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By David Salvin February 4th, 2002

Published in "Orange County Lawyer Magazine" February 2002

As a solo practitioner here in Orange County, I never imagined that I would find myself representing international gun runners, terrorists and the like. However, I have recently noticed a disturbing trend in my practice. In the last two years I have been representing more and more accused "terrorists." While this conjures to mind my working with the now infamous Osama Bin Laden or perhaps members of his organization, it may surprise many people to learn that rather than defending such international villains, I am being called upon to defend the "terrorist next door."

The charge often being brought by local district attorneys is a violation of Penal Code Section 422. Making terrorist threats. Section 422 holds: "Any person who willfully threatens to commit a crime which will result in death or great bodily injury to another person, with the specific intent that the statement, made verbally, in writing, or by means of an electronic communication device, is to be taken as a threat, even if there is no intent of actually carrying it out, which, on its face and under the circumstances in which it is made, is so unequivocal, unconditional, immediate, and specific as to convey to the person threatened, a gravity of purpose and an immediate prospect of execution of the threat, and thereby causes that person reasonably to be in sustained fear for his or her own safety or for his or her immediate family's safety, shall be punished by imprisonment in the county jail not to exceed one year, or by imprisonment in the state prison."

Section 422 was part of the California Street Terrorism Enforcement and Prevention

Act passed by the Legislature in 1988. A portion of that act provides: "The Legislature hereby finds and declares that it is the right of every person ... to be secure and protected from fear, intimidation, and physical harm caused by the activities of violent groups and individuals. It is not the intent of this chapter to interfere with the exercise of the constitutionally protected rights of freedom of expression and association. The Legislature, however, ... finds that the State

of California is in a state of crisis which has been caused by violent street gangs whose members threaten, terrorize, and commit a multitude of crimes against the peaceful citizens of their neighborhoods. These activities ... present a clear and present danger to public order and safety and are not constitutionally protected." (Pen. Code, § 186.21, italics added.)" (People v. Brooks (1994) 26 Cal.App.4th 142, 149 [31 Cal.Rptr.2d 283].)

In light of recent tragic events, it is clear that what California may have considered "terrorism" in 1988, may not be the same as most would define it today. Nevertheless, this charge is being brought very frequently - and against people who would not easily fall into the category of "terrorist." The very language of the street terrorism bill and its legislative intent demonstrate that the purpose of the law was to stop street gangs who were operating like terrorist organizations. However, the targets of the law have recently become more varied and one could argue that in more recent times prosecutors have a weapon looking for a target in the street terrorism law.

Who are the "terrorists next door"?

In the past two years alone, I have handled a half dozen or so terrorist threat charges against all manner of people. Wives, spouses, even children. Each having nothing in common except that the State charged them with making terrorist threats. Of the half dozen or so such cases I have handled recently, I have tried a few, and when combined with other felony charges, gone to preliminary hearing on others. The district attorney has yet to prevail in proving any of the allegations to either a judge or jury at any of these hearings.

At the trial of one such matter, the facts were basically that a man and his wife got into an argument and he, in exasperation at not getting his point across, throws up his hands and says "well, I’m just going to have to kill you!" It was never alleged that the wife was actually touched, nor was there any evidence of a weapon being present. Only that the husband used the words and threw his hands in the air. At the trial of this matter I compared his actions to those of Jackie Gleeson as Ralph Cramden in the Honeymooners who was famed to say "One of these days Alice . . . bang zoom - right to the moon". He would make this threat and shake his fist at his wife. The young DA assigned to handle the matter only vaguely knew who Jackie Gleeson was and to what I was referring. The jury did understand however, and after two days of trial and 15 minutes of deliberation returned a not guilty verdict and a scathing rant against the DA for wasting their time in listening to this ridiculous case.

