justices raising the bar for establishing when a statement is a “true threat” not protected by the 1st Amendment.

Holding: To establish that a statement is a “true threat” unprotected by the First Amendment, the state must prove that the defendant had some subjective understanding of the statements’ threatening nature, based on a showing no more demanding than recklessness.

Judgment: Vacated and remanded, 7-2, in an opinion by Justice Kagan on June 27, 2023. Justice Sotomayor filed an opinion concurring in part and concurring in the judgment, in which Justice Gorsuch joined as to Parts I, II, III-A, and III-B. Justice Thomas filed a dissenting opinion. Justice Barrett filed a dissenting opinion, in which Justice Thomas joined.

Washington — The Supreme Court on Tuesday sided with a Colorado man who was convicted of a crime after sending numerous threatening messages to a woman on Facebook, with the justices raising the bar for establishing when a statement is a “true threat” not protected by the First Amendment.

The high court divided 7-2 in the case of Counterman v. Colorado, with Justices Clarence Thomas and Amy Coney Barrett in dissent. The court wiped away a Colorado Court of Appeals’ ruling that upheld the conviction of Billy Counterman and sent the case back for further proceedings consistent with its opinion.

Writing for the majority, Justice Elena Kagan said prosecutors must demonstrate that a defendant who made a threat acted recklessly — that is, with the knowledge that others could regard their statement as threatening violence — to establish that the speech is a “true threat” and thus no longer covered by the First Amendment.

“The question presented is whether the First Amendment still requires proof that the defendant had some substantive understanding of the threatening nature of his statements,” she wrote. “We hold that it does, but that a mental state of recklessness is sufficient. The state must show that the defendant consciously disregarded a substantial risk that his communications would be viewed as threatening violence.”

Counterman was prosecuted under a standard requiring the state to show only that a “reasonable person” would understand the messages as threats. The majority found that violated the First Amendment.

“[The state] did not have to show any awareness on his part that the statements could be understood that way. For the reasons stated, that is a violation of the First Amendment,” Kagan wrote.

In a dissenting opinion written by Barrett, which Thomas joined, the justice said the majority’s decision “unjustifiably grants true threat preferential treatment.”

“A delusional speaker may lack awareness of the threatening nature of her speech; a devious speaker may strategically disclaim such awareness; and a lucky speaker may leave behind no evidence of mental state for the government to use against her,” Barrett wrote.

Counterman, she concluded, “communicated true threats” and caused the recipient of the messages, a singer-songwriter named Coles Whalen, to fear for her life.

“Nonetheless, the court concludes that Counterman can prevail on a First Amendment defense,” Barrett said. “Nothing in the Constitution compels this result.”

The case arose from hundreds of Facebook messages Counterman sent to Whalen between 2014 and 2016. Some of the messages were innocuous, while others were more troubling. Whalen tried to block Counterman, but he created multiple accounts to continue sending them. 

In one, Counterman wrote, “F**k off permanently,” while in another, he wrote, “I’ve tapped phone lines before. What do you fear?” According to court filings, a third read, “You’re not being good for human relations. Die. Don’t need you.”

Whalen believed Counterman’s messages were threatening her life and she was worried she would get hurt. She had issues sleeping, suffered from anxiety, stopped walking alone and even turned down performances out of fear that Counterman was following her.

She eventually turned to the authorities and obtained a protective order, after which Colorado law enforcement arrested Counterman and charged him with stalking under a Colorado law that prohibits “repeatedly making any form of communication with another person” in a manner that would “cause a reasonable person to suffer serious emotional distress and does cause that person … to suffer serious emotional distress.”

Conviction under the law requires proof that the speaker “knowingly” made repeated communications, and does not require the person to be aware that the acts would cause “a reasonable person to suffer serious emotional distress.”

Before his trial, Counterman sought to dismiss the charge, arguing that his messages were not “true threats” and therefore protected speech under the First Amendment. But the state trial court found that his messages reached the level of a true threat, and the First Amendment did not preclude his prosecution. A jury then found Counterman guilty, and he was sentenced to four-and-a-half years in prison.

Counterman appealed, arguing the trial court erred when it applied an objective standard for determining whether his messages constituted true threats. He said the court should instead adopt a “subjective intent” requirement, which required the state to show he was aware of the threatening nature of his communications.

But the Colorado Court of Appeals upheld his conviction and agreed with the trial court’s finding that Counterman’s Facebook messages were “true threats” and not protected by the First Amendment. The state supreme court declined to review the case.

The ACLU, which filed a brief in support of Counterman, cheered the decision, saying in a statement that the high court affirmed that “inadvertently threatening speech cannot be criminalized.”

