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What You Say Can Be Criminal Intimidation

Watch Out!: What You Say (“Threaten”) Can Be Criminal Intimidation – Not Free Speech

We have all exercised our First Amendment Right to free speech at some point in time, perhaps even in a tense debate. However, in the heat of the moment, it is important to be aware that “the First Amendment. . . permits a State to ban a ‘true threat’. . . .”1 If this occurs, this is criminal intimidation and can result in arrest and conviction. This blog post explores this limit to help you avoid crossing the line.

Specifically, “where the person making the threat means to communicate a serious expression of an intent to commit an act of unlawful violence to a particular individual or group”, the First Amendment does not apply. What is key is not whether the speaker means to carry out the threat, but only whether he intends to place a victim in fear of bodily harm or death.

“Intimidation” is not criminal unless there is a (prior) lawful act that is being engaged in to which the aggressor threatens bodily harm or death in response to this lawful act. In a key case decided by the Indiana Court of Appeal recently, it clarified what constitutes a prior lawful act.2 Specifically, the victim, Mr. Kottcamp was in his house while his wife was on the front porch of their home consoling a neighbor’s wife involved in a domestic dispute.

The neighbor’s husband, Fleming came upon to Kottcamp’s porch, at which time Kottcamp stepped outside to protect his wife, and Fleming threatened to “beat (his) A–“. At trial, Mr. Kottkamp testified that Fleming’s words cause him physical fear. The prior lawful act by Kottcamp was stepping onto the porch to defend his wife; and he was threatened, placing him in fear for his safety or that of his wife, by Fleming’s statement.

Thus, the Court of Appeals affirmed Fleming’s conviction for criminal intimidation. Kottcamp’s act was (lawful) defense of his wife, which resulted in Fleming’s threat that caused him physical fear. The issue on appeal was whether the evidence supported a prior lawful act by Kottcamp that caused a threat rising to criminal intimidation; and the Court of Appeals stated that “it was reasonable to infer from the evidence that Fleming’s actions (threat) were prompted by Mr. Kottkamp stepping out onto his porch” to defend his wife.

Criminal law is very technical in many cases. Had there not been factual inferences that Kottkamp was engaged in a lawful act of coming to the aid of his wife, this conviction may have been reversed or there may have been no conviction at all. You have to show lawful action that results in a threat that causes physical fear to be convicted of criminal intimidation. This is the State’s burden to prove beyond a reasonable doubt. It almost did not in this case.

Thus, it is key with every criminal charge to carefully go through the facts with your defense counsel to determine if there are defenses or if the elements of the crime are met, such as if Mr. Kottkamp was not actually in fear or had not been engaging in a lawful act of coming to the aid of his wife with the threat.

Ciyou & Dixon, P.C. attorneys handle criminal cases throughout the State. This blog post is written as general educational material to show the line between free speech and criminal intimidation. Avoid the line and aggressively defend yourself if charged. This blog is intended to provide general educational information and is not intended as legal advice or a solicitation for services. It is an advertisement.

  1. Watts v. United States, 394 U.S. 705 (1969).
  2. Fleming v. State, 09A05-1703-CR-645 (Ind.Ct.App.2017).

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Dixon & Moseley, P.C., is a law firm located in Indianapolis, Indiana. We serve clients in six core practice areas: family lawappellate practicefirearms lawgeneral practicepersonal injury and criminal law.

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