State v. King (2025 ND 174): Clarifying the Dual “True Threat” Standard for Terrorizing and Cabining Overbreadth in As-Applied Challenges Under Obvious-Error Review

Introduction

In State v. King, 2025 ND 174, the North Dakota Supreme Court affirmed a terrorizing conviction and used the occasion to synthesize prior “true threat” jurisprudence under N.D.C.C. § 12.1-17-04. Writing for a unanimous Court, Justice Crothers emphasized two themes. First, when constitutional issues are not preserved below, the Court’s obvious-error review is narrow and anchored in separation-of-powers and constitutional-avoidance principles; the defendant must show a clear or obvious deviation from current law. Second, terrorizing prosecutions in North Dakota rest on a dual analytical framework: a subjective mens rea (intent to cause fear or reckless disregard of causing fear) coupled with an objective evaluation of the communication from the perspective of a reasonable person in the recipient’s position. The Court also explained why the overbreadth doctrine does not assist defendants mounting as-applied Second Amendment challenges.

The case arises from a late-night encounter at a Fargo gas station where Shawn King approached a woman on a bicycle, discarded the bike, produced a knife, and rapidly advanced toward her. The victim testified she was terrified. Surveillance video and officer testimony corroborated the incident. A jury convicted King of terrorizing (a Class C felony) and acquitted him of carrying a concealed weapon. On appeal, King asserted, for the first time, that the terrorizing statute was unconstitutionally vague and overbroad as applied, and that, together with North Dakota’s concealed carry statute (N.D.C.C. § 62.1-04-02), it infringed his right to lawfully carry a weapon.

Because these constitutional challenges were not raised in the district court, the Supreme Court reviewed for obvious error and affirmed, concluding that none of the claimed errors amounted to a clear deviation from current law.

Summary of the Opinion

The Court held:

• Obvious-error review governs unpreserved constitutional claims. To prevail, a defendant must show an error that is “plain” under current law and affects substantial rights.
• North Dakota’s terrorizing statute (§ 12.1-17-04) is assessed using a dual framework: a subjective mens rea (intent to cause fear or reckless disregard of doing so) and an objective appraisal of whether the defendant’s communication constituted a “true threat” from the perspective of a reasonable person in the recipient’s position.
• Threats under § 12.1-17-04 can be communicated by acts, not merely words.
• King failed to demonstrate that applying § 12.1-17-04 in his case was a clear or obvious deviation from settled law, defeating his as-applied vagueness claim under obvious-error review.
• King’s overbreadth argument, framed as an as-applied Second Amendment challenge, lacked authority and was not plainly supported under current law; therefore, no obvious error.
• The Court declined to reach unnecessary constitutional questions, invoking judicial restraint and constitutional avoidance.

Analysis

Precedents Cited and Their Influence

The opinion interweaves several lines of precedent:

• Constitutional review and preservation:
  • City of Fargo v. Roehrich, 2021 ND 145, 963 N.W.2d 248: Constitutional questions are reviewed de novo—but only when properly presented. Because King’s claims were not preserved, de novo review did not apply.
  • State v. Williams, 2025 ND 46, 17 N.W.3d 820; State v. Hamilton, 2023 ND 233, 999 N.W.2d 214; State v. Landrus, 2022 ND 107, 974 N.W.2d 676: These cases define and cabin “obvious” or “plain” error. The error must be a clear or obvious deviation from current law and affect substantial rights.
  • State v. Majetic, 2017 ND 205, 901 N.W.2d 356 and earlier cases (Tresenriter, Desjarlais, Lee, Weaver, Miller): When the alleged error is not plain under existing law, the Court may decline to address the merits altogether. This reinforced the Court’s refusal to engage in extensive merits analysis where plainness is lacking.
  • Overbo v. Overbo, 2024 ND 233, 14 N.W.3d 898; Nw. Landowners Ass’n v. State, 2025 ND 147, 25 N.W.3d 220; N.D. Legis. Assembly v. Burgum, 2018 ND 189, 916 N.W.2d 83 (Crothers, J., concurring/dissenting): These authorities underscore judicial restraint and constitutional avoidance, leading the Court to confine its analysis to the obvious-error threshold.
• “True threat” and terrorizing elements:
  • State v. Laib, 2005 ND 191, 705 N.W.2d 815: Clarifies that terrorizing threats need not be verbal and can be by act; also highlights the statute’s subjective mens rea—intent to cause fear or reckless disregard.
  • State v. Brossart, 2015 ND 1, 858 N.W.2d 275: Requires an objective “reasonable recipient” lens for determining whether the communication is a threat that crosses into unprotected “true threat” territory. The Court reversed where the jury was not properly instructed.
  • State v. Johnson, 2021 ND 161, 964 N.W.2d 500: Upholds a conviction where the jury instruction adopted the “reasonable recipient” perspective, harmonizing jury guidance with Brossart.
  • State v. Dahl, 2009 ND 204, 776 N.W.2d 37: In the harassment context, the Court signaled reliance on a “reasonable recipient” perspective—supportive of the objective component in terrorizing cases.
• Overbreadth doctrine and Second Amendment framing:
  • Massachusetts v. Oakes, 491 U.S. 576: Overbreadth is an exception to ordinary standing rules, principally developed in First Amendment cases, and is distinct from as-applied challenges.
  • United States v. Adams, 914 F.3d 602 (8th Cir. 2019): Rejects applying the First Amendment overbreadth doctrine to Second Amendment as-applied challenges—a position the North Dakota Supreme Court deemed not plainly contrary to current law.

