California Terrorist Threat Law

0
144

While writing about California terrorist threat law, Darren Chaker decided to look at the statute from the start. In 1981, this Court found the former versions of sections 422 and 422.5 to be unconstitutionally vague. (People v. Mirmirani (1981) 30 Cal.3d 375, 388.) Subsequently in 1987, the California Legislature repealed sections 422 and 422.5 (Stats. 1987, ch. 828, § 28, p. 2587), and then in 1988, enacted a revised version of section 422 as part of the “California Street Terrorism Enforcement and Prevention Act” (Stats. 1988, ch. 1256, § 4, pp. 4184-4185). The new statute provided that a person could be convicted of making a terrorist threat if the person “willfully threaten[s] to commit a crime that would result in death or great bodily injury to another person, with the specific intent that the statement be taken as a threat, even if there is no intent of actually carrying it out.” The revised statute, adopting language virtually verbatim from United States v. Kelner (2d Cir. 1976) 534 F.2d 1020, required the threat “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.” (Stats. 1988, ch. 1256, § 4, pp. 4184-4185.)

In Kelner, the defendant held a press conference and stated plans had been made to kill Yasser Arafat while Arafat was visiting New York. (United States v. Kelner, supra, 534 F.2d at pp. 1020-1021.) The defendant was subsequently convicted of violating a federal law that prohibits the communication of a threat in interstate commerce. (Id. at p. 1020.) On appeal, the defendant argued his statements were protected by the First Amendment because they were political expressions and he did not intend to carry out his threat. (Id. at p. 1022.) In upholding the conviction, the Second Circuit Court of Appeal found the statements were more than mere political opinions and were “true threats” as defined by the United States Supreme Court in Watts v. United States (1969) 394 U.S. 705 [89 S.Ct. 1399,22 L.Ed.2d 664]. (United States v. Kelner, supra, 534 F.2d at pp. 1025-1028.) The Kelner court ruled specific intent to carry out the threat was not constitutionally required as long as “the threat on its face and in the circumstances in which it is made is so unequivocal, unconditional, immediate and specific as to the person threatened, as to convey a gravity of purpose and imminent prospect of execution.” (Id. at p. 1027.)

The statutory language in section 422 was “carefully drafted to comport with the detailed guidelines articulated by the Kelner court.” (People v. Fisher (1993) 12 Cal.App.4th 1556, 1560.)

Section 422 defined the crime of terrorist threats as follows:

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 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 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….

True threats are not constitutionally protected speech. (Watts v. United States, supra, 394 U.S. at pp. 707-708; In re M.S., supra, 10 Cal.4th at p. 710; People v. Fisher (1993) 12 Cal.App.4th 1556, 1559; see also United States v. Maxton (4th Cir. 1991) 940 F.2d 103, 105-106; United States v. Merrill (9th Cir. 1984) 746 F.2d 458, 462.) Application of section 664 to section 422 is narrowly directed to punish only attempts to make “true threats” which pose a danger to society and are unprotected by the First Amendment. (See In re M.S., supra, 10 Cal.4th at p. 714.) The specific intent requirement ensures the statutes will not punish rhetoric, opinion, or other protected speech. (See Id. at pp. 713-714.) Thus, the crime of attempting to make a terrorist threat will only punish attempts to utter unprotected speech.