“In a world rife with misunderstandings and miscommunications, people would be chilled from speaking altogether if they could be jailed for failing to predict how their words would be received,” said Brian Hauss, senior staff attorney with the organization’s Speech, Privacy, & Technology Project. “The First Amendment provides essential breathing room for public debate by requiring the government to demonstrate that the defendant acted intentionally or recklessly.”

ACLU Commends Supreme Court Decision to Protect Free Speech in Case Defining True Threats

In Counterman v. Colorado, the court ruled that the First Amendment requires the government to show recklessness in true threats prosecutions.

WASHINGTON – The Supreme Court ruled today in Counterman v. Colorado that in true threats cases the First Amendment requires the government to prove that the defendant acted with a culpable mental state, and not merely that his words were objectively threatening.

Colorado law allowed individuals to be convicted if a reasonable person would perceive their words as threatening, regardless of the speaker’s intent. Today’s decision rules that the First Amendment requires the government to show at a minimum that the defendant recklessly disregarded a substantial risk that his words could be perceived as threatening. The court holds that a recklessness standard strikes the right balance between free expression and safety, “offering ‘enough “breathing space” for protected speech,’ without sacrificing too many of the benefits of enforcing laws against true threats.”

“We’re glad the Supreme Court affirmed today that inadvertently threatening speech cannot be criminalized,” said Brian Hauss, senior staff attorney with the American Civil Liberties Union’s Speech, Privacy, & Technology Project. “In a world rife with misunderstandings and miscommunications, people would be chilled from speaking altogether if they could be jailed for failing to predict how their words would be received. The First Amendment provides essential breathing room for public debate by requiring the government to demonstrate that the defendant acted intentionally or recklessly.”

This case involved a series of disturbing messages that the petitioner, Billy Raymond Counterman, sent to C.W., a professional musician in Colorado, over a two-year period. Counterman was prosecuted and convicted under Colorado’s anti-stalking statute. On appeal, Counterman — who has been diagnosed with a mental illness — argued that his conviction was unconstitutional because the jury was not required to find that he intended to threaten C.W.

The ACLU and its partners filed an amicus brief in the case arguing that a great deal of speech — including political speech, satire, and artistic speech — contains overt or implicit references to violence that could be interpreted as threatening. Without requiring some element of intentional wrongdoing, the ACLU argued, there exists a significant risk that people will be convicted of serious felonies because they failed to adequately anticipate how their words would be perceived.

Counterman v. Colorado is a part of the ACLU’s Joan and Irwin Jacobs Supreme Court Docket. The amicus brief was filed with the ACLU of Colorado, the Abrams Institute for Freedom of Expression, the National Association of Criminal Defense Lawyers, and the National Coalition Against Censorship.

Supreme Court Decides Counterman v. Colorado

On June 27, 2023, the U.S. Supreme Court decided Counterman v. Colorado, No. 22-138, holding that a criminal prosecution based on a true threat of violence requires proof that the defendant subjectively understood the threatening character of the statement such that making the statement was at least reckless.

Between 2014 and 2016, Billy Counterman persistently sent hundreds of unwelcome messages through Facebook to a local musician, creating new accounts to circumvent her attempts to block them. The musician interpreted many of the messages as indicators that Counterman was surveilling her and intended to harm her. Colorado state prosecutors criminally charged Counterman for his behavior, and the Facebook messages themselves were the only evidence presented at trial. Counterman claimed his messages fell within the protections of the First Amendment because they could not be “true threats” if he did not have a subjective understanding that the messages were threatening. The Colorado trial and appellate courts rejected his argument and ruled that “true threats” were subject only to an objective reasonableness standard.

The Supreme Court reversed. While the Court agreed that “true threats of violence” are not protected speech under the First Amendment, the Court held that a court must apply a subjective test to determine if a statement is in fact a true threat of violence. The Court held that this subjective standard is required to avoid a chilling effect on otherwise protected speech. The Court noted that the “ordinary citizen’s predictable tendency” is to steer very wide of speech that may be considered unlawful. The Court held that a subjective standard was necessary to balance the public interest in avoiding unnecessary chilling of lawful speech and the ability of prosecutors to criminally charge defendants for unlawful speech.

The Court then analyzed what level of subjective knowledge is sufficient to accomplish that balance. The Court compared the law governing other non-protected classes of speech, including defamation, and determined that a reckless state of mind is sufficient—i.e., a defendant who consciously disregards a substantial risk that statements would be understood as a true threat may be prosecuted. The Court also concluded that any mens rea requirement higher than recklessness—like purpose or knowledge—would make prosecution too difficult, and “with diminishing returns for protected expression.” To balance the risk of chilling public speech and the need to be able to prosecute true threats of violence, the Court ruled that prosecutors must prove that defendants recklessly made threatening statements.

