Not legal advice - Emphasis added
say "threat" until you know this about how that term is misused,
and about the associated risks.
"True threat" defined: (audio on TalkShoe)
This exercise seeks to clarify what conduct constitutes a violation of federal criminal statutes that prohibit threats of unlawful violence. You've likely noticed how the term "threat" is recklessly applied to obviously innocent conduct, by the media and others, but here you'll see that there is a very specific and plain threshold and formula for determining probable cause that an unlawful threat has been made.
This exercise is focused on the 9th Circuit and cannot be read to govern altogether how threat statutes are enforced across the country on other circuits. For the purposes of other circuits, an analogous compilation of authorities from one's own circuit must be assembled and carefully reviewed.
The law punishes what it calls a "true threat," which must be a threat to commit an act of unlawful violence conveyed in first person context. "I'm going to stab you with this knife" is an example of such a threat. "I'm going to incite somebody to stab you with a knife," is not such a threat:
"But, as we have explained, incitement to kill or injure a presidential candidate does not qualify as an offense under § 879(a)(3). (fn.23 omitted)."
See US v. Bagdasarian, 652 F.3d 1113, 1123 (CA9 2011). And -
"The Fourth Circuit has written that "an essential element of guilt [under § 871, which punishes threats against the President or successors to the presidency] is a present intention either to injure ... or to incite others to injure," but added that "[m]uch of what we say here is dicta." United States v. Patillo, 438 F.2d 13, 16 (4th Cir.1971) (en banc). No other circuit has concluded that incitement can be punished under a threat statute, and over forty years ago, in a case since cited approvingly in almost every presidential threat case in our circuit, we expressed doubt that § 871 makes criminal an intention or tendency to encourage others to injure the President. Roy, 416 F.2d at 877. We explained that "if Congress desired to prevent incitement of others to assault the President, then it could have limited the statute to make it a crime to incite or induce others to assault or attempt to assault the President." Id. Having previously "look[ed] for guidance," in construing § 879, to Roy's interpretation of the "closely analogous" § 871, Gordon, 974 F.2d at 1117, we here follow Roy in refusing to find that incitement qualifies as an offense under § 879. We also reach that conclusion independently on the basis of the plain language of the statute. See 18 U.S.C. § 879(a)(3) (making it a crime to "knowingly and willfully threaten to kill, kidnap, or inflict bodily harm upon ... a major candidate for the office of President."); see also supra at 1115 n. 9 (discussing imminence requirement for incitement under the First Amendment)."
US v. Bagdasarian, id. at fn.18.
Precedent must be observed and serves as a constraint and as guidance. "But unless we wish anarchy to prevail within the federal judicial system, a precedent of this Court must be followed by the lower federal courts no matter how misguided the judges of those courts may think it to be." (See Hutto v. Davis, 454 US 370, 375 (1982); see also Hart v. Massanari, 266 F.3d 1155 passim (CA9 2001)).
"[W]e have referred to the Court of Appeals when enquiring whether a right was "clearly established." "
See United States v. Lanier, 520 US 259, 269, 117 S.Ct. 1219 (1997) (citing Mitchell v. Forsyth, 427 US 511, 533, 105 S.Ct. 2806 (1985); Davis v. Scherer, 468 US 183, 191-92, 104 S.Ct. 3012 (1984); Elder v. Halloway, 510 US 510, 516, 114 S.Ct. 1019 (1994) (treating Court of Appeals decisions as "relevant authority" that must be considered as part of qualified immunity enquiry)).
Key: For the purposes of federal criminal threat statutes, a "true threat" is a threat to commit an act of unlawful violence against an individual or group of individuals, which must be conveyed or uttered in first-person context. (See US v. Bagdasarian, 652 F.3d 1113 (CA9 2011) (overturning conviction under 18 USC § 879, citing Virginia v. Black, 538 US 343 (2003)); US v. Twine, 853 F.2d 676 (CA9 1988); US v. Sutcliffe, 505 F.3d 944 (CA9 2007); Sheehan v. Gregoire, 272 F.Supp.2d 1135, 1149-50 (US Dist. Court, Western District of WA at Seattle 2003) (citing Planned Parenthood, 290 F.3d 1063); United States v. Cassell, 408 F.3d 622, 631 (CA9 2004) (quoting Virginia v. Black, 538 US 343, 123 S.Ct. 1536 (2003)); Planned Parenthood of the Columbia/Willamette, Inc. v. Am. Coalition of Life Activists, 290 F.3d 1058, (CA9 2002); Planned Parenthood of the Columbia/Willamette, Inc. v. Am. Coalition of Life Activists, 422 F.3d 949 (CA9 2005)). The act of unlawful violence communicated or threatened must be an act to be carried out "by the defendant."
