It is not a crime to make threatening statements that hinge on the occurrence of an impossible event.

Charles Lewis v. United States, No. 13-CM-321 (decided July 31, 2014)

The Players: Glickman, Beckwith, Nebeker.  Opinion by Judge Nebeker.  McGennis Williams for Mr. Lewis.  Trial judge: Marisa Demeo.

The Facts: Mr. Lewis was arrested for an offense unrelated to the instant appeal, and officers searched him for weapons, handcuffed him, and sat him on a bench.  While Mr. Lewis was on the bench, he became irate with officers and began yelling "derogatory names" at them.  At one point, Mr. Lewis looked at one of the officers involved in the arrest and yelled that the officer "was lucky that [the police] didn't [arrest him] when he had his gun on him[] because he would have blown [the officer's] god-damned head off."  Mr. Lewis's choice of phraseology landed him a charge for attempted threats, and he was convicted of that offense following a bench trial.  The DCCA reversed his conviction on appeal.

Issue: Whether Mr. Lewis's exhortation satisfied the second element of the misdemeanor threat statute--"that the words were of such a nature as to convey fear of serious bodily harm to the ordinary hearer."

Holding: They did not.  The DCCA, channeling its inner sixth grade grammar instructor, held that "appellant's statement could not have induced fear of bodily injury in the ordinary hearer as it was a past conditional statement that hinged on an impossibility--appellant's possession of a gun at the time of arrest."  In other words, because Mr. Lewis could not have traveled back in time to arm himself for his arrest, no reasonable listener would interpret the statement as a threat to shoot the officer.

Of note: Although it is possible to commit the crime of threats by making a threatening statement that is "conditioned upon a future happening," a reviewing court must consider the "likelihood of the condition coming to pass."  To defend against threats charges in such cases, one must be prepared to argue that the condition is unlikely to occur and, thus, the conditional threat would not convey fear of serious bodily harm to the ordinary hearer.  CK.

Read the full opinion here.