Terrorist Threats: When Is a Threat Criminal?
By Vince Imhoff, Esq., and Dan Rhoads
Despite its name, the crime of terrorist threats does not necessarily implicate al Qaeda or other terrorist organizations for their inflammatory speech or their attempts at political blackmail. Instead, the offense has more to do with situations involving domestic violence, hate crimes, bomb threats, and school violence. The question presented as to when is a threat actually a violation of the criminal law presents a tension between an individuals free-speech rights and the government’s duty to protect its citizens.
This article will attempt to answer the question so as to give individuals guidance in their dealings with other people. It will not resolve the tension because in matters of law there always exists the need to balance individual rights against the rights of the government to govern to protect the citizenry at large.
Generally, a person makes a terrorist threat by threatening a violent crime with the purpose of terrorizing another or of causing public panic or inconvenience. Model Penal Code 211.3.
In California, under Penal Code Section 422, a criminal threat has five elements:
- 1. the accused willfully threatened to commit the crime that will result in death or great bodily injury; and
- 2. the accused made the threat with the specific intent that it be taken as a threat; and
- 3. the threat is so unequivocal, unconditional, immediate, and specific as to convey a gravity of purpose and the immediate prospect of execution; and
- 4. the threat actually caused sustained fear in the victim; and 5. the sustained fear was reasonable.
Willful Threat To Commit a Crime that Will Result in Death or Great Bodily Injury
Thus, it is clear that not just any threat qualifies. It must be a true threat. A threat that is real and genuine. Only a person who “willfully threatens to commit a crime which will result in death or great bodily injury to another person” may be charged with making criminal threats. Cal. Penal Code 422. Such a threat may be “made verbally, in writing, or by means of an electronic communications device” Id.
Therefore, calling in a bomb threat and threatening to shoot a person are just two examples of the kind of threat that the law makes illegal. Threatening to slash someone’s tires probably would not, on its own, be sufficient to be considered a criminal threat.
The person making the threat must have the specific intent that his statement “is to be taken as a threat, even if there is no intent of actually carrying it out Cal. Penal Code 422. Consequently, if someone points an imitation firearm at another and threatens to shoot, it is no defense that the threatener knew that his gun was harmless. If his purpose is to make the other person feel threatened, the specific intent element is satisfied.
Therefore, a high-school student’s drawing of a police officer being shot was ruled not to be a criminal threat. The officer had previously cited the student for possessing marijuana. Over a month later, the student drew a young man shooting an officer who was wearing that officers badge number. He turned in the drawing for credit in his art class. Although the student first said that he did not expect the officer ever to see the drawing, he admitted that it would be reasonable to expect that she would. The court ruled that this evidence was not “sufficient to establish that, at the time he acted, the minor harbored the specific intent that the painting would be displayed to [the officer].” In re Ryan D., 100 Cal. App. 4th 854, 864 (3rd Dist. 2002).
Unequivocal, Unconditional, Immediate, and Specific
The threat, both on its face and under the circumstances, must be “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.” Cal. Penal Code 422. This third element is the one that is most often disputed in prosecutions under the criminal threats provision of Californias Penal Code. Thus, court opinions have illuminated its meaning.
“Unequivocal”: A minor’s commitment to juvenile detention was reversed when the court found that his dark poetry did not constitute a criminal threat. The minor showed to some female classmates a poem in which he had written, “I can be the next kid to bring guns to kill students at school. So parents watch your children cuz I’m BACK!!” One of the students felt threatened and told a teacher. The school then took action. The California Supreme Court held that the poem was not criminal. On its face, the threat was not unequivocal because the persona says, “I can,” as opposed to, “I will kill students.” Under the circumstances, the poem was not unequivocally threatening.
Given that there was no animosity between the students nor any “immediate prospect of execution of a threat to kill,” the poem was not “sufficiently unequivocal to convey . . . an immediate prospect that minor would bring guns to school and shoot students.” In re George T., 93 P.3d 1007, 1009, 1018 (2004).
“Unconditional”: Despite what the statute says, the courts have held that a conditional threat can be criminal. In People v. Bolin, the prosecution argued that a letter the defendant sent his daughter’s baby’s father was a criminal threat. Among other things, the letter said, “If you ever touch my daughter again, I’ll have you permanently removed from the face of this Earth.” Bolin, 956 P.2d 374, 402 (Ca. 1998). Rejecting the defendant’s argument that his conditional threat was not criminal, the court stressed that the threat must only be so unconditional as to convey a gravity of purpose and an immediate possibility of carrying out the threat.
Reasonable, Sustained Fear
A criminal threat must cause the victim a “sustained fear for his or her own safety or for his or her immediate family’s safety.” Cal. Penal Code 422. ‘Sustained’ means “a period of time that extends beyond what is momentary, fleeting, or transitory.” People v. Allen, 33 Cal. App. 4th 1149, 1156 (2nd Dist. 1995). That fear must be reasonablein other words, it must be a fear that any reasonable person in the victim’s situation would feel. The threat “does not have to be the sole cause of the victim’s fear” and actions taken after a threat may contribute to the victim’s fear. People v. Solis, 90 Cal. App. 4th 905, 1015 (2nd Dist. 2001).
In situations where the final two elements of the crime of criminal threats are not present, the speaker may be charged with an attempt to make a criminal threat. People v. Benitez, 105 Cal. Rptr. 2d 242, 251 (3rd Dist. 2001). Consequently, if the intended victim is deaf, or overconfident in his ability to defend himself, or suicidal, a criminal threat might not provoke sustained fear. However, if the threatener intends to cause such fear, the threat is a criminal attempt.
Laws prohibiting terroristic threats must be narrow in scope to avoid infringing First Amendment rights. Only when a person threatens a crime, and that threat meets the requirements discussed above, can the person be prosecuted. In distinguishing between protected First Amendment speech and the unprotected criminal threats, courts will look closely at the context in which the words are spoken and the surrounding circumstances.
In California, the offense of criminal threats can be charged as either a misdemeanor or a felony, depending upon prosecutorial discretion. Thus, the law considers it a wobbler. In addition, if it is charged as a felony, it is considered a serious felony and a strike under the law, and thus has consequences that reach far beyond the case at hand. When a prosecutor insists on bringing charges, the defendant needs an attorney who will fight at every stage of the proceedings to minimize the devastating effects of a conviction.
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