"Nevertheless, Cassel's objection contains a kernel of merit. For while the jury instruction correctly stated that "intimidation" involves "words and conduct that would put an ordinary, reasonable person in fear or apprehension," it failed to specify that the statute requires "fear or apprehension" of injury inflicted by the defendant. Whether the threat is of injury to person or property, there is no doubt that it must be a threat of injury brought about-rather than merely predicted-by the defendant. (fn. omitted) Indeed, the First Amendment requires as much. See Planned Parenthood, 290 F.3d at 1076.
Again, this error in the jury instruction cannot be said to be harmless. Most of the statements Cassel made to potential buyers did not suggest any threat of force on his part. For example, his claim that the area was inhabited by devil worshipers and producers of illegal drugs could fall within the court's instruction that intimidation consists of words and conduct that "would put an ordinary, reasonable person in fear or apprehension." Such claims, however, cannot constitute intimidation under § 1860, because they do not involve a threat of harm to person or property inflicted by the defendant. Accordingly, Cassel is entitled to a new trial on this ground as well."
See US v. Cassell, 408 F.3d 622, 636-37 (CA9 2005).
Below is another threat statute, but one which is general in its scope, not restricted to former or current gov't employees or officers. The criteria for what constitutes a "true threat" is the same under this provision:
18 USC § 875 Interstate communications.-
(c) Whoever transmits in interstate or foreign commerce any communication containing any threat to kidnap any person or any threat to injure the person of another, shall be fined under this title or imprisoned not more than five years, or both.
"A conviction under § 875(c) requires the specific intent to threaten, United States v. Twine, 853 F.2d 676, 680 (9th Cir. 1988), and only true threats may be prohibited, see Virginia v. Black, 538 U.S. 343, 359-60, 123 S.Ct. 1536 (2003)."
See US v. Sutcliffe, 505 F.3d 944, 954 (CA9 2007).
State law authorizes the citizen's arrest of a felon:
RCW § 9A.16.020 Use of force - When lawful.- The use, attempt, or offer to use force upon or toward the person of another is not unlawful in the following cases:
(1) whenever necessarily used by a public officer[.]
(2) whenever necessarily used by a person arresting one who has committed a felony and delivering him or her to a public officer competent to receive him or her into custody.
Subsection (1) of the WA state statute above is the source of law enforcement's authority to make an arrest. (See Brooks v. City of Seattle, 599 F.3d 1018 (CA9 2009); Wakagira v. City of Seattle, #08-1108-JLR (USDC W.D. of WA at Seattle 8/3/09); Martinez v. US, #08-265-JLR (USDC W.D. of WA at Seattle 8/3/09); John v . Berry, 469 F.Supp. 922 (2006); Logan v. Weatherly, #CV-04-214-FVS (USDC E.D. of WA at Spokane 6/6/06); Logan v. City of Pullman Police Dept., #CV-04-214 FVS (USDC E.D. of WA at Spokane 6/13/06)). And so you send an email to the felon who stole your car . . .
*Begin Aug. 30, 2010 email to the felon:
"On Friday, Sept. 3, 2010, I, __________________________, will apply to a panel of Americans to offer evidence of felonious conduct on your part, which constitutes an ongoing threat to Public Safety, hoping to cause the issuance of a WRIT OF PROBABLE CAUSE to substantiate the arrest of your person under RCW 9A.16.020.
Upon the issuance of said Writ, 50 or more concerned Citizens with knowledge of your crimes will enter your home and arrest you, to take you to competent authorities as provided by law. DO NOT RESIST as these Citizens will be heavily armed and will meet all resistance with all necessary force, as provided by law. IF YOU HAVE EVIDENCE TO THE CONTRARY you are hereby notified that the hearing upon my application for said Writ will take place at: 5050 Myway Hiway, Anytown, USA 12345. If you default or otherwise do not appear, and if my application is granted, I would advise you to keep your front and back doors to your home UNLOCKED to better facilitate your lawful arrest."
*End Aug. 30, 2010 email to known felon, capitalization not added.
Is the email legal? "Do not resist" indicates a desire and intent that nobody incur an injury of any type. "By law" indicates a belief that it is legal to arrest the felon. Identify indications that the essential elements of the threat statute 18 USC § 875(c) are borne out by the language of the email, above. Is there criminal intent when a statute that authorizes the arrest of a felon is actually cited directly in the email? Is a "lawful arrest" an act of unlawful violence? Is "these citizens" a first person reference?
