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.

Comments

[Abdul Abulbul Amir]

We need involuntary commitment to a secure facility. It may not be a crime, but it should not be ignored.

[MatthewSlyfield]

It exists, but it isn't easy and it shouldn't be. It used to be much easier and the historical evidence is that it was heavily abused.

[Abdul Abulbul Amir]

Is the solution so called “red flag laws” that are far more easy to abuse?

[Stephen Lathrop]

I was not aware that red flag laws could result in incarceration.

[DaivdBehar]

Yes, in 1896 England had a red flag law. Every automobile required a man walk ahead of it with a red flag to warn of its coming.

[Abdul Abulbul Amir]

1. It would leave a person deemed a danger to others on the loose. The Waukesha massacre was accomplished without a firearm. The highest vehicle mass murder had a body count of 84.

2, It provides for seizure of property for government use without compensation.

3. It leaves a person contemplating suicide defenseless, contributing to depression and leaving a host of suicide mechanisms available.

4. It makes a joke of due process. The judge only hears from those seeking confiscation and stigmatization.

5. Black market firearms are still available.

6. A would be mass shooter now has an additional motive (retaliation against the system) to use the black market option.

7. It would be a handy tool to anonymously stigmatize a political opponent opponent.

8. See 1., 5., and 6. It in no way ensures its intended purpose at cost.

9. Any well known celebrity’s violent rhetoric will be dismissed as only rhetoric. Not so for the average Joe or Jane.

[Sarcastr0]

So was your op a satire of red flag laws or a thing you want to happen for non true threats?

[DaivdBehar]

It was never abused. It required certification by 2 physicians who did not know each other and got paid $25 for their evaluations. If they colluded to railroad a normal person, they faced kidnap charges, not to mention malpractice claims and licensing hassles. That is a ridiculous excuse to generate worthless make work jobs for 3 lawyers a case, the prosecutor, the defense, and the lawyer dipshit in the middle to decide on a subject he knows nothing about. The lawyer profession took over psychistry to generate jobs. The result is all mass shootings, massive sucide loss and most murders.

The Supreme Court must be stopped from destroying this country.

[DaivdBehar]

Abdul is correct. The Supreme Court must be stopped. A federal law should re-establish 2 physician certificate for involuntary treatment, including the administration of depot anti-psychotic by injection. As a compromise, let it lapse after a year and require renewal by 2 other physicians not involved in the case.

[Abdul Abulbul Amir]

If red flag laws had similar process protections, there would be little opposition.

[John F. Carr]

No harm, no foul. Like exposing your genitals to somebody is not an offense on its own in my state. The prosecution must also prove that you caused offense (misdemeanor) or alarm or shock (felony).

[Davy C]

Well, they don't want to criminalize locker rooms.

[Eugene Volokh]

John Carr: But wait -- I take it that Ms. Zabelsky unsurprisingly did hear about the "I'm going to shoot her statement," and thus likely experienced the "psychological distress that follows from an invasion of another's sense of personal security" (unless she understood that Gadley was just blowing smoke, but nothing in the opinion so suggests).

To be sure, Zabelsky heard it because an intermediary (Melody Blair) told her (or told the police who told her); but, as I mentioned, I take it that it's eminently foreseeable that she'd do so, right? Maybe you might argue that Gadley shouldn't be responsible for this foreseeable harm, but the harm would still be present.

[John F. Carr]

The court's decision is not as clear as it should be. I took it to mean Ms. Zabelsky did not hear about the threat except incidental to the prosecution. Arguably, it meant the defendant did not intend her to learn about the threat but she in fact did. In the latter case the prosecution should have been allowed. A petition for habeas corpus at this stage of the prosecution tests whether the prosecution has offered a prima facie case.

[Flight-ER-Doc]

What ever happened to misprision of felony?

[Michael P]

Misprision of felony has always required that the felony already be completed. In the US, there are typically other requirements. See, for example, https://www.criminaldefenselawyer.com/resources/misprision-felony.htm

[Eugene Volokh]

I'm not sure how it would be relevant here, but under federal law "misprision of felony" has been interpreted to "require[] both knowledge of a crime and some affirmative act of concealment or participation," "such as suppression of the evidence, harboring of the criminal, intimidation of witnesses, or other positive act designed to conceal from the authorities the fact that a crime had been committed." The rationale:

Furthermore, some such interpretation is necessary to rescue the act from an intolerable oppressiveness and to eliminate a serious question of constitutional power. Whatever may have been the case in 1790, when federal felonies were few, the act if otherwise construed would be but another unworkable and unenforceable law in latter days.... The guest at a club or a dinner in Eastern Oklahoma would lately [i.e., shortly before 1934] have been a felon if he had not promptly reported to the nearest federal judge the fact that he observed another guest in possession of a beverage of proscribed alcoholic content. An intrepretation leading to such an intolerable conclusion should not lightly be imputed.