Justice Kagan authored the opinion of the Court. Justice Sotomayor authored a concurrence in which Justice Gorsuch joined in part. Justice Thomas authored a dissent. Justice Barrett authored a dissent in which Justice Thomas joined.

This Report summarizes an opinion issued on January 23 (Part I); and cases granted review on December 27, 2022, and January 13, 2023 (Part II).

Opinion: Counterman v. Colorado, 22-138

Counterman v. Colorado, 22-138. The Court will clarify the standard for determining whether a statement is a true threat unprotected by the First Amendment. Most federal courts of appeals apply an objective test that asks whether a reasonable person would interpret the statement as a threat of violence. By contrast, the Ninth and Tenth Circuits employ a subjective test that asks whether the speaker intended the recipient to feel threatened. State courts are similarly divided, with some applying a hybrid test that considers both the speaker’s subjective intent and whether a reasonable person would view the statement as a threat. This is the second time that the Court has agreed to address this split. The issue was presented in Elonis v. United States, 575 U.S. 723 (2015), but the Court ultimately resolved that case on a different basis.

The issue here arises in the context of a criminal prosecution for stalking. Over the course of two years, petitioner Billy Raymond Counterman directly messaged a local musician on Facebook without invitation or response. Some of the messages suggested that he was physically surveilling her, while others told her to “Die” and “Fuck off permanently.” Counterman’s messages caused the victim to fear for her safety, so she told her family and police. Relying on 17 messages, Colorado charged him with stalking. Under Colorado law, prosecutors did not need to prove that Counterman intended his statements to be threatening or that he was aware that they could be interpreted that way. Counterman moved to dismiss the charge on First Amendment grounds, arguing that his messages were not true threats and thus were protected speech. The trial court denied the motion and a jury found Counterman guilty of stalking. The Colorado Court of Appeals affirmed Counterman’s conviction. 497 P.3d 1039. In holding that Counterman’s statements were true threats subject to criminal prosecution, the Colorado Court of Appeals applied the objective test that asks whether a reasonable person would view the statements as threatening. The court of appeals rejected Counterman’s argument that a speaker’s subjective intent to threaten is necessary for a statement to constitute a true threat, noting that the Colorado Supreme Court recently rejected that rule absent further guidance from the U.S. Supreme Court. The Colorado Supreme Court later denied Counterman’s petition for review.

Relying on history, tradition, and U.S. Supreme Court precedent, Counterman argues in his petition that “heightened scienter is necessary to true threats.” He notes that, generally, consciousness of wrongdoing is required for a criminal conviction. A scienter requirement is especially important for a statute that regulates speech, Counterman contends, because convicting “a person for negligently misjudging how others would construe the speaker’s words would erode the breathing space that safeguards the free exchange of ideas.” Counterman submits that a purely objective test for true threats conflicts with the Court’s true threats jurisprudence, including Virginia v. Black, 538 U.S. 343 (2003). There, the Court stated that true threats “encompass those statements where the speaker means to communicate a serious expression of an intent to commit an act of unlawful violence to a particular individual or group of individuals.” (Emphasis added.) Counterman relies on this language to argue that the Court has already imposed a heightened scienter requirement for true threats. He also points out that in incitement cases, the Court has required proof that the speaker intended to produce imminent disorder. See Hess v. Indiana, 414 U.S. 105, 109 (1973) (per curiam).

Colorado argues that its objective test for true threats is consistent with the Court’s free speech jurisprudence. It compares its “context-driven objective standard” to the Court’s analysis in Watts v. United States, 394 U.S. 705 (1969). There, in holding that the speaker’s comments at a rally were not true threats subject to criminal prosecution, the Court focused on the plain language of the statements, the context in which they were made, and the listeners’ reaction. Colorado’s test similarly examines “the contested expression’s context, including the listeners’ reaction.” In Colorado’s view, the Court in Black did not subsequently adopt a subjective-intent requirement for true threats. It reads Black as simply identifying one circumstance where a speaker makes a true threat, namely when he communicates with the intent to threaten the recipient. Colorado maintains that Black did not “state that true threats were limited to such statements.” Colorado also contends that an objective test is especially important to protect victims of stalking because stalkers may be delusional, thereby making it difficult for prosecutors to prove a subjective intent to threaten. And because its objective test considers the context in which the statements were made, Colorado submits that speakers will be protected from unfair punishment.