"Section 875(c), as noted, requires proof that a communication was transmitted and that it contained a threat. The "presumption in favor of a scienter requirement should apply to each of the statutory elements that criminalize otherwise innocent conduct." X-Citement Video, 513 U.S., at 72, 115 S.Ct. 464 (emphasis added). The parties agree that a defendant under Section 875(c) must know that he is transmitting a communication. But communicating something is not what makes the conduct "wrongful." Here "the crucial element separating legal innocence from wrongful conduct" is the threatening nature of the communication. Id., at 73, 115 S.Ct. 464. The mental state requirement must therefore apply to the fact that the communication contains a threat.
Elonis's conviction, however, was premised solely on how his posts would be understood by a reasonable person. Such a "reasonable person" standard is a familiar feature of civil liability in tort law, but is inconsistent with "the conventional requirement for criminal conduct - awareness of some wrongdoing." Staples, 511 U.S., at 606-607, 114 S.Ct. 1793 (quoting United States v. Dotterweich, 320 U.S. 277, 281, 64 S.Ct. 134, 88 L.Ed. 48 (1943); emphasis added). Having liability turn on whether a "reasonable person" regards the communication as a threat - regardless of what the defendant thinks - "reduces culpability on the all-important element of the crime to negligence," Jeffries, 692 F.3d, at 484 (Sutton, J., dubitante), and we "have long been reluctant to infer that a negligence standard was intended in criminal statutes," Rogers v. United States, 422 U.S. 35, 47, 95 S.Ct. 2091, 45 L.Ed.2d 1 (1975) (Marshall, J., concurring) (citing Morissette, 342 U.S. 246, 72 S.Ct. 240, 96 L.Ed. 288). See 1 C. Torcia, Wharton's Criminal Law § 27, pp. 171-172 (15th ed. 1993); Cochran v. United States, 157 U.S. 286, 294, 15 S.Ct. 628, 39 L.Ed. 704 (1895) (defendant could face "liability in a civil action for negligence, but he could only be held criminally for an evil intent actually existing in his mind"). Under these principles, "what [Elonis] thinks" does matter. App. 286."
See United States v. Elonis, 575 US ___, 135 S.Ct. 2001, 2011 (2015). And -
"Whether a criminal statute requires the Government to prove that the defendant acted knowingly is a question of congressional intent. See Staples v. United States, 511 U.S. 600, 605, 114 S.Ct. 1793, 128 L.Ed.2d 608 (1994). In determining Congress' intent, we start from a longstanding presumption, traceable to the common law, that Congress intends to require a defendant to possess a culpable mental state regarding "each of the statutory elements that criminalize otherwise innocent conduct." United States v. X-Citement Video, Inc., 513 U.S. 64, 72, 115 S.Ct. 464, 130 L.Ed.2d 372 (1994); see also Morissette v. United States, 342 U.S. 246, 256-258, 72 S.Ct. 240, 96 L.Ed. 288 (1952). We normally characterize this interpretive maxim as a presumption in favor of "scienter," by which we mean a presumption that criminal statutes require the degree of knowledge sufficient to "mak[e] a person legally responsible for the consequences of his or her act or omission." Black's Law Dictionary 1547 (10th ed. 2014)."
See Rehaif v. United States (online), (pdf format) 139 S.Ct. 2191, 2195 (2019). And -
"The manner in which the courts ordinarily interpret criminal statutes is fully consistent with this ordinary English usage. That is to say courts ordinarily read a phrase in a criminal statute that introduces the elements of a crime with the word "knowingly" as applying that word to each element. United States v. X-Citement Video, Inc., 513 U.S. 64, 79, 115 S.Ct. 464, 130 L.Ed.2d 372 (1994) (STEVENS, J., concurring). For example, in Liparota v. United States, 471 U.S. 419, 105 S.Ct. 2084, 85 L.Ed.2d 434 (1985), this Court interpreted a federal food stamp statute that said, "'whoever knowingly uses, transfers, acquires, alters, or possesses coupons or authorization cards in any manner not authorized by [law]'" is subject to imprisonment. Id., at 420, n.1, 105 S.Ct. 2084. The question was whether the word "knowingly" applied to the phrase "in any manner not authorized by [law]." Id., at 423, 105 S.Ct. 2084. The Court held that it did, id., at 433, 105 S.Ct. 2084, despite the legal cliche "ignorance of the law is no excuse."