[Stephen Lathrop]

To this non-lawyer the insistent formalism of this kind of jurisprudence seems to downplay concern about homicide, to a surprising degree.

[Frank Drackman]

Ya think? can't in-con-veeeeeeeeeeeeennnnn-ient our future Mass Murderers!
Frank "Not planning on committing any Mass Murders, and if I was, wouldn't tell anyone" (no, please, I'm really not)

[David Nieporent]

That's because you have a strong antipathy towards actually free speech (as opposed to speech that goes through professional gatekeepers), so your goal is to carve out as broad exceptions to free speech protections as possible.

It's "formalist" because speech is generally protected, and the "true threat" rule is an exception to that protection, and so it is to be interpreted narrowly so as to bite as little speech as possible.

[damikesc]

I fully support free speech. However, stifling speech like this is more likely to avoid murders than banning guns.

Both ideas are idiotic, mind you, but only one is entertained incessantly.

[MatthewSlyfield]

"However, stifling speech like this is more likely to avoid murders than banning guns."

Preventing someone from talking about murder will some how prevent them from committing murder? Um, No.

[Stephen Lathrop]

Slyfield — Permitting people to threaten murder facilitates intimidation. The question is whether that should be perfectly okay intimidation, or illegal intimidation.

[MatthewSlyfield]

"Permitting people to threaten murder facilitates intimidation."

Sure, if the threats are made to the intended victim.

"The question is whether that should be perfectly okay intimidation, or illegal intimidation."

No, just no. It can very much be not perfectly okay without rising to the level of being criminal.

Criminal intimidation very much ought to include a specific intent that the threat be conveyed to the intended victim if not delivered to said victim directly.

[MatthewSlyfield]

"The question is whether that should be perfectly okay intimidation, or illegal intimidation."

No, that is not at all the question raised by damikesc.

He claimed that stifling this speech would prevent actual murders.

[David Nieporent]

Permitting people to threaten murder facilitates intimidation

Consider the question begged.

[Stephen Lathrop]

and so it is to be interpreted narrowly so as to bite as little speech as possible.

Nieporent — That condition is fulfilled by ditching the true threats exception altogether. Left unexplained is why the line defining true threats ought to permit earnest-looking threats of homicide. A choice to assert this utterance is a true threat, and that utterance is not, cannot be explained except with an explanation, which you have omitted.

[David Nieporent]

Left unexplained is why the line defining true threats ought to permit earnest-looking threats of homicide.

Left unexplained is why you start from the perspective of "Why should this be allowed?" rather than "Why can this be banned?"

I would think the explanation for why we need to narrowly define true threats is obvious: the evils of a true threat — putting the putative target in fear, and all the attendant consequences of that — can only occur if the threat is actually made to the target. Saying it privately to a third party doesn't have any effect on the target.

Of course, the third party might pass along the threat to the target — but if that were determinative, it would make someone's criminal liability turn not on their own actions, but on the independent actions of a third party. So then the legal question should be: was the third party passing along the threat the intent, or at least the foreseeable consequence, of the threatener's actions?

In other words, "Tell your brother I'm going to kill him" would be a true threat just like, "I'm going to kill you" is. But merely venting to a third party about how much you hate someone and would like to do to that person, not necessarily.

[apedad]

"I think that some (perhaps many) courts would disagree; consider, for instance, the cases, such as U.S. v. Cessor (8th Cir. 2022). . . ."

This isn't a good example to use since there are specific laws and circumstances concerning threats to the President (and President-elect, Vice President or other officer next in the order of succession to the office of President or the Vice President-elect), that us ordinary folk don't enjoy (18 U.S. Code § 871).

[EscherEnigma]

Currently, people do casually say things like "I'm going to murder him" when they do not mean this literally.

The courts have recognized this, and so do not take such statements at face value.

A consequence (both legal and social) is that it's very hard to get such statements taken seriously. Calling the cops on someone who has said they intend to murder another person rarely leads to action at all (this case, where the police did show up and question the guy is actually kind of unique). This difficulty is beneficial in that police do not waste time investigating non-serious death threats, and disastrous in that they rarely investigate serious death threats either.

There is one solution, and one solution only, to this problem: take all death threats, no matter how casually expressed, seriously. Mandatory 48 hours in a jail cell after screaming "I'm going to fucking murder you" into your cell phone is going to train people right-quick to stop being so casual with their language regarding death threats.

America, of course, will never pursue this solution. But until we are willing to, the courts and police will be stuck in a Catch-22: take death threats seriously and you'll be dealing with a lot of angry gamers that are shouting into their microphones. Don't take them seriously, and there's a good chance you'll wind up in a "all the things the police did wrong that led to this tragedy" article.