The Volokh Conspiracy

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Free Speech

Talking to A About Plans to Kill B Isn't a Punishable Threat


The case is Commonwealth v. Gadley, decided May 20 by Judge Mary Murray, joined by Judges Daniel McCaffery and James Gardner Colins of the Pennsylvania Superior Court; here's the trial court's summary of the facts:

At the [June 15, 2021, preliminary] hearing, the Defendant's mother, Melody Blair … testified that on the night of May 29, 2021, the Defendant and his minor daughter (hereafter [M]) were present at their shared residence, along with the Defendant's minor brother (hereinafter [T]). Ms. Blair stated that she reminded the Defendant's daughter to tell the Defendant that her preschool graduation was coming up on June 7. Ms. Blair testified that at this time the Defendant stated, "I'm not going to let that happen. [M.] and I will be out of here by Monday. I'm not letting that happen."

Ms. Blair further testified that after approximately fifteen (15) to twenty (20) minutes, "[M.] went back to my room and I finished what I needed to do for the night, and that's when [the Defendant] made the comment that he was going to kill Alicia … and at one point he said he was going to shoot her." Ms. Blair later clarified that Alicia Zabelsky … is [M]'s mother. She also said that the Defendant did not make any communications specifically to Ms. Zabelsky or any other individuals, except [Ms. Blair]. Ms. Blair also clarified that the Defendant did not state he was going to go to Ms. Zabelsky's [residence] that same night or provide any specific time he anticipated on carrying out his threat. Ms. Blair testified that after a period of time, she went to her bedroom where the [D]efendant followed her and wanted the keys to her vehicle to take [M] from the residence. Ms. Blair stated she then had [T] call her oldest son, Josh, to come to the residence and defuse the situation. Ms. Blair testified that once Josh was contacted by [T], he contacted the police.

Trooper Brian Tanner … of the Pennsylvania State Police responded to the residence[.] Trooper Tanner testified that when he initially questioned the Defendant outside of his residence, he denied stating he was going to kill Ms. Zabelsky. However, Trooper Tanner stated upon transferring the Defendant to the Clarion County Jail, the Defendant made comments regarding Ms. Zabelsky's boyfriend to him. Specifically, Trooper Tanner testified that "[the Defendant] made comments such as, 'This might cost me prison time, but it will cost him his life. They're going to kill me before they take my little girl from me.'" Trooper Tanner stated that the Defendant was asked, "'Were you talking about the boyfriend of [M.'s] mother?' and he [replied], 'Yes.'"

Gadley was charged with misdemeanor terroristic threats, but the trial court dismissed the case, and the appellate court affirmed:

A person commits terroristic threats "if the person communicates, either directly or indirectly, a threat to … commit any crime of violence with intent to terrorize another[.]"For a defendant to be convicted of terroristic threats,

[n]either the ability to carry out the threat, nor a belief by the person threatened that the threat will be carried out, is an element of the offense. Rather, the harm sought to be prevented by the statute is the psychological distress that follows from an invasion of another's sense of personal security.

The rap video specifically threatened to kill [the named officers] "with a glock." We need not ponder whether deciding to broadcast songs or linking YouTube videos to one's Facebook page generally indicates intent to communicate, because Appellant stated his intent by saying in his rap song: "My momma told me not to put this on C.D., but I'm gonna make this fuckin city believe me, so nigga turn me up." Appellant chose not to listen to his mother because he wanted [the named officers] to hear his message, and they did. He successfully and intentionally communicated his threat.

In Kelley, the defendant called a law firm and told the secretary he was going to kill a specific attorney at the firm, as well as a specific judge. The secretary communicated the threat to the attorney and judge.  In deeming the evidence sufficient to sustain the defendant's conviction of terroristic threats, this Court explained:

[T]he evidence on the record established that [a]ppellant made a threat to commit a crime of violence and that he communicated such threat to [the named attorney's] secretary, when she asked if she could give [the attorney] a message. This threat was in turn communicated to the intended recipients, [the attorney] and [the named judge]. Accordingly, [a]ppellant's conduct met the requirement that the threat be communicated to the victims.

In both Beasley and Kelley, the evidence established that the threats were communicated to the intended victims. Here, by contrast, the record discloses no direct or indirect communication of Gadley's threats to Ms. Zabelsky or her boyfriend….

I think that some (perhaps many) courts would disagree; consider, for instance, the cases, such as U.S. v. Cessor (8th Cir. 2022), that uphold convictions for threatening the President, even when the threats weren't said to the President or with the apparent intention that they be conveyed to the President (or even to the President's staff or secret service people). One can argue that such statements of intent to kill someone should count as threats, because they are highly likely to reach their subject, directly or indirectly: If someone told you he was planning to kill someone else, and you thought he was serious, wouldn't you feel some obligation to tell the potential target, or to tell the police, who would likely feel some obligation to tell the potential target? But in any event, the Pennsylvania decision struck me as noteworthy, whether it's correct or not.