In State v. Calvin Fair (A-20-22/086617) (Decided January 16, 2024), the Supreme Court of New Jersey incorporated the U.S. Supreme Court’s recent decision in Counterman v. Colorado, 600 U.S. 66, 79 (2023) to hold that a mental state of recklessness is constitutionally sufficient for a “true threats” prosecution under N.J.S.A. 2C:12-3(a). The Court further held that an objective component is also 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.
Facts of State v. Fair
In February 2015, State Police seized several handguns from defendant Calvin Fair’s home. In April 2015, defendant referenced the search on Facebook, noting that none of the guns the police found were his and that he still had all of his guns.
On May 1, 2015, officers responded to a domestic-violence call at defendant’s home. After a few verbal exchanges with an officer, defendant yelled: “Worry about a head shot, [epithet].” At no point did defendant brandish a weapon. About two hours after the officers left, defendant made Facebook posts stating in part, “THN YU GOT THESE . . . OFFI$ERS THINKIN THEY KNO UR LIFE!!! . . . . I KNO WHT YU DRIVE & WHERE ALL YU MOTHERFU$KERS LIVE AT[.]”
After reviewing the public posts, police issued a terroristic threats complaint against defendant. An officer testified that in addition to the “[w]orry about a head shot” comment, he was concerned from the Facebook posts that defendant still had his guns and knew where the officers lived and what cars they drove.
N.J.S.A. 2C:12-3(a) provides that a person is 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.” Under Subsection (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.”
Defendant sought to dismiss the indictment, arguing, among other things, that N.J.S.A. 2C:12-3(a) is unconstitutionally overbroad because it criminalizes terroristic threats made with a mens rea of recklessness. At trial, the State asked that the court charge the jury on N.J.S.A. 2C:12-3(a) and/or (b). And the verdict sheet mirrored the indictment, directing the jury to determine whether the State had proven beyond a reasonable doubt that defendant committed third-degree terroristic threats in violation of N.J.S.A. 2C:12-3(a) and/or (b). During deliberations, the jury sent a note, asking: “Do both 2C:12-3(a) and 2C:12-3(b) have to be proven beyond a reasonable doubt or just one or the other?” With the consent of both parties, the court responded that “it could be . . . one or the other.” Twenty minutes later, the jury reached a guilty verdict.
The Appellate Division reversed, agreeing with defendant both that the “reckless disregard” portion of N.J.S.A. 2C:12-3(a) is “facially invalid.” The appeals court further held that “[w]ithout an instruction that would have made . . . clear to the jury” that they needed to be unanimous on whether defendant violated N.J.S.A. 2C:12-3(a), (b), or both, “we can have no confidence that the jury did not produce an impermissibly fragmented verdict.”
NJ Supreme Court’s Decision in State v. Fair
The New Jersey Supreme Court held that a prosecution for terroristic threats under N.J.S.A. 2C:12-3(a) premised on a mens rea of recklessness is constitutional under the First Amendment and Article I, Paragraph 6 of the New Jersey Constitution. “Defining recklessness in this context as ‘morally culpable conduct, involving a deliberate decision to endanger another,’ Counterman v. Colorado, 600 U.S. 66, 79 (2023), we hold that a mental state of recklessness is constitutionally sufficient for a ‘true threats’ prosecution under N.J.S.A. 2C:12-3(a),” Justice Rachel Wainer Apter wrote.
Departing from Counterman, the New Jersey Supreme Court added another objective element to the test. As Justice Wainer Apter explained: “We also hold that an objective component is necessary for a ‘true threats’ prosecution to survive constitutional scrutiny: the State must prove that a reasonable person similarly situated to the victim would have viewed the message as threatening violence.
In reaching its decision, the New Jersey Supreme Court substantially adopted the Counterman standard. Under this standard, to be found guilty of a violation of N.J.S.A. 2C:12-3(a), a defendant must have consciously disregarded a substantial and unjustifiable risk that their threat to commit a crime of violence would terrorize another person, and that conscious disregard must be a gross deviation from the standard of conduct that a reasonable person in a defendant’s situation would observe.
The New Jersey Supreme Court further ruled 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. It departed from Counterman in holding the objective inquiry, in which the jury determines whether a reasonable person would have viewed the defendant’s words as threatening violence, must be undertaken not from the perspective of an anonymous ordinary person, but from the perspective of a reasonable person similarly situated to the victim.
“This is another way of saying that context matters,” Justice Wainer Apter wrote. “Considering the perspective of one similarly situated to the victim, which entails consideration of prior interactions between the parties, protects against convictions for statements made in jest, political dissent, or angry hyperbole, while allowing the State to prosecute true threats of violence that would instill fear of injury in a reasonable person in the victim’s position.”
The New Jersey Supreme Court remanded 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 its opinion. The Court also instructed that the jury should be charged that they must unanimously agree as to whether defendant violated N.J.S.A. 2C:12-3(a), (b), or both.