US Supreme Court makes decision on Counterman v. Colorado

WASHINGTON, D.C., USA — The Supreme Court ruled Tuesday to make it more difficult to convict a person of making a violent threat, including against the president or other elected officials.

The Biden administration had warned that the internet and social media have expanded the number and kinds of threats in recent years, including online harassment, intimidation and stalking. And they warned the case could affect the ability to prosecute threats against public officials, which have increased in recent years.

The high court was ruling in a case that involves a man who was sentenced to more than four years in prison in Colorado for sending threatening Facebook messages. The man’s lawyers had argued that he suffers from mental illness and never intended his messages to be threatening.

The question for the court was whether prosecutors must show that a person being prosecuted for making a threat knew their behavior was threatening or whether prosecutors just have to prove that a reasonable person would see it as threatening.

Justice Elena Kagan wrote for a majority of the court that prosecutors have to show that “the defendant had some subjective understanding of the threatening nature of his statements.”

“The State must show that the defendant consciously disregarded a substantial risk that his communications would be viewed as threatening violence,” she said.

Seven justices agreed with the outcome. Two conservative justices, Clarence Thomas and Amy Coney Barrett, dissented.

The Biden administration had been among those arguing for the lower “reasonable person” standard.

“Threats of violence against public officials in particular have proliferated in recent years, including threats against Members of Congress, judges, local officials, and election workers,” the Biden administration had noted, saying the case could affect prosecutions in those cases.

Speech of all kinds is generally protected by the free speech clause in the Constitution’s First Amendment, but so-called “true threats” are an exception.

The specific case before the justices involved Billy Counterman. He contacted a musician through Facebook in 2010 to ask her whether she would perform in a benefit concert he said he was organizing. The woman, Coles Whalen, responded but nothing ever came of it.

Whalen forgot about the exchange, but four years later, Counterman began sending her Facebook messages again. He ultimately sent hundreds of messages, including ones that were rambling and delusional and others that were quotes and memes. Whalen never responded and blocked Counterman several times, but he would just create a new account and continue sending messages.

Counterman believed Whalen was responding through other websites and Facebook pages. Whalen became concerned after Counterman’s messages — including “You’re not being good for human relations. Die. Don’t need you.” and “Was that you in the white Jeep?” — suggested he was following her in person. Eventually, the messages were reported to law enforcement and Counterman was arrested. He was convicted and lost an appeal.

The justices’ ruling is a victory for Counterman and sends his case back to lower courts for another look. In a statement, his attorney John Elwood said that they are “gratified that the Supreme Court agreed with Billy Counterman that the First Amendment requires proof of mental state before it can imprison a person for statements that are perceived as threatening.”

Colorado Attorney General Phil Weiser, whose office prosecuted Counterman, said in a statement that the decision will make it “more difficult to stop stalkers from tormenting their victims.”

“In today’s ruling, the Court creates a loophole for delusional and devious stalkers and misapprehends the very nature of threats faced by stalking victims,” Weiser said. “In short, this decision will make it more likely that victims of threats— mostly women — will live in fear and will be discouraged from speaking out against their stalkers, believing there is little they can do to hold those stalkers accountable.”

The case is Counterman v. Colorado, 22-138.

Opinion of the Court Counterman v. Colorado

source 1  source 2  source 3  source 4 source 5 source 6 source 7

Penal Code 422 PC prohibits you from making criminal threats. This means threats of death or great bodily injury that are intended to (and that actually do) place victims in reasonable and sustained fear for their safety or the safety of their families.

Criminal threats can be charged as

• a misdemeanor or
• a felony, and
• is punishable by up to 3 years in jail or prison.

The full text of the statute reads as follows:

422. (a) Any person who willfully threatens to commit a crime which will result in death or great bodily injury to another person, with the specific intent that the statement, made verbally, in writing, or by means of an electronic communication device, is to be taken as a threat, even if there is no intent of actually carrying it out, which, on its face and under the circumstances in which it is made, is so unequivocal, unconditional, immediate, and specific as to convey to the person threatened, a gravity of purpose and an immediate prospect of execution of the threat, and thereby causes that person reasonably to be in sustained fear for his or her own safety or for his or her immediate family’s safety, shall be punished by imprisonment in the county jail not to exceed one year, or by imprisonment in the state prison.

(b) For purposes of this section, “immediate family” means any spouse, whether by marriage or not, parent, child, any person related by consanguinity or affinity within the second degree, or any other person who regularly resides in the household, or who, within the prior six months, regularly resided in the household.

