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Crossing the threat threshold


When it is jus talking trash, when is it a real threat? The difference isn’t small: One may be an annoyance, and the other a crime and possibly an alert to imminent harm. It’s a legal question with absolutely practical applications.

The issue came up in Washington v. Glen Arthur Schaler, decided today by the Washington Supreme Court.

The law itself isn’t of terrific help here. Washington law says a threat – this being a form of “unprotected speech” – is “a statement made in a context or under such circumstances wherein a reasonable person would foresee that the statement would be interpreted as a serious expression of intention to inflict bodily harm upon or to take the life of another person.” Sorry, that doesn’t allow for a really objective standard – you and I, reasonable persons both, may disagree about whether a statement was a threat, an offand or angry statement, or even a joke.

To an extent, the Supreme Court punted on this one. It found error in the way a jury was instructed, keeping the case alive. What it said by way of clarifying what a threat was is this: “The speaker of a “true threat” need not actually intend to carry it out. It is enough that a reasonable speaker would foresee that the threat would be considered serious. Importantly, only threats that are “true” may be proscribed. The First Amendment prohibits the State from criminalizing communications that bear the wording of threats but which are in fact merely jokes, idle talk, or hyperbole.”

The whole story of the Schaler case makes for a fine case study of divining the fuzzy lines in this area. Its retelling in the court’s decision follows on the jump.

On the morning of August 10, 2005, Director Tonya Heller-Wilson of Crisis

Services for Okanogan Behavioral Healthcare received a call from Glen Schaler, who claimed to have killed his neighbors.1 Schaler was crying and hysterical. He told Heller-Wilson that he awoke from a dream and thought he had killed his neighbor, and that killing his neighbors had been occupying his daytime thoughts, too. Heller-Wilson testified that Schaler seemed extremely upset at the prospect that he might have hurt someone. He threatened to kill himself. Heller-Wilson had a co-worker contact the police.

Deputy Connie Humphrey arrived at Schaler’s residence several minutes later, while Schaler was still on the phone with Heller-Wilson. When Humphrey knocked on Schaler’s door, Schaler told her to “go away” and said, “‘I dreamed I slit her throat.'” Verbatim Report of Proceedings (VRP) (Feb. 6, 2007) at 207.

Schaler handed Humphrey the phone through the doorway, and Heller-Wilson asked Humphrey to bring Schaler in for an evaluation if the situation did not turn into a criminal investigation. When Humphrey entered, she observed that Schaler was “sweating and panting,” as though he “was having difficulty getting a complete breath.” Id. at 212. Schaler indicated he had not taken his medication that morning.

Humphrey found no evidence that any neighbors had been injured and convinced Schaler to accompany her to Mid Valley Hospital for an evaluation. At Humphrey’s urging, Schaler took his medication before leaving for the hospital.

Deputy Humphrey brought Schaler to the hospital and left him in Heller-Wilson’s care. Humphrey was called back to the hospital twice during the next several hours to assist Heller-Wilson. Humphrey tried to get Schaler to comply with the mental health staff, who at one point attempted to give Schaler an injection. In response, Schaler stated, “‘[B]ring it on, cause there was going to be a fight, and that someone was going to get hurt[,]’ [h]e could guarantee it,” but then told the staff how he had previously suffered back and neck injuries. Id. at 220. Schaler also said that “next time he was going to get a bunch of guns, and it would be [a] blood bath.” Id. Based on his behavior, Schaler’s commitment status was changed from voluntary to involuntary because Heller-Wilson believed Schaler was a danger to himself and to others.

