statement instead was meant to convey the lack of trust between him and Altinger (who, after all, previously had an affair with his wife). From Mr. Fast’s point of view, it was not foreseeable that Altinger would interpret a statement meant to communicate that lack of trust between the two men as an actual threat to seriously harm Andrea or the children. Therefore, the court reversed Mr. Fast’s conviction.