An Atlantic City bar owners alleged threat against a city inspector was not a true threat, a judge said in dismissing the indictment Friday.
Johnny Exadaktilos was indicted last May on a third-degree charge of terroristic threats after he allegedly threatened Henry Kiefer when the then-city inspector tried to post a work order stoppage for an expansion at his Ducktown Tavern on July 12, 2020.
Kiefer went to police the next day to file a complaint.
He claimed Exadaktilos grabbed him by the shoulder and then threated to shoot him “or any other a–holes from the city (who) come back to this property.”
A day later, Exadaktilos went to the police himself alleging "inappropriate conduct and abuse of power" by the inspector.
During a July 15, 2020, interview, police asked Kiefer if he felt Exadaktilos' statement was threatening and said "that he did not feel scared, it was not a real threat, and he paid no attention to it," according to the evidence presented.
Kiefer also said that, "while his shoulder was 'grabbed,' it was nothing more than a communication directing (his) attention and guiding him to the other side of the property to see the trash and dilapidation of the structure visible from the restaurant," the defense attorney Lou Barbone argued.
Because Kiefer said he didn't feel threatened and saw no firearm, the comments "were not intended as a 'true threat' of violence and thus protected by the First Amendment," Judge William Todd Miller wrote in his decision.
The grand jury heard "merely one leading question with a response from the witness 'yes,'" the judge wrote.
"While this may be technically appropriate, it deprived them of an essential function including: 1) bringing individuals who are probably guilty to trial and to clear the innocent of baseless charges; 2) protecting the defendant from unfounded prosecutions; and 3) considering exculpatory evidence prior to making a decision," he continued. "Though the state is not under an obligation to provide the grand jury with evidence on behalf of the accused, the grand jury is entitled to have truthful, non-misleading evidence provided to them."
In conclusion, the judge found the indictment was not valid.
"The fact that Exadaktilos’s statement was likely not a real threat — as evidenced by Kiefer’s own admission, that he did not take it as such, nor did he pay attention to it — and is likely protected under the First Amendment as transitory anger," Miller wrote in granting the motion.
The state could try to make a presentation to a new grand jury. It was unclear if that would happen.
Barbone declined comment.
