Phil Luciano: When is a threat not a threat?

Phil Luciano

How would you feel if someone threatened to kick you in the rear end?

I don’t mean playfully. Say it was said in frustration or anger. And by a cop. In uniform.

You’d likely feel intimidated. But that’s just silly, says Illinois’ court system. That’s evident in the peculiar case of Michael Walters.

In 2005, he was the police chief of Wenona, a town of about 1,000 residents 35 miles northwest of Peoria. One night, he and the city’s administrator went to the home of Nancy Salz, a city council member.

She believed a part-time cop on Walters’ force had been convicted of a crime in Woodford County. She’d shared court documents with the council.

At her door, the administrator and Walters — in uniform and with his squad car parked on the street — began to talk about her concerns. Walters blurted, “Nancy, if you ever try to humiliate me again, I’ll shove my boot up your (expletive) so far you’ll walk bow-legged for the rest of your life.”

Salz asked if Walters was threatening her. No reply. She asked the administrator if he’d heard the remark. No reply. So she shut the door.

Neither man disputed those facts after Walters was charged in Marshall County Circuit Court with intimidation, a felony punishable by up to five years in prison. But at trial he said he hadn’t tried to intimidate Salz. Rather, he said, she’d criticized him at prior council meetings, so he felt “frustrated ... because I thought she was picking on me.”

Judge Stuart Borden didn’t buy it, saying, “There’s no question in my mind that what he communicated to Mrs. Salz was a threat.” Guilty.

At sentencing, Walters said he was “truly sorry.” He got two years probation and lost his police certification. But he recently found an ally with the Third District Appellate Court in Ottawa. A three-justice panel unanimously threw out his conviction.

Its curious logic was laid out in an opinion by Justice Vicki R. Wright. She called Walters’ words “childish, rude and unprofessional” — but not legally intimidating. The key part of the law states, “A person commits intimidation when, with intent to cause another to perform or to omit the performance of any act, he communicates to another ... a threat to ... inflict physical harm.”

Or, as the appeals court put it, “The state is not required to show that defendant would place his foot where promised, but only that his declaration of an intent to do so would cause her to believe that he was serious about inflicting physical harm if she was not silent during the next public meeting.”

Indeed, she did not mention the matter at the next meeting. So, you might wonder, how does a boot-up-the-butt warning not indicate intimidation?

The court said, “Granted, the vernacular expression could be viewed as offensive to most and perhaps even intimidating to some.” Still, the court pointed the finger of guilt away from Walters and toward Salz. It said that by her asking Walters if he’d made a threat, she was “escalating and attempting to fuel the heated discussion.”

In other words, just by questioning Walters’ intent, she’d become the bad guy. Crazy.

As Marshall County State’s Attorney Paul Baurer put it, “If you’re intimidated, are you supposed to cower to make an actionable offense?”

Justice Wright did not respond to my request to discuss the case. I don’t blame her. No explanation would ever seem sensible to the average person.

Justice is supposed to be blind. Not mindless.

Phil Luciano can be reached or (309) 686-3155.