August 14, 2020

Appeals Court: Not A Crime To Say A Mayor Should Get His Ass Capped

Harassment statutes tend to be broadly written and often undergo legislative surgery after they’ve been challenged in court. This isn’t one of those cases. The statute stands. But the conviction does not.

A New Jersey man was arrested and charged with harassment after his handwritten criticism of the Secaucus mayor was discovered and brought to the attention of the mayor, who then had to ask his daughter what the note meant.

Here’s a brief summary of the alleged crime from Keldy Ortiz of

The arrest came after [Michael] West put a sign on a locked fence on the end of Farm Road in Secaucus that read “the mayor is out of control with his draconian rules & somebody must cap his ass.” The note was found by a department of public works employee.

West had a reason for doing this:

The sign from West came after he took issue with a tree that was cut down in town.

Most people know what having your ass capped means. Most people do. Michael West claimed he didn’t know what that phrase meant when he wrote it. More importantly, Mayor Michael Gonnelli didn’t know what the phrase meant. Not only was the note placed somewhere the mayor was unlikely to discover it, the note was discovered by a third party who informed the mayor of its existence.

The decision [PDF] recounts what took place once the mayor took possession of the indecipherable note.

The Mayor took the note and brought it back to his home but, at that time, he did not “realize what the note meant.” His wife was equally mystified. However, when he showed the note to his daughter, she “immediately told [him] what it meant.”

It was only after all of this that the mayor decided he felt “uncomfortable” and decided to report it to law enforcement. The defendant spoke in his own defense at the bench trial but that didn’t go all that well.

His attorney asked him: “What was the purpose? Why did you . . . put . . . that note there?” The record shows defendant’s response consisted of a rambling, nonsensical diatribe in which he alleged to “being watched by two detectives” that were “standing by a rock.”

He was also asked about the tree that triggered his angry note writing.

Defendant continued this stream of consciousness with irrational testimony for several transcription pages until the municipal court judge intervened…

The municipal court decided this was still harassment, mainly because of the “cap his ass” phrase. The appellate court disagrees… about a number of things.

First, the court says the municipal court judge should have recused herself since she was the one that approved the arrest warrant for the person whose case she was now trying.

But more to the harassment point, the state failed to prove this was harassment, that the defendant was trying to threaten the mayor, or even that anyone involved knew for sure the phrase “cap his ass” was clearly threatening.

The Mayor was the State’s only witness. The Department of Public Works employee who discovered the note and brought it to the Mayor’s attention did not testify. The note stated: “the mayor is out of control with the draconian rules & somebody must cap his ass.” Both the Mayor and defendant testified that they did not know what the phrase “cap his ass” meant. The Mayor testified that his daughter told him what the phrase meant to her. The State did not produce any competent authority of the meaning of the phrase. It is undisputed that the note was posted at a place unlikely to be discovered by the Mayor. Based on the testimony of the only two witnesses, the meaning of the phrase “cap his ass” remains unsettled.

The defendant claimed he didn’t know what “cap his ass” meant. He also posted the sign in a place where it was unlikely to be discovered by its supposed “target.” The defendant had not engaged in any previous harassment of the mayor or any other city employees. In fact, there had been no interaction at all between the accused and the man in need of ass capping.

The state appeals court dumps the conviction.

[W]e are satisfied that based on the record before us, no reasonable fact-finder could find defendant guilty of harassment beyond a reasonable doubt.

The mayor remains as safe as he ever was. A note suggesting he would be better suited with a cap in his ass probably just summarized the opinions of his critics in somewhat cruder fashion than they would have chosen to deploy but it’s still pretty far from a threat or harassment. A single note hung on the fence across an out-of-the-way road is the least effective harassment ever but it took three courts to finally come to this conclusion.
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