Another such case involved a troubled youth and his mother who were sitting at the probation department waiting to see the child’s probation officer when he allegedly said "I wish I could kill you" to his mother. The mother mentioned it to the receptionist who quickly had officers arrest the troubled youth and cart him off to juvenile hall. Again, no weapon, no actual physical movement or manifestation of actual threat. The arrest and charge served only to complicate an already tragic familial situation.

Still another case involved a man who came home after being fired from his work and told his wife that he wanted to go back and kill his boss. Being embarrassed about losing his job and being unable to support the family, he made it seem as though he was wronged and that he was angry. He told his wife that he was going to get a gun and drive to the office and kill the manager. He drove off and returned minutes later and dropped his act. His wife, being upset called for a psychiatric evaluation of her husband through their HMO. Nearly a week later the HMO, fearing Tarasoft liability, told the manager. The upset husband, who had since calmed down and landed another job, was arrested and charged with making terrorist threats in his own home against someone who didn’t learn of the threat until long after it was even mentioned.

These cases may be illustrative of a crucial fact. What the legislature and DA may deem a terrorist threat is radically different than what you and I may consider such a threat. The disturbing trend in prosecution appears to be to tack on a "terrorist threat" charge on many otherwise common criminal charges such as battery, spousal battery, and disturbing the peace.

What is a terrorist threat?

As a close read of the statute will reveal, a terrorist threat must be "on its face and under the circumstances in which it is made. . . unequivocal, unconditional, immediate, and specific. . ." These are important words which must be addressed. Unequivocal requires words like "I will kill you", not" I might kill you" or "I wish I could kill you" or" I’d like to kill you." Unconditional requires an immediacy and immanence. "I am going to kill you" - not "I will probably kill you" or "if you don’t shut up I will kill you." Immediate and specific require the threat to be just that - specific and immediate. Words like "I will kill you some day" or "I’ll get you" simply don’t cut it.

Why Does it Matter?

Tacking on a difficult charge to prove in hopes of getting it is by no means anything new for prosecutors or civil plaintiffs alike. Adding a terrorist threat charge is in many instances like adding a fraud charge to a breach of contract case. It would be nice to win, but not very likely to come through. However, recent events have raised terms like "terrorist" and "terrorist threats" to nearly epic proportion. For most Americans, these terms conjure up horrible and devastating images. Images which very few people equate with a troubled child or angry spouse. What’s worse, is that in today’s atmosphere of fear and paranoia, those charged with "terrorist threats" risk a backlash and public reaction similar to being charged a witch in 18th century Salem, Massachusetts.

Though one may argue that the term "terrorist" in penal code section 422 is a matter of semantics, it can hardly be argued that the term doesn’t have actual consequences for those accused. The U.S. department of Justice has just announced that in response to the latest attacks and through newly passed anti-terrorism legislation, prosecutors will now (in some cases) actually be able to secretly listen in on conversations between defendants and their criminal defense attorneys. Which defendants? Why those charged with making "terrorist threats" among others.

At present, the new law is only dealing with Federal crimes and does not impact State defendants. The Federal Register notice says the monitoring will be done by a special "privilege team" and a "firewall" will be established between that team and prosecutors. Only "disclosures necessary to thwart an imminent act of violence or terrorism" will be made to investigators. This still begs the question "What is a terrorist threat?" Recent case filings suggest that as far as California Legislators and California prosecutors are concerned, "terrorists" include angry spouses, troubled children and anyone else who utters poorly chosen words in haste.

In order to stave off the inevitable charges of my concerns being defense counsel "bleeding heart" whining, I have to state that I have no difficulty in laws protecting spouses who are being harassed, threatened and abused. I have no problem keeping storekeepers safe from gangs extorting protection money or anything of the like. It simply occurs to me that the California Street Terrorism Enforcement and Prevention Act passed 1988 begins to show its age in our changing world and proves an ungainly tool when used by the State to punish troubled children, angry spouses or others who become "the terrorist next door." 


If you would like to see this article in the index for the Orange County lawyers magazine please click here.


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