Criminal threat requires ability to follow through

In Chantel Thomas v. United States, 249 A.3d 802 (D.C. 2021), the D.C. Court of Appeals affirmed the defendant’s conviction for Simple Assault but reversed her conviction for Attempted Criminal Threats.  

Upset that police were arresting her boyfriend, Chantel Thomas approached the officers “belligerently” and “aggressively.”  She called one of the officers names and threatened to spit on him.  She “flailed her arms” and swung at the officer, making contact with him, before two female officers put her into handcuffs and sat her down on the sidewalk.   

The female officers were standing guard over her with the male officer 10 to 12 feet away when Thomas said that she either “should” or “will” take his gun and “slap his bitch ass.”  

The swinging at and physical contact with the male officer satisfied the requirements of simple assault.  The question in this appeal was whether her words constituted the criminal offense of an attempted threat.  

(The government tends to charge “attempted threats” as opposed to the completed act of a threat so that the defendant does not have the right to a jury trial.) 

In order to prove the completed offense of a criminal threat, the government must prove (1) that the defendant uttered the words in question, (2) that “the words were of such a nature” as to cause the hearer to reasonably fear bodily harm or injury, and (3) that the defendant intended his/her words as a threat.  In order to prove an attempted threat, the government must also prove that the defendant took some overt act in pursuit of the offense.  

Telling someone that you will “slap” his/her “bitch ass” is threatening on its face. But people make idle threats all the time.  The question is whether, under the circumstances in which the words were uttered, the target of the words would reasonably fear for his/her safety.  

The problem with the government’s case is that, at the time Thomas uttered the words, it was physically impossible for her to follow through on the threat.  As the D.C. Court of Appeals put it, she would have had to “break out of her handcuffs, push past both officers in front of her, cover the distance between herself and Officer James without being stopped by any of the other officers at the scene, and grab his weapon off his own hip.”

Nor did her statement constitute an “implied future threat” to hunt the officer down whenever she was released from custody.  In other words, there was no reasonable chance that Thomas could ever execute her threat.  Her conviction for attempted threats was therefore overturned.

D.C. Superior Court Judge Patricia Broderick presided at trial.  Thomas was represented by Kelli Neptune at trial and by Russell Bikoff on appeal.