(c) “Electronic communication device” includes, but is not limited to, telephones, cellular telephones, computers, video recorders, fax machines, or pagers. “Electronic communication” has the same meaning as the term defined in Subsection 12 of Section 2510 of Title 18 of the United States Code.

Criminal threats can be charged whether or not you have the ability to carry out the threat even if you do not actually intend to execute the threat. ^1 2

Examples

• threatening to shoot another person while you are holding a gun,
• a recently fired employee calling the former boss and saying “you and the office staff better watch your backs,”
• texting your ex that you’re going to set fire to her apartment.

Defenses

Even if a threat was made, it is a defense against a criminal threat charge if

1. the threat was not specific, but was vague or ambiguous,
2. the recipient of the threat could not have reasonably feared for their safety,
3. the recipient of the threat was not actually in fear,
4. the recipient’s fear was merely fleeting or momentary, OR
5. you only made a threatening gesture and did not convey your threat verbally, electronically or in writing.

Or it may be the case that there was no threat, and the accuser is making a false allegation.

Penalties

Penal Code 422 PC is a wobbler, which means that prosecutors may file it as either a misdemeanor or a felony.

If you are convicted of misdemeanor criminal threats, you face up to one year in county jail. If you get a felony conviction, you face up to four years in the California state prison.³ Using a dangerous or deadly weapon increases your sentence by one year.⁴

Because a criminal threats conviction is a “strike” under California’s three-strikes law, you must serve at least 85% of your sentence before you are eligible for release.

1. What is the legal definition of criminal threats?

California Penal Code 422 PC provides the legal definition of a “criminal threat” (formerly referred to as a “terrorist threat”). This section makes it a crime to threaten another person with immediate harm when you intend to – and in fact do – cause reasonable and sustained fear in that individual.⁶

A prosecutor must prove the following elements, beyond a reasonable doubt, to successfully convict you under this statute:

1. you willfully threatened to unlawfully kill or unlawfully cause great bodily injury to the alleged “victim,”
2. you made the threat orally, in writing, or by means of an electronic communication device,
3. you intended that your statement be understood as a threat and intended that it be communicated to the alleged “victim,”
4. the threat was so clear, immediate, unconditional, and specific that it communicated a serious intention that the threat would be carried out,
5. the threat actually caused the “victim” to fear for their own safety (or for the safety of their immediate family), and
6. the “victim’s” fear was reasonable under the circumstances.⁷

Note that you can violate California’s criminal threats law without actually addressing the person you are threatening.

Example: The defendant got into a fight with another man over a dirt bike that the other man claimed the defendant was trying to steal. The defendant yelled to a companion, “Shoot him!” For this, the defendant was charged with violating Penal Code 422 PC. All that mattered was that the defendant intended his statement to be taken as a threat.⁸

Let’s take a closer look at some of these terms and phrases to gain a better understanding of their legal definitions.

1.1. To kill or seriously injure another person

You need not threaten to commit a specific crime against the victim. Simply threatening to kill or cause great bodily injury is sufficient. Great bodily harm is a significant or substantial bodily injury, as opposed to an insignificant or even moderate one.⁹

Although this law refers to threatening a person, the threat may be directed at an individual or a group of people (such as all the employees of a particular company).

1.2. Verbal, written or electronically communicated statements

Under Penal Code 422 PC, the threat must be

• verbal,
• written or
• electronically communicated.

Gestures that are unaccompanied by a verbal, written or electronically communicated statement will not suffice.

Example: If you wanted someone to be quiet, and you put your finger to your lips and then slid your finger across your throat, this would not meet the criteria of a criminal threat. However, if you accompanied your gesture with a “sh” or “shush”, that would be considered a verbal statement and would therefore qualify as a criminal threat as long as the other elements of the offense were also satisfied.¹⁰

As for the definition of an “electronically communicated” threat, this type of threat is one that is conveyed via a

• telephone (a land-line or a cell phone),
• computer,
• video recorder,
• fax machine, or
• text or pager.¹¹

1.3. Fear

You do not violate Penal Code 422 PC California’s criminal threats law unless you place the victim in reasonable fear. “Fear” as it applies to criminal threats actually encompasses three different concepts:

1. that the victim was actually fearful,
2. that the fear was reasonable, and
3. that the fear was sustained (as opposed to momentary or fleeting).

Let’s take a look at each of these in order.

1.3.a. Actual fear

Before you can be convicted of a criminal threats charge, the prosecution must establish that the recipient of the threat actually feared for their safety or for the safety of their family.

If the person laughs and replies “Yea, whatever,” that is probably good evidence they do not take the threat seriously. Though if they buy a new security system or go into hiding, that is probably good evidence that they are really in fear.

