One of the most frequently charged and ultimately difficult charges to prove in Pennsylvania is Terroristic Threats. Usually, it is criminalizing speech, not necessarily action. Meaning simply by saying something, the government may come after you. It provides for a fascinating intersection of Freedom of Speech and criminal conduct. Let’s learn some more.
Under Freedom of Speech principles and both the US and PA state constitution, ordinarily the government cannot criminalize speech. It is a fundamental right to speak. However, there are very narrow exceptions to this general unqualified right to speak. In PA, the charge of Terroristic Threats may (but does not always) satisfy the limited exception to criminalize speech.
Additional recommended reading
What is the crime of Terroristic Threats in Pennsylvania?
An individual can commit the offense of terroristic threats in one of three ways.
- If the person communicates a threat to commit any crime of violence with the intent to terrorize another.
- A person commits the crime of terroristic threats if the person communicates a threat to cause evacuation of a building, place of assembly or facility of public transportation.
- A person commits the crime of terroristic threats if the person communicates a threat to otherwise cause serious public inconvenience with reckless disregard of the risk of causing such terror or inconvenience.
The law defines “communicate” as to express in person or by written or electronic means, including telephone, electronic mail, internet, facsimile, telex and similar transmissions (including social media now).
Furthermore, a comment in the statute clarifies the statutes intent as to impose criminal liability on persons who make threats which seriously impair personal security of public convenience.
If proven, you can be held criminally legally liable for the acts of others when it comes to terroristic threats. This is especially prevalent in the case of PFA cases. The target of the PFA may not have had the contact but did direct another to stalk or terrorize the other with words and conduct that suggest or directly mean a crime of violence. The trick for the government is to connect the other party’s actions to you. We have seen the government try to do this through text messages, Facebook messenger or other electronic means. There are obviously authenticity issues that the government will have in trying to admit that evidence, if your attorney knows about that. If not, then, yes, the government can use your own words against you at trial.
For a lawful conviction of terroristic threats, the government does not have to prove direct communication of the threat to the alleged victim.
Rap lyrics as terroristic threats
In a series of cases involving rap lyrics, our various appeals courts have held that generalized threats (meaning no specific names, but identifiable groups of people: i.e., the police) of violence are in fact illegal. The courts have rationalized this as illegal because it is deliberate (i.e., not super of the moment) and also (apparently to them) not not a recognized forum where political, social, or academic commentary occurs. (See Commonwealth v Knox “the Constitution does not provide First Amendment protection for threats that are expressed within a musical style”)
What the crime of Terroristic Threats in PA does not include
Spur-of-the-moment threats which result from anger, embarrassment, frustration or similar intense emotions is not criminal. The law recognizes that people can and do say stupid things that they do not mean out of fear, anger, embarrassment or frustration. This is what law enforcement seems to repeatedly not “get.”
Using “bad language” or curse words no matter how loud without an accompanying threat of violence is not terroristic threats.
Also, the law is not intended to criminalize private conversations that the speaker cannot reasonably believe will lead to the target of the language learning about the threat.
Although vague notions of “causing trouble” may not be enough to satisfy the element that the threat has to be related to a crime of violence, it is not necessary to prove exactly how or what specific crime of violence or level of violence is intended by the threat.
Also “drunk talk” may not be a crime depending on the circumstances. See Commonwealth v Kidd
Is a conditional threat a terroristic threat in PA?
This is a great question with a horrible answer. The answer is: it depends.
What is a conditional threat?
A conditional threat is a threat made that is predicated on some other act happening first. There is a triggering event. Some examples include:
- If you take one more step towards me, I’m going to hit you in the fucking face.
- When you decide to show up to my house, I will shoot you in the head.
- If you decide to step one foot on my property, I’m going to set my dog loose to get you.
- If you don’t move your car, I’m going to fuck you up.
What the law says about conditional threats
- The law above about things said in momentary states of passion still applies.
- Also the government must prove beyond a reasonable doubt all of the elements that we talked about above.
- However, the physical ability to carry out the threat or a belief by the persons’ threatened that a threat will be carried out is NOT an essential element of the crime of terroristic threats. The purpose behind the law is to prevent the psychological distress that follows from an invasion of another’s sense of personal security. See In the Interest of J.C.
With this context in mind, is a conditional threat a crime?
Ultimately, the answer depends on the circumstances. That means everything is in play. This also includes the personal history between the parties. Although prosecutors will jump up and down trying to keep out the alleged victim’s prior bad acts, it does go into the equation. So having an attorney who knows the law and can paint the correct picture to the judge and jury is vital.
Immigration consequences of Terroristic Threats charges
If you are not a US citizen, you need to be very aware that this crime can carry with it very negative consequences
In an unpublished decision: A lawful permanent resident was convicted of PA Terroristic Threats charge. He appealed the Board of Immigration Appeals’ (BIA) affirmation of an immigration judge’s order of removal. The 3rd Circuit Court of Appeals found that the BIA did not legally err by concluding that a threat communicated with a specific intent to terrorize was an act accompanied by a vicious motive or a corrupt mind so as to be categorically morally turpitudinous. Therefore, removal was warranted. Javier v. AG of the United States, 826 F.3d 127, (3d Cir. 2016).
Additional recommended reading:
- 18 Pa.C.S.A. § 2706.
- Self Defense in PA
- Simple Assault Charges
- Aggravated Assault Charges
- Homicide Charges
- Voluntary Manslaughter Charges
- Involuntary Manslaughter Charges
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