Q: I have two questions: We were at the beach, and a dispute broke out with a guy nearby. He said we stepped on his towel, got sand on his food, and he threatened to “take me out.” He made a number of hostile gestures. We thought he was going to attack, in fact that he was crazy, so we moved to another, distant location. But, is what that guy did criminal?
L.A., Hawthorne
A: Freedom of expression is a protected right, pursuant to the First Amendment of the United States Constitution. California Penal Code Section 422, however, makes it a crime to: (a) threaten a person with immediate harm, (b) when it was intended the statement be understood as a threat, and (c) the statement is communicated with a serious intention to carry it out, (d) the victim feared for his or her own safety, or that of his or her immediate family, and (e) the victim’s apprehension was reasonable.
Two examples of a criminal threat: A jilted boyfriend texts his ex that he is going to set fire to her apartment. Another, while holding a gun an individual threatens to shoot another person.
The combination of hostile gestures, and the verbal threat you describe, may indeed have risen to the level of an illegal threat. Not sure if anyone was nearby to report it to, or if a cell phone call would have been helpful. Getting promptly to a distant location was smart.
Q: My other question: If someone makes gestures they are coming after you, or is going to hit or choke you, is that criminal? No words, just the way they act.
L.A., Hawthorne
A: Conviction for a criminal threat based on gestures alone is (a bit to my surprise) rather challenging. On point is the California Supreme Court decision in The People v. Mario Alberto Gonzalez.
There, an off-duty police officer was dining with friends. He saw a former high school classmate, smiled at her and she smirked in response. Several men seated there had gang tattoos, and stared at him in a “confrontational way.” One of them (Mr. Gonzalez), had “JT”…
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