February 10, 2000		2000-R-0138
CRIMINAL CONDUCT UNDER CONNECTICUT'S "THREATENING" LAWS
By: Susan Price-Livingston, Research Attorney

You asked how the courts distinguish between idle and "real" threats under the state's criminal "threatening" laws. You also wanted to know how our courts have decided these cases and when the law was expanded to reach threats made by people without the present ability to carry them out.

SUMMARY

A number of Connecticut's criminal laws apply to verbal threats under some circumstances. Although the First Amendment's "true threats" doctrine prohibits states from regulating idle threats, our state courts have not used this analysis in interpreting these laws. Rather, they have resolved the pure speech cases that have come before them under the First Amendment's "fighting words" doctrine. That limitation on free speech allows states to punish face-to-face communications that are likely to provoke a violent response from their audience. The remainder of cases presented challenges to the sufficiency of the evidence offered to prove an element of the offense.

In 1963 the state's appellate division interpreted the breach of peace statute as covering a threat of future harm that the defendant had no present ability to carry out. The court reasoned that unlike assaults, threats create expectations of bodily harm that are not limited by time or distance. A 1996 appellate panel applied the same rationale to uphold a conviction under the state's general threatening law. Language in that case suggests that the statutes may not cover threats made by people who are extremely unlikely to be able to carry them out.

THREATENING STATUTES

The general threatening statute forbids three types of threatening conduct: (1) physical threats intended or attempting to make another fear imminent physical injury; (2) threats to commit any violent crime, intended to terrorize another, to cause evacuation of a building, place of assembly, or public transportation facility, or otherwise to cause serious public inconvenience, and (3) threats to commit such crimes, made in reckless disregard of the risk of causing such terror or inconvenience (CGS §53a-62).

Other state laws criminalize threats in specific circumstances (CGS §53a-62 (harassment), §53a-181b and §53-37b (hate crimes), 53a-182 (disorderly conduct), §53a-181 (breach of peace), and §53a-181a (creating a public disturbance)). We have enclosed OLR Report 99-r-0945 which describes those statutes in greater detail.

LIMITS ON FREE SPEECH

The Free Speech Clause of the U.S. Constitution generally prohibits states from punishing people for the content of their speech. Courts have used two exceptions to the general rule, the "fighting words" and "true threat" doctrines to uphold threatening statutes.

"Fighting Words" Doctrine

The "fighting words" doctrine removes constitutional protection from some threatening communications. It applies when all of the following conditions are present: (1) the speaker addresses his words directly to a specific individual, (2) the encounter is face-to-face; (3) the words he uses are likely to provoke the "average addressee" to violence under the circumstances; and (4) the threat of a violent response is imminent (Chaplinsky v. New Hampshire, 315 US 568 (1942)).

Courts applying this test must analyze the words used and the context in which the message was delivered. And they must conclude that the average person, if the target of such words, would be prone to respond immediately with violence (R.A.V. v. St. Paul, 505 US 377 (1992)).

State Court Decisions. Connecticut's state courts have held that where pure speech is the only basis for arrest, the threatening statutes can criminalize "fighting words" (State v. Szymkiewicz, 237 Conn. 613 (1996)). When both speech and physical conduct are involved, courts have determined that the First Amendment is not implicated. In those cases, juries must consider whether the words that the person used to communicate the threat, combined with his physical acts, support a finding that he intended to terrorize or make his target afraid (State v. Snead, 38 Conn. App. 326 (1995)). And they must consider whether, given the context of the communication, the victim's fear was reasonable (State v. Lo Sacco, 12 Conn. App. 431 (1987)).

"True Threats" Doctrine

A "true threat" is not protected by the First Amendment because it does not add to the public exchange of ideas (US v. Malik, 16 F.3d 45 (2d Cir.), cert. denied, 513 US 968 (1994)). "True threats" are words that a person voluntarily and intentionally uses to convey a present or future determination to inflict physical injuries on others. The words take their character as threatening or harmless from the context in which they are used, measured by the common experience of society (US v. Prochaska, 222 F.2d 1 (7^th Cir.), cert. denied, 350 US 836 (1955)).

"True threats" must also be genuine, not simply idle or careless talk, exaggeration, jests, or political hyperbole (Watts v. United States, 394 U.S. 705 (1969)). They can be made face-to-face, through third parties, by telephone, letter, or other means. There need be no imminent threat of a breach of the peace, either by violent acts of the speaker, third parties, or by the person to whom the words are directed.

Court Decisions. Connecticut state courts have not analyzed threatening statutes under the "true threats" doctrine. But our federal district and appellate courts have used this approach to uphold a substantially similar federal threatening law (U.S. v. Malik, supra (letters sent to judges making explicit reference to violence against them and writer's opponents in litigation actionable under 18 USC §876)).

THREATENER NEED NOT HAVE PRESENT ABILITY TO CARRY OUT THREAT

Our courts first ruled that a person without the present ability to carry out a threat may be prosecuted for it in State v. Boyer (2 Conn. Cir. Ct. 288 (1963)(telephone threat actionable under former breach of peace statute)).

That reasoning was reaffirmed in State v. Snead (41 Conn. App. 584 (1996)("If you go to the police, you're dead," actionable phone threat).

Language in Snead, not necessary to the holding, suggests that there may be some scenarios under which the defendant's ability to carry out the threat is too remote to be prosecuted. The example the Snead court mentioned with apparent approval was one in which the handcuffed defendant threatened a police officer while being transported to jail.

A Texas appellate court reversed his conviction, holding that the threat was not one of "imminent" bodily injury, and was conditioned on a remote event, the defendant's release from jail (Hill v. State, 844 S.W.2d 937 (Tex. App. 1992)).

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