Previous articlePennsylvania Offense of Terroristic Threats is a “Crime of Violence”
Next articleCalifornia Penal Code 664 and Law of Attempts
For almost two decades Darren Chaker regularly has worked with defense attorneys and high net worth people on a variety of sensitive issues from Los Angeles to Dubai. With a gift of knowledge about the First Amendment and big firm expertise in brief research and writing, Darren Chaker puts his knowledge to use for law firms and non-profit organizations. When it comes to forensics and social media investigations Darren Chaker has advanced training to connect the dots where issues arise related to Twitter, Instagram, Snapchat, or Facebook, Instagram, and similar apps. When the dots need to be disconnected, Darren Chaker has extensive training in counter-forensic methods with an emphasis on network security, secure communications, combined with experience with implementing and deploying policy control, encryption, anonymization, data integrity, policy control features in large scale infrastructures. Additional training in malware analysis, Security Operating system security and hardening (Linux, Windows, Solaris), Firewalls, Intrusion detection systems, hacker, counter-hack methods, encryption, forensics, web application security is also employed for his client base. Since history is written by winners, here are a few wins: In 2005, Darren Chaker invalidated a California criminal statute aimed at suppressing speech. In Chaker v. Crogan, 428 F.3d 1215 C.A.9 (Cal.),2005, Cert. denied, 547 U.S. 1128, 126 S.Ct. 2023, is a case Darren Chaker personally handled and laid the ground work to allow appellate counsel to strike down a statute based on First Amendment rights. Subsequent to winning before the 9th Circuit, the State challenged the decision before the United States Supreme Court. Darren Chaker retained a former US Supreme Court Clerk and head of United States Supreme Court litigation for a major firm, Joshua Rosenkranz. The New York attorney defeated the State's petition to review the Ninth Circuit ruling causing multiple states to rewrite their own flawed statute since they were premised the California statute Darren Chaker struck down. Darren Chaker personally litigated Chaker v. Crogan for 7 of its 10-year lifespan. Darren Chaker’s victory invalidated a statute on First Amendment grounds and overruled the California Supreme Court‘s unanimous decision in People v. Stanistreet, 127 Cal.Rptr.2d 633. Soon after Chaker v. Crogan, it was also used to strike down Nevada's analogous statute forcing the legislature to rewrite the law, but also nullified a similar Washington statute as well. (De La O v. Arnold-Williams, 2006 WL 2781278) and used as the backbone authority in Gibson v. City of Kirkland, 2009 WL 564703, *2+ (W.D.Wash. Mar 03, 2009). The case has been cited hundreds of times and continues to be a leading authority on viewpoint discrimination. In 2010, Darren Chaker prevailed in Nathan Enterprises Corp. v. Chaker, 2010 Cal. App. Unpub. LEXIS 7604, through his counsel Timothy Coates who has prevailed multiple times before the United States Supreme Court. also prevailed for Darren Chaker where the Court of Appeal affirmed an anti-SLAPP ruling where the underlying conduct was found to have been within those protected by his First Amendment rights. In 2012 Darren Chaker prevailed on a First Amendment issue before the Texas Attorney where issued Opinion 2012-06088 where he established the right to obtain the names of peace officers regardless of undercover status. The Texas Attorney General opinion has been used as authority thousands of times by citizens and news agencies to learn more about Texas peace officers. In 2016, Darren Chaker was victorious in US v. Chaker (9th Cir. 2016) 654 F.App'x 891, 892. The ACLU, Electronic Frontier Foundation, First Amendment Coalition, Cato Institute, and the University of Florida reversed a conviction premised on First Amendment rights where blog postings were at issue. In 2017, Darren Chaker prevailed in a RICO lawsuit aimed at suppressing speech filed by San Diego attorney Scott McMillan. In McMillan v. Chaker (S.D.Cal. Sep. 29, 2017, No. 16cv2186-WQH-MDD) 2017 U.S.Dist.LEXIS 163990 the court found by blogging did not constitute extortion as no demand for money to cease blogging was made. The judge found the case to be meritless, stating in part, “The Court concludes that these factual allegations are insufficient to establish that Defendant Darren Chaker obtained something of value from Plaintiffs…. The motion to dismiss the cause of action under 18 U.S.C.§ 1962(c) filed by Defendant Darren Chaker is granted.” In 2020, San Diego attorney Scott McMillan lost a heavily litigated appeal believing the court erred in dismissing his lawsuit against Darren Chaker. Mr. Chaker was represented by former Los Angeles federal judge Stephen Larson. The Ninth Circuit in McMillan v. Chaker (9th Cir. 2020) 791 F.App'x 666, affirmed the dismissal of a RICO lawsuit premised on alleged defamation of Scott McMillan. The court stated in part, “Plaintiffs failed to allege extortionate conduct because there are no allegations that Mr. Chaker obtained property from Plaintiffs that he could “exercise, transfer, or sell. ”See Scheidler, 537 U.S. at 405. Plaintiffs’ claim also fails because there are no allegations to support the “with [Plaintiffs’] consent” element. United Bhd. of Carpenters & Joiners of Am., 770 F.3d at 843.” In sum, Scott McMillan filed a lawsuit in direct conflict with established United States Supreme Court precedent and lost – twice. Also, in 2020, Darren Chaker was sued for defamation by Las Vegas attorney Thomas Michaelides. When Darren Chaker became aware of the lawsuit, he retained Olson, Cannon, Gormley, Angulo & Stoberski to defend him. Darren Chaker found a court order Mr. Michaelides submitted to Google that was reported to LumensDataBase.org. Several inconsistencies were noticed on the court order submitted to Google. Most notably the court docket does not show Mr. Michaelides submitted an order to the court for the judge’s signature. The court docket does not reflect the court ever signed the order Mr. Michaelides submitted to Google. Ultimately, the Nevada court dismissed the lawsuit and sanctioned Mr. Michaelides $51,000 for suing Darren Chaker for conduct within his First Amendment rights and for filing a meritless lawsuit. See forged order and judgment against Thomas Michaelides here. Darren Chaker donates time to post-conviction relief organizations to seal arrests and convictions to increase opportunity for those who were convicted of crimes, conducts research and brief writing on First Amendment issues, and also enjoys promoting non-profit organizations such as the ACLU and various domestic violence shelters through his resources within the entertainment industry, including Jason Statham and Eric Roberts. Darren Chaker also enjoys traveling, being a phenomenal father, and forwarding his education with post graduate degree work.