WPIC 2.24 Threat—Definition

Use bracketed material as applicable. For directions on using bracketed phrases, see WPIC 4.20 (Introduction). Select from among the bracketed phrases so as to use only those that apply to the particular case. With regard to the bracketed clause relating to political argument, see the Comment below.

Use WPIC 2.03 (Bodily Injury—Physical Injury—Definition), as applicable, with this instruction.

Portions of this instruction may be used with, or as an alternative to, WPIC 115.52 (Intimidating a Witness—Threat—Definition), in combination with WPIC 115.51 (Intimidating a Witness—Threat to Former Witness—Elements). See the Comments to those instructions.

RCW 9A.04.110.

The final paragraph of this instruction has been revised for this edition based on Counterman v. Colorado, 600 U.S. 66, 143 S.Ct. 2106, 216 L.Ed.2d 775 (2023). This issue is discussed below.

Threat. Several statutes supplement RCW 9A.04.110 with an additional definition of threat: “to communicate, directly or indirectly, the intent immediately to use force against any person who is present at the time.” See RCW 9A.76.180(3)(a) (intimidating a public servant); RCW 9A.72.160 (intimidating a judge); RCW 9A.72.130 (intimidating a juror); and RCW 9A.72.110 (intimidating a witness).

A speaker need not actually intend to carry out a threat in order for the communication to constitute a threat. State v. Kilburn, 151 Wn.2d 36, 48, 84 P.3d 1215 (2004); see also State v. Side, 105 Wn.App. 787, 790, 21 P.3d 321 (2001). A statement may constitute a threat even if it does not actually reach the victim. State v. Hansen, 122 Wn.2d 712, 717–18, 862 P.2d 117 (1993); Side, 105 Wn.App. at 790.

Use of the second bracketed phrase is proper in a prosecution under RCW 9.61.160, threatening to bomb or injure property. State v. Edwards, 84 Wn.App. 5, 924 P.2d 397 (1996). A conditional threat to injure property in the future is within this definition. Edwards, 84 Wn.App. at 11–12. See the Comment to WPIC 86.02 (Threatening to Bomb or Injure Property—Elements).

Use of the first bracketed phrase, which is the language of RCW 9A.04.110(27)(a), is error in a robbery case because that statutory definition refers to threat to do injury in the future. State v. Gallaher, 24 Wn.App. 819, 604 P.2d 185 (1979).

True threat. The constitution requires the prosecution to prove a true threat for many offenses, including: harassment, felony harassment (see cases cited earlier in this section); threats to bomb or injure property (see State v. Johnston, 156 Wn.2d 355, 127 P.3d 707 (2006)); threats involved in intimidating a judge (Hansen, 122 Wn.2d 712); threats to bomb a government building (State v. Smith, 93 Wn.App. 45, 966 P.2d 411 (1998)); and threats involved in intimidating a public servant (State v. Stephenson, 89 Wn.App. 794, 966 P.2d 411 (1997)); see also State v. King, 135 Wn.App. 662, 145 P.3d 1224 (2006) (holding that an instruction defining “true threat” is not needed for the crime of intimidating a former witness, RCW 9A.72.110; the crime's elements are such that they limit the statute's application to true threats and exclude constitutionally protected speech). An indirect threat may also constitute a true threat. State v. Locke, 175 Wn.App. 779, 789, 307 P.3d 771 (2013). The true threat requirement is imposed so that criminal statutes prohibiting threats do not target constitutionally protected speech. See State v. Williams, 144 Wn.2d 197, 207, 26 P.3d 890 (2001).

In this edition, the WPI Committee has determined that the concept of a true threat has both an objective and subjective prong.

The first sentence of the definition of “true threat” directs jurors to consider foreseeability from the standpoint of a reasonable person in the position of the speaker. This language incorporates the requirement that true threats be evaluated using an “objective standard that focuses on the speaker.” See, e.g., Kilburn, 151 Wn.2d at 44.

This language has long been included in this instruction and is based on State v. Kilburn, which defined a true threat as:

Kilburn, 151 Wn.2d at 43 (citations omitted). See also State v. J.M., 144 Wn.2d 472, 481–82, 28 P.3d 720 (2001).

In the 2023 case of Counterman v. Colorado, the United States Supreme Court held that the concept of a “true threat” also has a mens rea requirement. The Court stated: “[T]he State must prove in true-threats cases that the defendant had some understanding of his statements’ threatening character… [W]e hold that a recklessness standard is enough.” Counterman, 600 U.S. at 73. Counterman held that the First Amendment is not satisfied by defining a true threat under an objective reasonable person standard. Counterman, 600 U.S. at 78. Instead, the actor must at least recklessly convey a threat of violence. Counterman, 600 U.S. at 79. It explained that “[a] person acts recklessly, in the most common formulation, when he consciously disregards a substantial and unjustifiable risk that the conduct will cause harm to another.” Counterman, 600 U.S. 79 (internal punctuation and citation omitted). “[R]eckless defendants have done more than make a bad mistake. They have consciously accepted a substantial risk of inflicting serious harm.” Counterman, 600 U.S. at 80. See also Elonis v. United States, 575 U.S. 723, 135 S.Ct. 2001, 192 L.Ed.2d 1 (2015) (Mens rea of negligence is insufficiently protective of the First Amendment under statute making it a crime to transmit a threat to injure via interstate commerce.).

The second sentence of the paragraph is based on Counterman and incorporates the subjective mens rea standard of recklessness.

It would appear that State v. Schaler, 169 Wn.2d 274, 236 P.3d 858 (2010) has been abrogated by Counterman, to the extent it held that the appropriate mens rea in a harassment prosecution is negligence.

In summary, the revised instruction incorporates both the Washington “objective standard”—that a reasonable person in the defendant’s position would understand the threatening nature of the comments—and the Counterman “subjective” requirement—that the defendant, at the very least, personally was reckless as to the nature of the statements. It is possible that the Washington Supreme Court may revisit Kilburn in light of Counterman. However, until the case law further develops, the WPI Committee has elected to include both standards in the definition of true threat. See also JJR, Inc. v. City of Seattle, 126 Wn.2d 1, 6, 891 P.2d 720 (1995) (In some contexts, Washington Constitution article I, section 5 provides greater protection than does the First Amendment.).

A true threat can be found even when there is no actual intent to carry out the threat. Kilburn, 151 Wn.2d at 44–48.

The pattern instruction does not use the term “true threat.” Instructing jurors using this term could unnecessarily confuse the issues by causing jurors to speculate about “false” threats. Accordingly, the WPI Committee incorporated the constitutional concepts into the instruction’s final paragraph without directly referring to the legal term of art.

True threat—political advocacy. The case law establishes that true threats are to be distinguished from constitutionally protected speech, including not only statements made in jest and idle talk, but also political arguments. See Kilburn, 151 Wn.2d at 43; J.M., 144 Wn.2d at 477–78.

The context of political advocacy raises special considerations with regard to constitutionally protected speech. See, e.g., Watts v. United States, 394 U.S. 705, 89 S.Ct. 1399, 22 L.Ed.2d 664 (1969) (holding that the statement “if they ever make me carry a rifle the first man I want in my sights is L.B.J.” in a political speech did not amount to a threat against the life of the President). For cases involving political speech, some additional instructions may be necessary to address these issues. For cases that do not involve political speech, practitioners may avoid these issues by omitting the bracketed reference to political arguments.