Appeals Court Rules WI Stalking Law Constitutional in Case Against Waukesha Man

Wisconsin Court of Appeals

In a ruling dated November 07, 2012 the Wisconsin Court of Appeals upheld Wisconsin’s Anti-Stalking law following a decision from a Waukesha County Judge that dismissed charges against aWaukesha man in August of 2011.

Waukesha Circuit Court Judge James R. Kieffer dismissed charges against Gary M. Hemmingway for stalking with a previous conviction of a violent crime after Hemmingway argued the Anti-Stalking law was an overbroad regulation of constitutionally protected speech.  The Court of Appeals reversed judge Kieffer’s ruling, holding that “The First Amendment does not protect intentional conduct designed to cause serious emotional distress or fear of bodily harm or death in a targeted victim.”

Hemmingway was charged with sending a steady stream of intimidating texts, emails and phone calls to his ex-wife, who felt threatened and upset by the communications.

The complaint detailed some of the communications, including Hemmingway allegedly telling Rebecca that he would “blow his brains out” and make a mess of her kitchen and that “God forgives you for everything, even murder.”
Hemmingway told Rebecca, as alleged in the complaint, “that he would love to
see someone holding a gun to her and for her to be begging for her life.” The complaint says that Hemmingway told her the only way she could feel his pain would be if both her sons died at the same time. Rebecca stated that she believed Hemmingway had a firearm and that during a 2008 domestic abuse incident he had told her, “I have not killed anyone in a long time. I don’t know who’s going to be first, you or me.”

Hemmingway’s ex wife Rebecca indicated that his actions had caused
her to suffer serious emotional distress and that she “fears bodily injury and death either to herself or to a member of her family.” Rebecca’s “significant fear of harm or death” was compounded by her knowledge of Hemmingway’s past violent crimes, including aggravated battery and negligent use of a dangerous weapon.

Based on the Court of Appeals’ ruling it appears that Hemmingway will once again face felony charges.

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