Simone Lawson
Threatening a public official is a serious federal crime under U.S. law. The First Amendment protects free speech, but credible threats—those made knowingly and willfully—are not protected. Courts evaluate the context, intent, and impact of the statement to determine whether it constitutes a true threat. This includes statements that a reasonable recipient would consider threatening under the circumstances, even if the defendant did not intend to carry out the threat. Threats may be written, oral, or implied by conduct, and can include statements made to a public official's family or staff. The prosecution must prove specific intent to intimidate or interfere with official duties, and that the defendant knew the victim was a protected individual. If convicted, penalties can include significant prison time and fines.
| Characteristics | Values |
|---|---|
| Nature of threat | Must be a true threat, i.e., a reasonable recipient would consider it a threat under the circumstances. |
| Communication medium | Threats may be written, oral, implied, or made through another person. |
| Intent | The defendant must have intended their statement to be taken as a threat. |
| Knowledge | The defendant must have known that the person they threatened was a protected individual. |
| Ability | The defendant must have had the apparent ability to carry out the threat. |
| Target | The threat must be directed at a protected individual or a member of their immediate family. |
| Type of official | Federal law protects U.S. judges, federal law enforcement officers, and certain executive and legislative officials. |
| Type of threat | Threats to kill, kidnap, or inflict bodily harm are prohibited. |
| Penalties | Penalties may include imprisonment, fines, or both. |
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What You'll Learn
Threats to life or serious bodily harm
Penal Code Section 76 aims to safeguard the government by protecting elected officials and members of the criminal justice system from threats. It states that anyone who willingly threatens the life or threatens serious bodily harm to these individuals or their staff and immediate family is subject to prosecution. "Serious bodily harm" includes serious physical injury or a serious traumatic condition. The prosecution must prove beyond a reasonable doubt that the defendant willingly threatened to kill or cause serious bodily injury and that they had the knowledge that the person they threatened was a protected individual.
Additionally, 18 U.S. Code 115 makes it a federal crime to threaten, assault, kidnap, or murder a federal official or their immediate family members with the intent to impede, intimidate, interfere, or retaliate against their official duties. This includes current and former officials and their families. The threat does not need to be physically carried out to violate the law, and the prosecution must prove the communication of a clear intent to harm.
It is important to note that allegations of unlawful threats to public officials are often defensible, as vague statements of frustration can be mischaracterized as threats. In such cases, the defense may argue that the alleged threat was vague, not credible, or made in jest or anger without the actual intent to intimidate.
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Intent to impede, intimidate, interfere or retaliate
Threats against public officials are a serious matter and are treated as a federal crime. The intent to impede, intimidate, interfere with, or retaliate against a public official is a key element that must be proven for a conviction. Here are some important considerations regarding this aspect:
Specific Intent:
The prosecution must establish beyond a reasonable doubt that the defendant had the "specific intent" to impede, intimidate, interfere with, or retaliate against the official's duties. This means that the defendant's words or actions were deliberately meant to achieve one of these outcomes. The defence may argue that the alleged threat was made in jest, as a joke, or in anger without any actual intent, which can cast doubt on the prosecution's case.
Communication of the Threat:
The threat can be communicated directly or indirectly through another person. It can be expressed orally, in writing, through gestures, or via various channels such as in-person, phone, or online (e.g., social media). The exact language and context of the alleged threat are crucial and should be scrutinised closely.
Knowledge of Protected Status:
The prosecution must also prove that the defendant knew that the individual they threatened was a protected official or a member of their immediate family. This knowledge is an essential element of the crime.
Ability to Carry Out the Threat:
While it is not necessary for the defendant to have the ability to carry out the threat, it is a factor that may be considered. If the defendant had the apparent capacity to act on the threat, it may strengthen the case against them.
Mental State and Impairment:
The defence may explore the defendant's mental state at the time of the communication. Factors such as physical or drug-related impairment may be considered in evaluating the defendant's intent and understanding of their actions.
Defendant's Silence:
If an individual is contacted by law enforcement regarding an unlawful threat, they have the right to remain silent and request an attorney. This is crucial, as admissions by the defendant regarding their intent and mental state can significantly impact the case.
In summary, the intent to impede, intimidate, interfere with, or retaliate against a public official is a critical aspect of threatening a public official. The prosecution must prove this intent beyond a reasonable doubt, while the defence may employ various strategies to cast doubt on the intent or credibility of the threat.