This requirement that the recipient of the threat believes that the threat is credible – and is therefore fearful of its execution – may be satisfied whether you

• deliver the threat in person or
• communicate it through a third party.¹²

This is important to understand: You may still be prosecuted for criminal threats even if you are not the person who personally conveys the threat.

If the victim was not scared, there is no criminal threat, and any charges filed under Penal Code 422 PC should be dismissed. However, if the victim was fearful, the analysis turns to the next question – was that fear reasonable?

1.3.b. Reasonable fear

If your threat is silly or unreasonable, there can be no reasonable fear. For example, “I’m going to hijack an F-15 and drop a bomb over your house” does not meet the legal definition of a criminal threat.

However, this is not to say that there must be an immediate ability to carry out the threat, as long as the recipient of the threat reasonably believes that it could be imminent.¹³

Example: Tom threatens to shoot Bob and has his hand in his pocket to make it look as if he has a gun, even though he really does not. That would suffice, assuming the additional elements of the crime are also satisfied.

1.3.c. Sustained fear

Courts have had a difficult time creating an exact definition for “sustained” fear. The best they have come up with is that it refers to

“a state of mind…that extends beyond what is momentary, fleeting or transitory.”¹⁴

There is no set timeframe to which this refers and it must therefore be determined on a case-by-case basis.

For a criminal threats charge to hold, the victim must be in “sustained fear” which means it lasts for more than a moment. Though courts are vague as to exactly how long the fear must last.

Example of sustained fear: The defendant goes to a gas station, displays a knife in his waistband, and tells a man that he would kill the man and his son right then. The court held this was a criminal threat.¹⁵

Example where the court found there was no sustained fear: The defendant (a high school student) got in his teacher’s face and stated that he was “going to get him”. The court held that there was nothing to indicate that the fear was more than fleeting or transitory.¹⁶

1.4. Conditional and empty threats

It bears repeating that the language used in Penal Code 422 PC calls for a threat that is

“so unequivocal, unconditional, immediate, and specific as to convey to the person threatened, a gravity of purpose and an immediate prospect of execution.”

But despite these exact words, threats that are conditional or empty can nevertheless qualify as criminal threats.

Conditional threats

Conditional threats are threats that are formulated as a condition, such as

• “I will kill you when I get out of jail” or
• “I will kill you if you don’t give me the money by next Tuesday”.

The courts have held

“conditional threats are true threats if their context reasonably conveys to the victim that they are intended”.¹⁷

Depending on the circumstances, this type of threat could actually be a form of extortion or blackmail (discussed in detail under Section 4.2 Extortion), which would subject you to additional penalties under California Penal Code 518 PC).¹⁸

When conditional threats are made with a sense of purpose and likelihood that they will be executed if the condition is or is not satisfied, they will be considered criminal threats.

As the court explains, “‘Most threats are conditional; they are designed to accomplish something; the threatener hopes that they will accomplish it, so that he won’t have to carry out the threats.’”¹⁹

Example:  A defendant went to a witness’s home, grabbed her by the throat, put a gun to her head and said “don’t go to court and testify against our home boys or else we’ll hurt you or we’ll take you out. If you go to court and testify, I’ll kill you. There’s nowhere you can go where I won’t be able to find you.” The court held this was a criminal threat.²⁰

Empty threats

“Empty” threats are threats that the maker of the threat does not intend to carry out. They are more of a scare tactic than a real threat.

Whether or not you “really” intend to execute the threat is irrelevant to a criminal threats prosecution. All that is required is that you convey the threat in a credible manner so that the recipient of the threat reasonably believes that you intend to see it through.²¹

Example:  The defendant (a Vietnam vet) brought a grenade to a repair shop and threatened to blow it up. The defendant knew that the grenade was inoperable, but the employees thought it was real. Since the employees reasonably feared the defendant would carry out his threat, he could be convicted.²²

In general, a judge or jury determines whether or not a statement was a threat by examining all of the surrounding circumstances in the case.²³

2. What are common defenses to Penal Code 422?

If the prosecutor cannot prove any of the elements above, you cannot be convicted of this offense. As such, there are numerous legal defenses on which your defense team can rely.

The following are examples of some of the most common defenses to a criminal threats charge that your attorney can present on your behalf to raise a reasonable doubt of guilt.

2.1. The threat was not immediate

The language of Penal Code 422 PC states that the threat must be so “unequivocal, unconditional, immediate and specific” that it conveys an immediate possibility of execution.

An “immediate possibility of execution” doesn’t necessarily mean that it has to be a threat to do something right this second. While it can be that, it can also be a situation where the threatened individual understands that if they do not comply with your demand at some later point, you will be able to execute the threat at that time.²³

Though if the alleged threat was so vague and there was no sense of when you might execute the threat, that vagueness would serve as a defense.