These authorities guided the Court to refuse merits adjudication of King’s unpreserved constitutional claims and to reaffirm the dual subjective-objective approach for terrorizing, including recognition that nonverbal conduct may constitute a threat.

Legal Reasoning

The Court’s analysis proceeds in two stages, consistent with obvious-error review.

1. Threshold: Plain (obvious) error under current law.

   Because King did not raise his constitutional arguments below, he had to show a clear or obvious deviation from applicable legal rules under current law, along with an effect on substantial rights. This stringent standard reflects a cautious use of obvious-error review, consistent with separation-of-powers and constitutional-avoidance doctrines.

2. Application to each claim.
   • Vagueness-as-applied challenge to § 12.1-17-04.

     King argued the statute criminalizes based on a victim’s subjective fear and enables arbitrary enforcement. The Court disagreed, explaining that North Dakota precedent requires both:

     • A subjective mens rea (intent to cause fear or reckless disregard of causing fear), and
     • An objective “true threat” inquiry judged from the perspective of a reasonable person in the recipient’s position.

     This dual framework in Laib, Brossart, and Johnson forecloses the claim that the statute operates only on subjective fear or lacks an objective limiting principle. Because the law already embeds determinate standards—mens rea plus an objective threat filter—King could not show any “clear deviation” when the district court applied § 12.1-17-04. The Court also reiterated that nonverbal acts can constitute threats, aligning King’s conduct (brandishing a knife while advancing on the victim) with Laib’s “by act” principle. His vagueness claim thus failed at the plainness step.

   • Overbreadth and the Second Amendment framing.

     King maintained § 12.1-17-04, in combination with § 62.1-04-02, criminalizes constitutionally protected conduct and violates his right to carry a weapon. The Court identified two hurdles:

     • Overbreadth doctrine is a specialized, First Amendment-rooted exception, not a ready vehicle for as-applied Second Amendment claims.
     • King cited no authority applying overbreadth to as-applied Second Amendment challenges; federal precedent (Adams) rejects that approach.

     Without supporting authority, there was no plain or obvious error. The Court therefore declined further analysis, consistent with Majetic and similar cases counseling against reaching underlying constitutional merits absent a plain error.

Impact

Although resolved on obvious-error grounds, King offers several practical and doctrinal signals for North Dakota criminal practice:

• Terrorizing prosecutions: Dual standard reinforced.

  Prosecutors and trial courts should continue to frame terrorizing cases around both the defendant’s mental state (intent or reckless disregard) and an objective “reasonable recipient” assessment of whether the communication constitutes a true threat. Defense counsel should expect juries to be instructed accordingly and should request (and preserve) “true threat” instructions where appropriate.

• Threats “by act” are firmly within § 12.1-17-04.

  Nonverbal threatening conduct—such as producing and advancing with a weapon—can satisfy the statute. This provides clear guidance for charging decisions in cases involving brandishing or menacing conduct absent explicit verbal threats.

• Preservation matters.