See Flores-Figueroa v. United States, 556 US 646, 129 S.Ct. 1886, 1891, 173 L.Ed.2d 853 (2009). And -
"Consider the law respecting mens rea. In general, courts interpret criminal statutes to require that a defendant possess a mens rea, or guilty mind, as to every element of an offense. See Elonis v. United States, 575 U.S. ___, ___, 135 S.Ct. 2001, 2009-2010, 192 L.Ed.2d 1 (2015). That is so even when the "statute by its terms does not contain" any demand of that kind. United States v. X-Citement Video, Inc., 513 U.S. 64, 70, 115 S.Ct. 464, 130 L.Ed.2d 372 (1994). In such cases, courts read the statute against a "background rule" that the defendant must know each fact making his conduct illegal. Staples v. United States, 511 U.S. 600, 619, 114 S.Ct. 1793, 128 L.Ed.2d 608 (1994). Or otherwise said, they infer, absent an express indication to the contrary, that Congress intended such a mental-state requirement."
See Torres v. Lynch, 136 S.Ct. 1619, 1630-31 (May 2016). And -
"It is fundamental that a person is not criminally responsible unless criminal intent accompanies the wrongful act. Morissette v. United States, 342 U.S. 246, 251, 72 S.Ct. 240, 244, 96 L.Ed. 288 (1952) (stating that a crime is the "concurrence of an evil-meaning mind with an evil-doing hand"). Consequently, to have probable cause to believe that a crime has been committed, an arresting officer would have to reasonably believe that Sharon Gasho intended to defy and frustrate the seizure at the time that she removed the logbooks."
See Gasho v. US, 39 F.3d 1420, 1429 (CA9 1994). And -
"We turn now to Cassel's claim that 18 U.S.C. § 1860 is facially unconstitutional because it fails to require the requisite subjective intent. His argument relies on a literal reading of the statute: (fn.11 omitted) taken literally, the phrase "[w]hoever, by intimidation ... hinders [or] prevents [a bid on public land]" would apply to anyone whose conduct happened to intimidate a potential bidder, whether or not the intimidation was intentional.
Yet this literal reading ignores a cardinal principle of statutory construction: "The existence of a mens rea is the rule of, rather than the exception to, the principles of Anglo-American criminal jurisprudence." United States v. Pasillas-Gaytan, 192 F.3d 864, 868 (9th Cir. 1999) (quoting Dennis v. United States, 341 U.S. 494, 500, 71 S.Ct. 857, 95 L.Ed. 1137 (1951)). Thus, except in unusual circumstances, we construe a criminal statute to include a mens rea element even when none appears on the face of the statute. (fn.12 omitted) See, e.g., id. (construing 18 U.S.C. § 1425, which criminalizes the unlawful procurement of naturalization, to include a requirement that the defendant either know he is not eligible for naturalization or knowingly lie in his application).
Cassel's argument is all the more untenable in light of the principle that "every reasonable construction must be resorted to, in order to save a statute from unconstitutionality." (cites omitted). Having held that intent to threaten is a constitutionally necessary element of a statute punishing threats, we do not hesitate to construe 18 U.S.C. § 1860 to require such intent. Cassel's argument that the statute is facially unconstitutional therefore fails."
See US v. Cassell, 408 F.3d 622, 634-35 (CA9 2005).
With all you now know, taught to you directly by appellate and Supreme Court judges and Justices, did your email to the felon violate 18 USC § 875(c)? Does this plea agreement (below) accuse you of a crime, under § 875(c)?
"Defendant admits that he threatened to cause others to enter the felon's home to "arrest" him by law for offenses Defendant felt had been committed against him by police officers working for the City of Podungk. Defendant further admits that he advised the felon not to resist, as the people he was working with would be heavily armed and authorized to use force by law."
A plea agreement is a contract and is enforced as such. (See US v. Allen, 434 F.3d 1166, 1174 (CA9 2005) (citing US v. Mondragon, 228 F.3d 978, 980 (CA9 2000), and US v. Johnson, 187 F.3d 1129, 1134 (CA9 1999)). Does the email message to the felon constitute a "true threat"? A citizen's arrest is legal so there's no unlawful violence, causing others to act is legal even if unlawful violence is their plan, and you obviously lacked criminal intent; not guilty. The U.S. Dept. of Justice wrote that plea in an actual criminal case over the email message, above. Did you notice that the DOJ put 'arrest' in quotation marks, like it was a fiction?
All judges and prosecutors operate under the presumption that everyone has criminal intent in whatever they do. With the knowledge that even this plain innocence didn't keep the DOJ from bringing a false charge, under a statute that carries 60 months in prison (max), please use caution in your own speech, and strictly scrutinize the use of the term "threat" by others, especially if they're talking about you. That defendant wasn't even close to violating that charging statute (18 USC § 875(c)) but he went to prison (40 months) anyway. America and the DOJ call this a victory; don't be the next victim of this corruption.
Stay not guilty.