Heller-Wilson came “in and out of the room” while Schaler was receiving medical attention at the hospital, including the drawing of his blood. Id. at 250. She testified that Schaler was having some sort of mental breakdown. During Heller-Wilson’s contact with Schaler, he repeatedly referred to two neighbors, Kathy Nockels and Denise Busbin. Schaler “was pretty specific that he, he wanted to kill his neighbors.” Id. at 247. Schaler specifically said that “he wanted to kill them with his bare hands, by strangulation,” although he also said, “‘I hope I didn’t really kill her.'” Id. at 248, 267. Schaler said that he had been planning his neighbor’s death for months and had dreamt about it, but in the dream she hit him and scratched his face. Heller-Wilson tried to ascertain whether Schaler was making a serious threat:

I can’t recall specifically how I asked him. I, I know that you don’t, it’s
part of my job to try to keep people out of the hospital. And when people
tell me that they feel like they want somebody to die, or they want to die, I
always go into the explanation that you know, there are times that I wish I
were dead, but I don’t have a plan to kill myself. I mean, you know, there
are just times, and there’s times that I wish my, my boss didn’t exist, but I
don’t have a plan to kill him. And I kind of went that way, and I said “You
know, sure, you might wish that they weren’t there. Maybe you’re [sic] life
would be a little bit easier.” But he said specifically, he wanted to harm them.

Schaler repeated his desire to kill his neighbors to Heller-Wilson over
the approximately four hours she spent with him. He appeared angry when he made these comments and never said he was not serious or did not mean what he said.

Heller-Wilson believed Schaler had made a “viable threat” and so, pursuant to her duty to warn, she contacted Nockels and Busbin to inform them of Schaler’s comments. On cross-examination, Heller-Wilson acknowledged that the situation was complicated by the fact that Schaler initiated contact with her office, was clearly agitated, and was requesting help from her as a crisis counselor.

Schaler told Heller-Wilson of an incident on June 1, 2005, involving a dispute
over fruit trees, which he said was one reason that he wanted to kill his neighbors. Schaler believed that a row of Busbin’s fruit trees was interfering with his rightful access to an alley. Nockels called the police after she noticed Schaler cutting the trees with a chain saw. When Nockels asked Schaler to stop, Schaler raised his chain saw toward Nockels and told her to “stay out of this.” VRP (Feb. 7, 2007) at 10-11. Deputy Michael Blake arrived in response to the 911 call. After Blake arrived, Schaler said that “‘it was obvious that somebody [was] going to die.'”

Schaler repeated this statement, and Blake asked what Schaler meant and why it was obvious. Schaler did not answer. Blake informed Schaler that Blake took Schaler’s statement very seriously, and after a long pause,Schaler stated that he thought he (Schaler) would be the one to die, citing an incident where he claimed Busbin’s husband had threatened him with a shotgun.

Blake asked Schaler if he thought he was going to kill someone, and Schaler replied that “when he [Schaler] became angry, he did feel like that he wanted to kill someone, and that that was a natural human response.” Id. at 291. He did not say anything more specific.

Nockels testified that she believed Schaler was going to kill her as a result of the fruit tree incident. She felt similarly after Heller-Wilson warned her of Schaler’s comments at the hospital. Busbin felt Schaler was capable of carrying out the threats. Both women obtained protective orders against Schaler after the tree incident and thereafter made sure that each woman always knew the location of the other.

Schaler was charged with two counts under the threats-to-kill provision of the harassment statute, RCW 9A.46.020(1)(a)(i), (b), (2)(b)(ii), for his statements to Heller-Wilson regarding Nockels and Busbin. Schaler successfully requested a jury instruction requiring the jury to find that he subjectively intended to communicate a threat. No party requested an instruction as to the definition of “true threat,” nor did Schaler object to the State’s proposed definition of “threat,” which was not limited to true threats. The term “true threat” did not appear in any of the jury instructions. Schaler was sentenced to two 10-month terms of confinement to be served concurrently.

On appeal, Schaler argued that the evidence was insufficient to support the jury’s verdict. He also challenged the jury instructions for the first time, arguing that the First Amendment requires an explicit “true threat” instruction. The Court of Appeals held that the trial court erred by failing to instruct the jury on “true threats” but that any error was harmless beyond a reasonable doubt. It further held that the evidence at trial was sufficient to support Schaler’s conviction. Id. at 644. We granted review.

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