Limiting Counterman’s Recklessness Requirement to True-Threats Stalking Charges

Introduction

In In Re The People of the State of Colorado v. David Samuel Crawford (2025 CO 22), the Colorado Supreme Court addressed whether the U.S. Supreme Court’s decision in Counterman v. Colorado (600 U.S. 66 (2023))—which imposed a recklessness mens rea requirement for “true-threats” stalking prosecutions—should extend to stalking charges based solely on a course of repeated conduct and contacts, irrespective of the content of communications.

Parties & Court Below
Plaintiff: The People of the State of Colorado
Defendant: David Samuel Crawford
Trial Court: Jefferson County District Court (Case No. 23CR1098; Judge Diego Hunt)
Appellate Court: Supreme Court of Colorado, En Banc

Key Issue
Does Counterman require proof of a reckless mens rea in stalking prosecutions based on repeated approaches, surveillance, or communications where the content of the messages is not the basis of the charge?

Summary of the Judgment

The Colorado Supreme Court exercised its original jurisdiction under C.A.R. 21 to resolve a split among Colorado trial courts and divisions of the Court of Appeals. It held that:

• Counterman applies only to stalking prosecutions premised on the threatening content of communications (true threats).
• Stalking charges under § 18-3-602(1)(c) based on a repeated course of contact or surveillance (texts, calls, emails, visits) do not require proof that the defendant acted with a reckless mens rea.
• The district court’s extension of the recklessness requirement to content-neutral stalking charges was therefore reversed, and the case was remanded for further proceedings.

Analysis

1. Precedents Cited

Counterman v. Colorado, 600 U.S. 66 (2023)

Established that a true-threats stalking prosecution under Colorado law must include proof that the defendant recklessly disregarded a substantial risk that his communications would be viewed as threats. True threats lie outside First Amendment protection, but to avoid chilling protected speech, recklessness is the minimum mens rea.

Virginia v. Black, 538 U.S. 343 (2003)

Defined “true threats” as serious expressions of intent to commit violence, unprotected by the First Amendment.

Voisine v. United States, 579 U.S. 686 (2016)

Clarified that recklessness suffices as a mens rea for certain violent-felony offenses; used by Counterman to articulate the recklessness standard.

People v. Trujillo, 2025 COA 22 & People v. Morris, 2025 COA 15

Two Colorado Court of Appeals decisions holding that Counterman does not apply to non-content‐based stalking charges.

State v. Labbe, 314 A.3d 162 (Me. 2024)

Maine’s high court refused to extend Counterman beyond true threats, distinguishing repeated contact prosecutions.

Corrigan v. State, No. A23-1942, 2024 WL 3493348 (Minn. Ct. App. July 22, 2024)

Minnesota appellate decision holding that Counterman does not apply to conduct-based stalking convictions.

2. Legal Reasoning

a. Content-Based vs. Conduct-Based Stalking
Colorado’s stalking statute, § 18-3-602(1)(c), criminalizes a repeated course of conduct—“follows, approaches, contacts, places under surveillance, or makes any form of communication”—that causes serious emotional distress. Counterman focused solely on prosecutions “based solely on … repeated communication[s]” in which the content conveyed a true threat.

b. First Amendment Implications
True-threats speech is unprotected, but because content-based prohibitions risk chilling lawful expression, the U.S. Supreme Court imposed a recklessness mens rea requirement. By contrast, purely conduct-based prosecutions—where speech content is not an element— raise far fewer First Amendment concerns.

c. Scope of Counterman
The Colorado Supreme Court emphasized that Counterman itself limited its holding to “true-threats cases.” Extending that recklessness standard to every instance of “any use of communications” would extend First Amendment safeguards beyond the niche it was designed to protect.

d. Original Jurisdiction & Remedy
Because a prosecution under § 18-3-602(1)(c) that fails to prove content-based threats but is held to a recklessness standard would risk unwarranted chilling effects and leave the People without an appellate remedy (double jeopardy concerns), the Supreme Court exercised original jurisdiction under C.A.R. 21, made the order to show cause absolute, and reversed the district court’s recklessness requirement.

3. Impact

• Clarity for Trial Courts and Parties: Trial judges need not instruct juries to find recklessness in everyday stalking prosecutions based on repeated contacts or surveillance.
• Model Jury Instructions: Colorado’s model instruction COLJI-Crim 3-6:04.5.SP should be revised to make clear that the recklessness mens rea applies only when the content of communications is an element of the charge.
• Future Cases: Defendants cannot dodge liability for non-threatening, persistent stalking conduct by invoking Counterman. Conversely, prosecutions of true threats remain subject to the higher First Amendment scrutiny and mens rea protections articulated in Counterman.

Complex Concepts Simplified

• True Threats: Statements where the speaker means to threaten violence—e.g., “I’m going to harm you”—unprotected by the First Amendment.
• Recklessness Mens Rea: The defendant must consciously disregard a substantial and unjustifiable risk that his words would be seen as threatening; less demanding than intent but more than negligence.
• Content-Based vs. Content-Neutral Laws: Content-based laws regulate what is said; content-neutral laws regulate conduct (e.g., the frequency or manner of contact), regardless of what is said.
• Original Jurisdiction under C.A.R. 21: An “extraordinary” remedy allowing the Colorado Supreme Court to correct an issue of first impression or resolve conflicting lower-court decisions when no adequate appeal exists.

Conclusion

The Colorado Supreme Court’s decision in People v. Crawford preserves the narrowness of the Counterman ruling and prevents its recklessness mens rea requirement from being shoe-horned into all stalking cases involving communications. By drawing a clear line between content-based true-threat prosecutions and content-neutral, conduct-based stalking charges, the Court upheld First Amendment principles without unduly hampering the State’s ability to prosecute genuinely harassing or threatening conduct.

Going forward, prosecutors and defense counsel in Colorado must distinguish between: (a) stalking charges rooted in threatening speech content—where recklessness remains a constitutional prerequisite—and (b) stalking charges premised on a repeated course of conduct or contact—where the statute’s plain elements suffice, without proof of subjective recklessness.