Example: An inmate serving a life prison sentence without the possibility of parole tells one of the deputies that he’s going to kill the deputy and his family. Under this scenario, the inmate would probably not be convicted of making a criminal threat. Without more, there’s no sense of immediacy or any reason for the deputy to assume that the defendant has the ability to carry out his threat.²⁴

2.2. The threat was vague or ambiguous

While a criminal threat must be “specific,” it does not have to communicate a time or precise manner of execution.²⁵ This means that even if the threat, on its face, appears vague or ambiguous, if the surrounding circumstances clarify its meaning, it will qualify as a criminal threat.²⁶

It, therefore, follows that the absence of circumstances that would be expected to accompany a threat may serve as a defense to the claim that the statement was a criminal threat.

Example: Let’s refer back to an example above where the defendant, a high school student, felt disrespected by his teacher when the teacher opened a door that accidentally hit the student in the head. To retaliate, the student “got in the teacher’s face” and stated that he was “going to get him”.

The court reasoned that the defendant’s statement was nothing more than a vague threat of retaliation without prospect of execution. There was simply nothing to indicate that the threat rose to the level of a criminal threat.²⁷

2.3. The victim was not afraid

If the alleged victim does not fear your threat either because they believe that it is a joke or that you are incapable of executing it, then there is no criminal threats violation – period.

The victim must be placed in fear and if, for whatever reason this is not the case, you should be acquitted of the charge.

2.4. The threat (or alleged victim’s fear) was unreasonable

If the recipient of the threat does not feel threatened – or if they do, but that fear is unreasonable – you should not be convicted of this offense. There are actually two requirements here: the victim’s fear must be

1. reasonable, and
2. real.

If both requirements are not satisfied, there is no case.²⁸

This means that it does not matter if the threatened individual actually fears your threat if it was not reasonable to do so under the circumstances.

For example, if someone threatens to run you over with an airplane – and this someone has no pilot’s license and threatens you while you are standing in the street of a residential neighborhood – it would not be reasonable for you to fear that the individual making the threat would actually see it through.

2.5. The fear was not sustained

The last part of the “fear” analysis involves whether the victim’s fear was sustained as opposed to momentary or fleeting. If the fear only lasted for a brief moment and did not cause any prolonged concern, you should not be convicted of criminal threats.

If the victim’s fear was sustained – but it was an overreaction and therefore not reasonably sustained – that, too, may serve as a defense.

2.6. The threat was protected as free speech

California’s criminal threats law does not apply to constitutionally protected speech.²⁹ This law only targets individuals who try to instill fear in others, not those who engage in “mere angry utterances or ranting soliloquies, however violent”.³⁰

Example: The defendant, who is an inmate in jail, told a jail psychotherapist that he was thinking about how he was going to kill [his girlfriend] once he was released from jail. The court held that Penal Code 422 PC was not enacted to punish emotional outbursts. The court reasoned that the threats were part of the therapy intended only for the therapist’s ears and, as such, are protected.³¹

2.7. False accusations

Because there is no requirement that the victim suffers any physical injury, criminal threats is a crime ripe for false accusations. Anyone who is angry, jealous, vengeful, spiteful or trying to escape their own criminal liability could easily falsely accuse another person of this serious crime.

This is especially true when the accusation is of a verbal threat, with no written or electronic recording.

But as Ventura criminal defense lawyer John Murray³² explains,

“Our attorneys are all former police investigators and prosecutors. This experience allows us to explore and examine cases in a way where we can detect the lies and reveal the truth. If you were falsely accused of making criminal threats, we will fight the charge to clear your name.”

3. What are the penalties for a 422 PC conviction?

Penal Code 422 PC is what’s known as a “wobbler ” which means that prosecutors may charge the offense as either a misdemeanor or a felony, depending on

1. the circumstances of the offense, and
2. your criminal history.

If convicted of the misdemeanor, you face up to one year in county jail and a maximum $1,000 fine. If convicted of the felony, you face

• up to three years in the California state prison and
• a maximum $10,000 fine.³³

If you personally use a deadly or dangerous weapon to communicate your threat, you face an additional and consecutive one-year in the state prison.³⁴

Lastly, if you make threats

• on more than one occasion,
• against multiple people, or
• pursuant to different objectives,

you could face these penalties for each threat that you communicate.

