There are two forms of the criminal offense of “threats” in Washington, D.C.: (1) threats to do bodily injury, and (2) threats to kidnap or injure a person or damage his property.
“Threats to do bodily injury” is a misdemeanor offense punishable by up to 6 months in prison and/or maximum fine of $1,000. In order to secure a conviction for this offense, the government must prove beyond a reasonable doubt 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. D.C. Criminal Code § 22-407.
If the words were of such a nature to put a reasonable person in fear of being kidnapped or seriously injured or of having his property damaged, then the offense can be charged as a felony offense, punishable by imprisonment of up to 20 years and a $5000 fine. D.C. Crimes Code § 22-1810.
A primary defense to this charge is that the defendant’s words constituted protected speech under the First Amendment. Alternatively, the defendant can argue that he/she was kidding or that the hearer should have understood from the context in which the words were spoken that the words constituted mere puffery or hyperbole.
A number of recent cases have clarified the different elements of this offense. In Carrell v. United States, for example, the D.C. Court of Appeals held that it is not enough for the government to prove that the defendant simply uttered the words that constituted the threat. The government must also establish “that the defendant acted with the purpose to threaten or with knowledge that his words would be perceived as a threat.” 165 A.3d 314, 324 (D.C. 2017)(en banc).
The Court held in In re S.W. that 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.” 45 A.3d 151, 156 (D.C. 2012). In other words, context is important.
The D.C. Court of Appeals held in Thomas v. United States, that a defendant must have the ability to follow through on a threat in order for the threat to be considered criminal. The Court found in Thomas that, in order for the defendant to have followed through on her threat to “slap” the “bitch ass” of an officer with his own gun, the defendant would have had to break out of her handcuffs, push back two police officers and then grabbed the firearm off the officer’s hip. __ A.3d __ (D.C. 2021)
Angry words directed at police officer, uttered in frustration and while defendant was handcuffed and sitting on curb, do not constitute a criminal threat. Wrote the D.C. Court of Appeals in Milon C. High v. United States, 128 A.3d 1017 (D.C. 2015), hypothetical statements about possible future actions do not rise to the level of criminal culpability.
Most recently, the U.S. Supreme Court held in Counterman v. Colorado, 143 S.Ct. 2106 (2023), that, in order to secure a conviction for “true threats,” the prosecution must prove not only that a reasonable person would have interpreted the words as threatening but also that the words were spoken purposefully, knowingly, or recklessly to convey a threat.
A person acts purposefully when he consciously desires a result — in this case, when he wants his words to be perceived as threats.
A person acts knowingly when he is aware that a result is practically certain to follow — in this case, when he knows to a practical certainty that others will take his words as threats.
Finally, a person acts recklessly when he consciously disregards a substantial risk that the conduct will cause harm to another. That means in this context that the speaker is aware that others could regard his statements as threatening violence and delivers them anyway.