  The opinion underscores the strategic importance of raising constitutional challenges in the district court. Failure to do so will usually confine appellate review to the stringent obvious-error framework, often foreclosing merits-based relief—especially on complex vagueness or overbreadth theories.

• Overbreadth and the Second Amendment.

  Litigants should not expect the First Amendment’s overbreadth doctrine to carry over into as-applied Second Amendment challenges. King situates North Dakota doctrine in harmony with the Eighth Circuit’s Adams decision. Future litigants contemplating a weapons-rights challenge should tailor their arguments accordingly (e.g., develop a traditional as-applied record or a facial challenge, rather than invoking overbreadth).

• Constitutional avoidance and appellate restraint.

  The opinion illustrates a disciplined adherence to judicial restraint: unless a clear deviation from current law is shown, the Court will not reach out to decide constitutional questions. This approach incentivizes full factual and legal development in the trial court and conserves appellate adjudication for properly framed issues.

• Mixed verdicts do not imply inconsistency.

  The jury acquitted King of carrying a concealed weapon but convicted on terrorizing. King provides an example of how conduct may simultaneously fail to meet one statute’s elements (e.g., concealment) yet satisfy another’s (e.g., threatening conduct), refuting arguments that one acquittal necessarily undermines another conviction.

Complex Concepts Simplified

• Obvious (plain) error:

  When a party does not raise an issue in the trial court, the Supreme Court will reverse only if there is an error that is “plain”—a clear or obvious deviation from current law—and that affects substantial rights. If the issue is unsettled, or the law reasonably supports the trial court’s approach, the error is typically not “plain.”

• Vagueness (as-applied):

  A statute is unconstitutionally vague as applied if, in the specific circumstances, it fails to provide fair notice of what is prohibited or invites arbitrary enforcement. North Dakota’s terrorizing statute avoids those pitfalls by requiring proof of a culpable mental state and an objective “true threat” assessment, cabining both notice and enforcement.

• Overbreadth:

  Overbreadth allows a litigant—principally in First Amendment cases—to challenge a statute based on the risk that it will deter or punish a substantial amount of protected speech, even if the litigant’s own conduct could be punished. It is distinct from an as-applied challenge (which focuses on the litigant’s particular conduct and circumstances) and generally does not apply to Second Amendment as-applied claims.

• “True threats” and the “reasonable recipient” lens:

  Not all threatening-sounding communications are punishable; protected speech is not criminalized. A “true threat” is a serious expression of intent to commit violence or cause harm, assessed objectively from the vantage of a reasonable person in the recipient’s position under the actual circumstances. This filter ensures the First Amendment remains intact while allowing the State to address genuine threats.

• Mens rea: Intent vs. reckless disregard:

  Intent means acting with the conscious objective to cause fear. Reckless disregard means consciously disregarding a substantial risk that one’s conduct will cause fear. Either mental state can satisfy § 12.1-17-04, but the State must prove one of them beyond a reasonable doubt.

Conclusion

State v. King reinforces two points with lasting practical significance. First, North Dakota’s terrorizing statute requires both a culpable mental state and an objective “true threat” showing judged from the perspective of a reasonable recipient—and threats can be conveyed by acts. That synthesis, anchored in Laib, Brossart, and Johnson, provides a stable analytic framework for terrorizing prosecutions and defenses alike. Second, unpreserved constitutional claims face a steep climb on appeal: without a clear deviation from current law, the Court will not reach substantive constitutional questions, reflecting judicial restraint and constitutional avoidance. In addition, King signals skepticism toward deploying First Amendment overbreadth in the Second Amendment, as-applied setting.

The judgment was affirmed because none of the alleged errors were “plain” under current law. For practitioners, the case is a reminder to develop and preserve constitutional issues in the trial court, to request precise “true threat” instructions, and to distinguish carefully among facial, as-applied, and overbreadth theories. For trial courts and juries, it clarifies that terrorizing requires both a culpable mental state and an objectively serious threat, ensuring both protection from genuine threats and fidelity to constitutional speech and weapons rights.

Case Details

• Court: Supreme Court of North Dakota
• Decision Date: October 22, 2025
• Citation: 2025 ND 174
• Docket No.: 20250101
• Author: Justice Daniel J. Crothers
• Disposition: Affirmed
• Counsel: Nicholas S. Samuelson for the State; Kiara C. Kraus-Parr for King