What Constitutes Terroristic Threatening?

terroristic-threateningTerroristic threatening is recklessly or intentionally threatening to commit a violent crime for the purpose of terrorizing another, causing public panic, or causing the evacuation or disruption of a public space or facility. Some state laws are narrow, specifying that the threat must be very specific and direct, while other states adopt a looser approach, allowing even negligently made threats to be a crime.

Threatening words alone can suffice to qualify a person for a charge of terroristic threatening. For example, a defendant, who said to his victim, “Do you want to live?’ in an effort to keep her quiet during a rape, was charged not only with the rape but for making a criminal terroristic threat in Allen v. State, (Del. 1982). A Wisconsin man who discharged a gun and was feared to be suicidal said that if he chose to shoot himself, he would first shoot the judge, a “brain-dead son of a bitch,” after the judge had found him in contempt of court for failure to pay child support. He was convicted for threatening a judge, with his conviction being based on both statements and conduct, and was affirmed in State v. Perkins, (Wis. App. 2000).

A threat can also be inferred from a physical act or innuendo of language. During a brawl among two officers and a burglary suspect, plus the suspect’s aunt, a revolver belonging to one of the officers was pulled from its holster and turned on that officer by the defendant. As the officer attempted to retreat, the defendant shot him several times. The second officer, still on the ground struggling with the defendant’s aunt, turned at the sound of the shots and noticed that the defendant was three or four feet away from him, and was the loaded gun at his chest. The defendant repeated, “Let her go,” and when the officer attempted to get up, the defendant quickly approached, gradually backed off and ran. Besides the assault on the first officer, the defendant was guilty of terroristic threatening of the second officer, based on his physical acts and the implication of his words, State v. Tillman, (Neb. App. 1993).

The most common definition of a terroristic or criminal threat has five elements:

  1. Someone willfully threatens to commit a crime that will result in death or great bodily harm. This would be a threat that is of a highly dangerous nature.
  2. The threat is made with the specific intent that it be taken as a threat. This means someone makes a threat and even if there is no actual intent to carry it out, it is still a crime (i.e., a threat to blow up a school).
  3. The threat is so unequivocal (a direct statement such as, “I will blow up the school,” as opposed to, “I can blow up the school”), unconditional (i.e., “If you…then, I’ll . . .), specific (not vague) as to convey a gravity of purpose and the immediate prospect of execution.
  4. The threat actually caused fear in the victim. This means people actually believe the threat is real.
  5. The fear is reasonable. This means that the fear generated by the threat is a fear that any reasonable person in the victim’s situation would feel.

Terrorist threatening has taken on new meanings since the terrorist attacks of 9/11 in the United States. And although the law is a general law that can be used to prosecute terrorists, it has more often been used to prosecute situations that involve domestic violence, hate crimes, bomb threats, and school violence. Consequently, state laws prohibiting terroristic threats must be narrow in scope so as to avoid infringing upon First Amendment rights. Only when a person threatens a crime that meets specific requirements can the person be prosecuted for terroristic threatening. To distinguish between protected First Amendment speech and unprotected criminal threats, courts look closely at the context in which the words are spoken and the surrounding circumstances.

The penalties for making a terrorist threat will depend on what state the offense occurs in and whether the perpetrator is charged with a federal or state crime. Sometimes the punishment can be as little as a year in jail. In other instances (especially under federal law), the punishments can be extremely severe. Individuals who threaten the use of a biological toxin can receive life in prison. In addition, the law provides for up to five years in prison for mailing communications that contain any threat to injure the addressee or any other person, and five years for those who lie to law enforcement officials about terrorist hoaxes.

Defenses for terroristic threatening usually center around the First Amendment rights of the individual and that individual’s right to free speech.

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