Breaking: DCCA grants rehearing en banc to consider mens rea for threats

The D.C. Court of Appeals has granted rehearing en banc in the case of Carrell v. United States, 80 A.3d 163 (D.C. 2013), in which a Division of the Court (over a strong dissent from Judge Schwelb) held that a threats conviction requires proof only that the defendant intended to utter the words that constitute the threat, but not that he intended the words to be threatening.  In our original blog post on Carrell, which you can find here, we noted that this case was "ripe for en banc review" given that there had been two lines of conflicting precedent in D.C.  It seems likely that the DCCA was holding the rehearing petition in order to see what the Supreme Court did in a case involving the federal threats statute, Elonis v. United States, 135 S.Ct. 2001 (2015), which we blogged about here, as the DCCA's order specifically asks the parties (and PDS as amicus) to brief the impact of Elonis.  The Supreme Court held in Elonis that the federal threats statute requires proof that the defendant intended to threaten (or perhaps was reckless), so that will be highly persuasive authority for the DCCA.  For now, the Division's opinion in Carrell is vacated, and it is essential to argue in any threats case that proof of an intent to threaten is required.