Note that the Los Angeles County District Attorney’s Office will generally not prosecute criminal threats cases unless:

1. The offense was related to domestic violence or a hate crime;
2. You made repeat threat offenses in the last 24 months;
3. There is a documented history of threats from you toward the victim;
4. You had a dangerous or deadly weapon during the offense; or
5. There was no indication of substance abuse disorder or mental illness.³⁵

3.1. California three strikes law

When charged as a felony, a conviction for criminal threats qualifies as a serious felony which means that it is a “strike” for purposes of California’s three-strikes law.³⁶

If you are subsequently charged with any felony, and you have a prior “strike” on your record, you will be referred to as a “second striker,” and your sentence will be twice the term otherwise required by law.³⁷

If charged with a third felony, and you have two prior strikes, you

• will be referred to as a “third striker” and
• will serve a mandatory minimum sentence of 25 years to life in the state prison.³⁸

Because Penal Code 422 PC is a strike, you must serve at least 85% of your sentence before you will be eligible for release on parole.

3.2. Additional penalties

Penal Code 422 PC is considered a crime of moral turpitude.³⁹ “Crimes of moral turpitude” are crimes that are viewed as more offensive and reprehensible than others. Based on this classification, a conviction for California’s criminal threats law potentially subjects you to

• professional discipline (since criminal convictions can affect professional licenses),⁴⁰ and
• deportation or removal if you are a legal immigrant or alien.⁴¹

4. Are there related offenses?

There are a number of offenses that could be charged in connection with criminal threats. If you threaten to kill or seriously injure another person during the commission or attempted commission of another crime, prosecutors will likely charge you with both crimes.

The following are some examples of these types of offenses.

4.1. Penal Code 136.1 PC California’s law against dissuading a witness

Penal Code 136.1 PC California’s law against dissuading a witness prohibits preventing or attempting to prevent any witness or victim of a crime from

• reporting the crime or
• testifying about the crime.⁴²

If you attempt to dissuade a witness from testifying and do so by threatening imminent harm in violation of California’s criminal threats law, prosecutors will likely charge you with both offenses.

Like Penal Code 422 PC, dissuading a witness is a wobbler, punishable by

• up to 1 year in a county jail, or
• up to 4 years in the state prison.

4.2. Extortion

Simply put, you violate Penal Code 518 PC California’s extortion law when you use force or threats to gain

• money,
• property or
• other services.

You also commit extortion when you threaten a public officer in order to compel them to perform an official act.⁴³

Suppose, for example, you threaten a politician. You tell him that if he does not vote for the specific legislation, you will make sure his family suffers the consequences. Prosecutors could charge you with both extortion and criminal threats.

Extortion is a felony, punishable by

• 2, 3 or 4 years in the state prison and
• a maximum $10,000 fine.⁴⁴

4.3. Domestic violence

California’s domestic violence laws apply to crimes that are committed against your current or former

• spouse,
• romantic partner,
• cohabitant,
• child, or
• parent.

Allegations of domestic violence are often based on highly charged emotional situations. It is not at all uncommon for people in these situations to threaten violence even when there is no actual intent to inflict harm. Though if the recipient of the threat fears for their safety, prosecutors will likely charge you with

1. criminal threats as a crime of domestic violence (which may subject you to additional penalties), or
2. criminal threats in addition to another domestic violence offense if there are also allegations of actual force or violence.

4.4. Penal Code 646.9 PC California’s stalking law

Penal Code 646.9 PC California’s stalking law prohibits harassing or threatening another person to the point where that individual fears for their safety or the safety of their family.⁴⁵ This law is very similar to Penal Code 422 PC.

If you “stalk” another person and communicate a verbal, written or electronically transmitted threat that causes the recipient reason to believe that you intend to carry out that threat, you face prosecution for criminal threats and stalking.

Stalking is also a wobbler, punishable by

• up to 1 year in a county jail or
• up to 5 years in the state prison.⁴⁶

4.5. Penal Code 186.22 PC California’s gang enhancement

Penal Code 186.22 PC is known as California’s criminal street gang enhancement. If you threaten another individual for the benefit of a gang, you subject yourself to

• 5, 10, 15 or 25-years-to-life in prison in addition and consecutive to
• the sentence that you would otherwise receive for your Penal Code 422 PC conviction.⁴⁷

4.6. Aggravated trespass

Penal Code 601 PC aggravated trespass is frequently charged along with criminal threats.

Aggravated trespass is charged when you

• make a credible threat to the safety of another person or their immediate family, and
• enter that person’s residence or workplace within thirty (30) days of making the threat,
• without a lawful purpose and with intent to carry out the threat.⁴⁸

PC 601 aggravated trespass is a wobbler, with a maximum felony sentence of three (3) years.⁴⁹

]]>