Prosecution for Terroristic Threats: New Jersey Adopts One Component of U.S. Supreme Court’s Counterman v. Colorado Decision, While Diverging as to Another Component

State v. Fair, ___ N.J. ___ (2024). “True threats” fall outside constitutional free speech protections. The issue in this case, in which Justice Wainer Apter wrote a unanimous opinion that was issued today, was whether a mens rea of recklessness allows a prosecution for terroristic threats. N.J.S.A. 2C:12-3(a) makes a person guilty of third-degree terroristic threats “if he threatens to commit any crime of violence with the purpose to terrorize another or . . . in reckless disregard of the risk of causing such terror or inconvenience.”

The case arose out of a domestic violence incident. Police responded to the scene of the incident, defendant’s home. To say the least, defendant was not happy to see them. Though he did not show a weapon, defendant shouted (among other things) “Worry about a head shot, [epithet]” at the police. The officers left, and two hours later defendant posted this on Facebook: “I think its about tht time to give Mr. Al Sharpton & Mr Rev[] Jackson, internal affairs & my law[yer] a $all, one thg yu wont do is disrespe$t me or my 84 year old mother kause yu $arry a badge & another thg yu not doin is tryin to keep me inn system with patty fines & $omplaints whn im not ur job . . . . My 84 year old mother didnt deserves her door bein ki$k inn by 30 armed offi$ers with aks & shields drawn. . . . YU WILL PAY, WHOEVA HAD ANY INVOLVEMENT. WASTIN TAX PAYERS MONEY! BRINING ALL THM OFFI$ERS OUT FOR A 84 YEAR OLD WOMEN! SO SAD BUT WE WILL HAVE THA LAST LAUGH! #JUSTWAITONIT[.]” He then replied to that post with ““THN YU GOT THESE . . . OFFI$ERS THINKIN THEY KNO UR LIFE!!! . . . . I KNO WHT YU DRIVE & WHERE ALL YU MOTHERFU$KERS LIVE AT[.]”

The State brought a terroristic threats case, under N.J.S.A. 2C:12-3(a) and (b) against defendant based on the “Worry about a headshot” and “I KNO WHT YU DIRVE & WHERE ALL YU MOTHERFU$SKERS LIVE AT” statements. As quoted above, subsection (a) incorporates a recklessness standard. Subsection (b) states “(b) A person is guilty of a crime of the third degree if he threatens to kill another with the purpose to put him in imminent fear of death under circumstances reasonably causing the victim to believe the immediacy of the threat and the likelihood that it will be carried out.” Without objection, the jury was charged to consider whether defendant was guilty under N.J.S.A. 2C:12-3(a) “and/or (b). The jury found defendant guilty but did not specify under which subsection(s).

Defendant appealed, contending that the recklessness standard of subsection (a) was unconstitutional. He also argued that the jury charge and the accompanying verdict sheet improperly made it impossible to determine under which subsection(s) the jury found guilt. In an opinion reported at 469 N.J Super. 538 (App. Div. 2021), the Appellate Division held that the recklessness standard did not comply with the First Amendment and agreed with defendant about the jury charge and verdict sheet as well. The State appealed to the Supreme Court as of right, citing the substantial constitutional question regarding the propriety of the recklessness standard. Today, the Supreme Court reversed in part and affirmed in part.

Last year, the Supreme Court of the United States addressed the standard for prosecution of true threats in Counterman v. Colorado, 600 U.S. 66 (2023). The Appellate Division’s decision, of course, had preceded Counterman. In Counterman, the Court held that recklessness was a sufficient standard. Justice Wainer Apter followed that ruling, holding that the standard satisfied New jersey’s free speech guarantee, contained in Article I, paragraph 6 of the New Jersey Constitution.

Defendant argued that he was being prosecuted “because he ‘engaged in a heated debate with an officer . . . and then spoke critically to his Facebook followers, about his government’s criminal justice policies’” and because he “‘challenged [the] officers’ policies and called for reform,’” while ‘protest[ing] against the government and [the] prevailing social order.’” The Court found that “incorrect.” Justice Wainer Apter emphasized that defendant had warned the officers about a “headshot” and had said that he knew what vehicles the officers drove and where they lived. This was far from a prosecution for “dissenting political speech.” The Court “therefore decline[d] to consider whether a mens rea other than recklessness would be required if the State attempted to prosecute ‘dissenting political speech’ as a true threat of violence under N.J.S.A. 2C:12-3(a).”

The Court diverged from Counterman, however, in another respect. Besides the “subject mens rea of at least recklessness,” Justice Wainer Apter held that “an objective component is necessary for a prosecution for a threat of violence under N.J.S.A. 2C:12-3(a) to survive First Amendment and Article I, Paragraph 6 scrutiny.” She cited previous opinions by our Supreme Court, as well as a ruling by the Supreme Court of Indiana in support.

That ruling required a remand for “a new trial correctly charging the jury on both the objective and subjective components of N.J.S.A. 2C:12-3(a), consistent with this opinion.” On that remand, the Court said, the jury must be told to specify which subsection of N.J.S.A. 2C:12-3 defendant violated if a guilty verdict is returned.