Attempted Threats Must Be Objectively Threatening: Cal. Sup. Ct

By Mark Wilson, Esq. on September 09, 2014 | Last updated on March 21, 2019

In the wake of Facebook threats, which are becoming all the rage these days at the U.S. Supreme Court, the California Supreme Court had occasion to address the law of attempting to make a criminal threat.

Fairly recently -- just in 2001 -- the state supreme court recognized the existence of attempting to make a criminal threat. The elements are basically the same as in the completed crime, except that, because of circumstances outside the defendant's control, the threat doesn't reach the intended victim, or the victim doesn't understand the threat, or doesn't construe it as a threat.

In People v. Chandler, the court -- in an opinion by newish Justice Goodwin Liu -- had to decide whether attempting to make a threat required only a subjective intent to threaten, or additionally required that the threat be objectively threatening to a reasonable person.

Attempted Criminal Threats

The case involves Ben Chandler Jr., who made some increasingly threatening statements to a woman who lived around the corner. They began with just statements, evolved into spray paint, and ended in a face-to-face confrontation. The woman, Jaime Lopez, called the police. In fact, she called them seven times. Chandler also threatened another woman.

A jury found Chandler not guilty of making criminal threats, but found him guilty of the lesser included offense of attempting to make criminal threats. Chandler appealed, arguing that attempting to make criminal threats required both an objective and a subjective component. The Court of Appeal affirmed the conviction, and the California Supreme Court took the case to clarify the law of attempting to make a criminal threat.

First Amendment Concerns

Criminalizing any kind of speech implicates the First Amendment, and Liu carefully explained why both a subjective and an objective component were required if the crime of attempting to make a criminal threat was going to pass constitutional muster. A "true threat" is not protected by the First Amendment not because of the intent of the speaker but because of the "effect on a reasonable listener of the speech." This is because a threat is unprotected, as it triggers fear in the listener. If a speaker intends for his speech to cause fear, but there was never a realistic chance that it was going to anyway, then there hasn't even been an attempted threat; consequently, the speech would fall on the "constitutional" side of the line, as threats are an exception to the general rule that speech is protected.

Speculation about incitement was just that: speculation. It's "not clear how speech that is not objectively threatening would trigger, except in the most speculative way, a possibility that the threatened violence will occur," Liu wrote. In the instant case, said Liu, Chandler's statements were objectively and subjectively threatening. The purpose of the opinion in People v. Chandler was just to clarify the elements of the crime.


Justice Carol Corrigan, joined by two others, dissented. She didn't think any interpretation was necessary, as the statute wasn't ambiguous on the issue, and there was no constitutional problem: "Any criminal attempt requires a specific intent to commit the crime completed" -- and the crime of making a criminal threat doesn't require that the threat reasonably place the victim in fear.

In Justice Corrigan's opinion, Liu and the majority read a problem into the statute, and then read a new element into the crime to resolve the problem it had created.

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