Non-Content-Based Stalking: Mens Rea Clarification in In Re People v. Crawford (2025 CO 22)

Introduction

In In Re The People of the State of Colorado v. David Samuel Crawford (2025 CO 22), the Colorado Supreme Court resolved a novel question under Colorado’s stalking statute: whether the U.S. Supreme Court’s decision in Counterman v. Colorado, which imposed a reckless mens rea requirement for prosecutions based on “true threats,” extends to stalking charges grounded solely in a repeated course of conduct rather than the content of communications. The People sought to criminally charge Mr. Crawford for stalking his ex-partner, A.L., based on repeated contacts (calls, texts, emails, surveillance, uninvited visits) that caused serious emotional distress. The district court, interpreting Counterman, required proof that Crawford acted recklessly—that he consciously disregarded a substantial risk that his repeated contacts would cause distress. The People invoked original jurisdiction under C.A.R. 21, arguing that no mens rea beyond the statute’s plain language is necessary when the basis of the stalking charge is conduct rather than speech content.

Summary of the Judgment

In a unanimous en banc decision delivered by Justice Hart, the Colorado Supreme Court held:

The recklessness mens rea established in Counterman applies only to “true-threats” prosecutions that rest on the threatening content of speech.
Stalking under § 18-3-602(1)(c) based on a repeated course of conduct (contacts, surveillance, approaches) without regard to the content of communications does not implicate the First Amendment’s true-threats exception.
No additional mens rea beyond the statute’s requirement—that the defendant acted knowingly or intentionally in a pattern of conduct that would cause serious emotional distress—is required for non-content-based stalking charges.
The district court’s order extending Counterman to content-neutral stalking was reversed, and the case was remanded for further proceedings consistent with this understanding.

Analysis

Precedents Cited

Counterman v. Colorado, 600 U.S. 66 (2023): Held that true-threats prosecutions based on speech content require proof of at least a reckless mens rea.
Texas v. Johnson, 491 U.S. 397 (1989): Established when conduct is “sufficiently imbued with elements of communication” to warrant First Amendment scrutiny.
Colorado cases applying original jurisdiction under C.A.R. 21: People v. Howell (2024 CO 42), Hagan v. Farmers Ins. Exch. (2015 CO 6).
Colorado court of appeals decisions distinguishing content-based and content-neutral stalking: People v. Trujillo (2025 COA 22), People v. Morris (2025 COA 15), Sharpe and Spiers orders from Chaffee and Jefferson Counties.
Out-of-state analogues: State v. Labbe, 314 A.3d 162 (Me. 2024); Corrigan v. State, No. A23-1942, 2024 WL 3493348 (Minn. Ct. App. July 22, 2024).

Legal Reasoning

The court’s reasoning hinges on distinguishing two types of stalking prosecutions under § 18-3-602(1)(c):

Content-Based (True-Threats) Prosecutions: When the State relies on the threatening content of messages (e.g., explicit threats of violence), the First Amendment’s “true-threats” exception applies. Under Counterman, the prosecution must prove that the defendant acted with at least reckless mens rea—con consciously disregarded a substantial and unjustifiable risk that his communications would be perceived as threats.
Content-Neutral (Course-of-Conduct) Prosecutions: Where stalking charges rest on repeated contacts, surveillance, approaches, or communications without reference to the messages’ substantive content, the State does not impermissibly regulate speech. Such conduct is evaluated under the statute’s plain mens rea—intentional or knowing repetition of actions that would cause serious emotional distress.

The court emphasized that extending Counterman to content-neutral cases would imperil countless prosecutions where communications are evidentiary rather than criminalized for their content. It rejected the district court’s application of intermediate First Amendment scrutiny, noting that stalking based on a victim’s “unwelcome intrusion” enjoys minimal protection and that Colorado’s statutory scheme addresses the grave harms of repeated unwanted contact.

Impact

This ruling clarifies the scope of Counterman in Colorado:

Prosecutors may continue to bring stalking charges based on repeated, unwanted conduct without proving recklessness as to the emotional impact of each contact.
Defense counsel must distinguish stalking prosecutions grounded in true-threat content (subject to Counterman) from those based on patterns of conduct (subject only to the statute’s mens rea).
Trial courts should revise standard jury instructions to apply the Counterman mens rea language only in “true-threat” cases. Content-neutral stalking charges proceed under existing statutory mens rea (knowingly/recklessly engaging in conduct causing distress).
Future appellate decisions in Colorado will rely on this precedent to maintain a clear boundary between First Amendment concerns and criminal liability for stalking conduct.

Complex Concepts Simplified

True Threats: Expressions conveying an intent to commit violence. Not protected by the First Amendment.
Reckless Mens Rea: A subjective state of mind where the defendant consciously disregards a substantial and unjustifiable risk.
Content-Based vs. Content-Neutral Regulation: Content-based regulation targets the substance of speech (e.g., banning specific words); content-neutral regulation targets conduct or manner without regard to message.
First Amendment Chilling Effect: The risk that broad criminal statutes deter lawful speech outside their intended scope. The Counterman mens rea requirement is designed to minimize that risk in true-threat cases.
C.A.R. 21 Original Jurisdiction: A mechanism allowing the Colorado Supreme Court to directly review a lower court decision when no adequate appellate remedy exists and the matter is of significant public importance.

Conclusion

In Re People v. Crawford reaffirms that the First Amendment’s true-threats doctrine—and the recklessness mens rea imposed by Counterman v. Colorado—applies only where a stalking prosecution is premised on the threatening content of speech. Stalking charges based on a defendant’s repeated, unwanted conduct, irrespective of message content, proceed under the statute’s ordinary mens rea requirements. This decision ensures that Colorado’s courts can continue to protect victims from persistent harassment and unwanted intrusion without conflating content-neutral criminal conduct with constitutionally protected expression.