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Insufficiency of threat
Vague statements or expressions of frustration can sometimes be misconstrued as threats. It is important to scrutinize the specific language used and determine if it lacks clarity or constitutes a credible intent to cause harm. For example, statements made in jest, as a joke, or in anger without actual intent may not be considered true threats.
The defence counsel may challenge whether the defendant "willingly" intended to put a protected person in fear if the language of the alleged threat is ambiguous or lacks sufficient clarity. The defence may argue that the threat was not specific or credible enough to be perceived as a serious intent to harm.
Additionally, the mental state and intent of the defendant at the time of communication are crucial factors. The prosecution must prove "specific intent" to intimidate or interfere with the official's duties. If the defendant's mental state was impaired due to physical or drug-related influences, it could be a mitigating factor.
The knowledge of the defendant about the protected status of the individual is also essential. The government must prove that the defendant was aware that the alleged victim belonged to a protected class of individuals, such as federal officials or their families.
In summary, insufficiency of threat considers the clarity, credibility, context, intent, and knowledge associated with the alleged threat. These factors help determine whether a statement or action rises to the level of a true threat against a public official, warranting legal consequences.
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Lack of intent
The prosecution must prove "specific intent" on the part of the defendant to put the protected individual in fear. The language and circumstances of an alleged threat may undermine the prosecution's theory that the defendant's words were intended to be threatening.
For instance, vague statements of frustration, expressed in anger following an unpleasant experience with the criminal justice system, may be mischaracterized as unlawful threats. If a threat is made in jest, as a joke, or in a moment of anger without actual intent, this can undermine the government's case.
Defense counsel should explore the defendant's mental state, including physical or drug-related impairment, when exploring their intent at the time of the communication. The defendant's mental state is a critical factor in determining their "intent" and "mental state".
Courts evaluate the context, intent, and impact of the statement to determine whether it constitutes a "true threat". A statement to a judge that "You and your family are going to die" would be regarded as a true threat, even if the defendant claimed that he meant it as a biological fact.
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Doxing and cyberstalking
The impact of doxing can be severe, as it can lead to threats of violence, loss of employment, and other negative consequences. Victims may be targeted for further harassment, such as receiving unwanted mail or food deliveries, or even "swatting," which involves dispatching armed police teams to their addresses through false emergency reports. In some cases, doxing has resulted in death threats and individuals being forced to delete their online presence or hire additional security.
Cyberstalking is a related issue, where perpetrators obtain private information, such as nude photos, and use it to harass and threaten public officials. This was the case with Juan McCullum, a former staff member of Congressional delegate Stacey Plaskett and Representative Frederica Wilson, who was charged with illegally obtaining private nude photos.
The lack of specific legislation prohibiting doxing in some countries, such as the United States, has led to ongoing debates about free speech and privacy rights. While doxing may fall under existing laws related to stalking, harassment, and extortion, the absence of explicit legislation makes it challenging to prosecute offenders. However, victims can pursue civil suits if they can locate the doxer, although this can be difficult.
To address these issues, some countries have introduced or proposed legislation to criminalize doxing. For example, Hong Kong has made doxing a criminal offense, punishable by imprisonment and fines. Similarly, Germany added doxing to its criminal code, with penalties of up to three years in prison or fines for publishing non-freely accessible data. Australia has also announced plans to criminalize doxing due to an incident where the personal details of over 600 Jewish Australians were leaked, resulting in threats and harm to their reputation. These legislative efforts aim to protect individuals, including public officials, from the harmful consequences of doxing and cyberstalking.
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Frequently asked questions
A threat is a statement, gesture, or other form of communication that expresses an intent to harm. It can be made in person, in writing, over the phone, or online.
Federal law in the U.S. protects public officials, including U.S. judges, federal law enforcement officers, and certain executive and legislative officials, as well as their immediate family members and staff. Former officials are also protected.
Courts evaluate the context, intent, and impact of a statement to determine if it constitutes a "true threat". The statement must be made knowingly and willfully, with the intent to impede, intimidate, interfere, or retaliate against the official's duties.
Examples include personal insults, doxxing, cyberstalking, and public posts calling for harm or death.
If you are contacted by law enforcement, it is important to decline to give a statement before speaking to an attorney and invoke your right to remain silent. Common defenses include lack of intent to intimidate, ambiguity of the threat, and freedom of speech.
