“Touch me again, and I’m gonna knock you out.” We’re Americans. We live in a society and in a culture that is no stranger to confrontation. The fact is we love fighting. We love to watch smack talk in sports. We love to see a baseball or football coach take an umpire or referee to task, spitting and yelling with the glare of rage in their eyes. We love watching guys in a movie engage in macho banter back and forth, and this aids in character development. Even our political discourse has become a dog fight, with right and left pundits yelling over each other, and the media purposefully seeks out confrontational and divisive topics less for our information than our entertainment. For better or for worse, this affects our interaction in everyday life. When we get pissed off, and when we’re looking to make a show and stir some drama up, we use fighting words. We put on a fighting face and take stand as a character of sorts. The frank truth is nobody takes it too seriously, and everyone knows it’s mostly hot air.
You would think that wouldn’t be a crime. You would think actually hitting a guy in the face and giving him a black eye, or stealing, or damaging someone’s property would be a worse action. But guess what? At the most basic level, those are misdemeanors. Turns out going Joe Pesci with your mouth gets you charged with a Felony, a thing called Terroristic Threats. That’s right. You might as well have kept your mouth shut and socked the dude in eye, because that’s only a misdemeanor, presuming you don’t have prior assaults and you don’t break any bones. Now you’re a terrorist. Ok, so punching a guy is not my legal advice. You want free advice? Here it is:
Anyone who “unlawfully and feloniously directly or indirectly threatens to commit any crime of violence
with the purpose to terrorize another or in a reckless disregard of the risk of causing such terror” commits a terroristic threats. The critical distinction on which criminal activity turns in Terroristic Threats in Minnesota is the scienter requirement, or “mens rea.” That was for the other lawyers out there or the Catholic School kids that actually had to take Latin. That means your mindset. It doesn’t say “intentionally”, but in common language, it means you have to actually mean what you say in order to really be guilty of terroristic threats. You have to seriously and immediately mean that you’re going to hurt someone or their property, or you should have known that someone was going to be genuinely fearful you would cash the check your mouth is writing. In other words, it can’t be just posturing. “The test of whether words or phrases are harmless or threatening is the context in which they are used.” United States v. Prochaska, 222 F.2d 1 (7 Cir. 1955); United States v. Pennell, 144 F.Supp. 317 (N.D.Cal.1956). “ Thus the question of whether a given statement is a threat turns on whether the ‘communication ‘in its context’ would ‘have a reasonable tendency to create apprehension that its originator will act according to its tenor.‘‘ United States v. Bozeman, 495 F.2d 508, 510 (5 Cir. 1974). So in other words, just passing, angry, momentary spouts of rage don’t fit the bill.
What’s weird is that the terroristic threats statute doesn’t include the word “intentionally”, but misdemeanor assault does. If you intentionally place someone in fear of bodily harm, you commit a misdemeanor assault. You can already see where the same incident or words can subsist for both charges, one of which is a felony, the other is a misdemeanor. What I’m saying is this: Terroristic threats is one of the most overcharged pieces of garbage in the criminal code, and the standard plea offer when the state knows they don’t have what it takes to prove it is to plead to misdemeanor assault. You don’t need to hire a lawyer to get that plea offer. You hire a lawyer to fight your case, and make the alleged “victim” say they were actually scared you were going to hurt them, which is a lot harder to convince a jury of than some people think, and that’s how a case is won. Bottom line: Call a lawyer if you’re charged with terroristic threats. It not only gives you the best shot at killing your case, but it serves to buck the system and protect all the people that come after you who have to face this crap felony charge.