In Re S.W.: Context is Critical When Proving Criminal Threat

I have never been a fan of D.C.’s “threats to do bodily harm” statute.

For one thing, it criminalizes behavior that is already covered under the assault statute.  After all, is there any real difference between threatening to hurt another person and intending to frighten someone?  For another, with almost identical language in both the felony and misdemeanor threats statutes, it is virtually impossible to predict what behavior could earn you up to 6 months in the slammer and what actions could subject you to 20 years. Finally, the statute could be construed to cover purely innocent behavior.  As I noted the last time I complained about the statute:

Taken out of context, any type of threat to do someone bodily harm could be argued to meet the plain language of the statute.  Ours is a great but not perfect world.  Selectively subjecting people to criminal liability for uttering the types of things that are said all the time verges on the ridiculous.

A recent decision by the D.C. Court of Appeals, In re S.W., 45 A.3d 151 (D.C. 2012), should go a long way toward addressing the third complaint.  Emphasizing the importance of context in defining the elements of the offense, the opinion is also full of defense-friendly quotations for motions, trial and appellate argument.

Cherie Gardner, the complainant in this case and the government’s only witness at trial, was upset after a fire damaged her house.  Coming out onto the street immediately after the fire, she engaged in some back-and-forth with S.W., a juvenile, and some other young men on the street.  Gardner did not think much of this initial exchange.  Unable to recall at trial exactly what S.W. said, she did remember that it was not anything “threatening.”

Gardner was sitting outside with some neighbors the following night when S.W. and three or four of his friends approached.  S.W. walked back and forth on the sidewalk in front of her three or four times, singing a modified version of a Lil Wayne song.  The modified song included the words “we will set this whole block on fire . . . we’ll set your house on fire.”  Although S.W. seemed to be performing primarily for his friends who were laughing, Gardner testified that this made her feel “scared.”  The reason she thought S.W. could be serious was because of the fire the day before.

The Court of Appeals noted that, in order to secure a conviction for criminal threats, the government needs to prove that (1) the defendant uttered words to another person, (2) the words were of such a nature to cause the “ordinary hearer” reasonably to believe that the threatened harm would take place, and (3) the defendant intended to utter the words as a threat.  The Court then held:

With respect to the second element, our cases have stressed that the context in which words are spoken is critical . . . An actor’s pronouncement from the stage, “The first thing we do, let’s kill all the lawyers,” cannot reasonably be perceived as a threat by the bar members of the audience.  Similarly, the utterance “I’m going to kill you,” when stated, with a laugh, to a friend after the friend has somehow discomfited the speaker cannot reasonably be perceived as a threat.  A threat is more than language in a vacuum.  It is not always reasonable – and sometimes it is patently irrational – to take every pronouncement at face value.

Addressing the First Amendment ramifications of the statute, the Court held that:

. . . speech is only a “true threat” and therefore unprotected under the Constitution if an “ordinary reasonable recipient who is familiar with the context [of the statement] would interpret” it as a “serious expression of an intent to cause a present or future harm.”

Finally, the Court laid out three “recurring fact-patterns” in which the Court would be more likely to find that the defendant was inclined to do harm and that the threat should be taken seriously.  The first situation would be one in which there was a history of some type of volatile or hostile relationship between the defendant and complainant.  The second situation would be when the statements were “were aimed at avoiding or subverting prosecution for other crimes.”  The final “fact-pattern” would involve statements to law enforcement officers acting in the course of duty.

The fact-pattern in this case did not fall within any of these three scenarios.  There was no history of animosity between S.W. and Gardner.  S.W. was not being prosecuted for anything at the time of the alleged threat.  And Gardner was not a police officer acting in the course of duty.  S.W.’s actions, the Court concluded, appeared to be an attempt to amuse his friends, not to scare or intimidate Gardner.  Thus, while “less than perfectly sensitive,” S.W.’s speech was not criminal.  The adjudication of delinquency was reversed.