Menacing Meaning Under the Law
As an overall concept, the meaning of menacing is relatively clear. It refers to an action that threatens or harms another person. It is also a criminal behavior that is dangerous in many contexts, but the legalities of what constitutes menacing vary widely from state to state and country to country.
For example, many legal jurisdictions classify menacing as either a felony or a misdemeanor crime. In some jurisdictions, it can be "aggravated" if a firearm or other deadly weapon is used. Most jurisdictions require that the alleged behavior cause physical injury or a reasonable fear of physical injury. An example of menacing is pointing a gun at another person, a form of assault . Some jurisdictions refer to menacing as "assault" and define it as an intentional act causing apprehension of physical injury. Further down the spectrum of menacing, the law in many jurisdictions further differentiates between intentional acts that cause a person to fear that serious injury will occur. Jurisdictions also differentiate between acts that engage in a pattern of menacing behavior versus isolated instances of threatening acts. There are many variations in menacing laws state to state. For example, North Carolina might have state law directed to menacing; California does not. There are also federal laws that include offense enhancement for menacing and interstate stalking offenses. For example, both statutory provisions address abuses of power as it relates to menacing.
What Are the Elements to a Menacing Charge?
In New York, menacing is typically classified as either a D felony or an E felony (depending on the underlying circumstances). Its base definition is the forseeable substantial risk of physical injury. However, there are multiple distinguishing elements that are unique to each individual statute and level of offense.
Menacing in the First Degree
The most serious form of the offense is the Class D felony menacing in the first degree under Penal Law §120.13. It generally requires proof that the defendant:
Menacing in the Second Degree
The Class E felony charge under Penal Law §120.14 requires proof that the defendant:
Menacing in the Third Degree
Under Penal Law §120.15, the defendant commits menacing in the third degree when by physical threat, he has reasonable cause to believe that a person will couse physical injury to another. Here, the defendant:
Menacing in the Second Degree as a Hate Crime
This is a class E felony (Penal Law §120.16), which is a slight enhancement from the regular menacing charge. It requires proof that the defendant:
Menacing a Child Less than Seven
This lesser Menacing charge to protect children, what is left of a once more serious Penal Law §120.19, is just a violation punishable by up to 15 days in prison. The conduct itself requires proof that the defendant (Penal Law §120.15 here):
The element of sufficient intent is stressed by the penal law itself through its use of the words "with intent" three times in the statute, which is further confirmed by the inclusion of the word "recklessly" in the statute. Thus, the criminal statute will be satisfied by evidence that the defendant intended to make a physical threat to a victim.
The general element of "threat" is also explicily defined in the penal statute. Sufficient proof of this element requires evidence that the defendant threaten the victim with a promise of criminal intent.
The foregoing examples are virtually the same for menacing as a hate crime. Thus, the principal difference between a minor offense and an E felony is the presence of hate.
Menacing in the Legal System
If you’re wondering what can happen to you if you are charged with menacing, the answer is a bit complex. Menacing can be charged as either a felony or a misdemeanor, depending on both the degree and the underlying charge. For example, Assault in the Third Degree is a felony charge. You can also be charged with menacing to a police officer – this is a felony charge. These are the two felony level charges that can be filed under the menacing statute. If you are charged with felony level menacing (Assault in the Third Degree or Menacing a Police Officer), then you’ll be facing up to seven years in prison and/or a fine of up to $5,000. Felonies tend to leave a bad mark on a person’s permanent record and must be revealed at job interviews, if the interview goes past initial rounds of questioning. Additionally, sex offenders must register as such should they be placed on sex offender registry. Any felons are not allowed to vote, own firearms, or may see restrictions from pursuing certain types of licenses. If you have no prior criminal record, it is likely that a good criminal defense attorney can negotiate a resolution favorable to you that does not have the overwhelming consequences that can come with a felony conviction and sentence. Even if you plead guilty to a felony, there are ways to alleviate the potential consequences after some mechanism of punishment has been completed like probation. If you are charged with misdemeanor level menacing (Menacing in the Second Degree or Menacing in the Third Degree), then you’ll be facing up to one year in jail and/or a fine up to $1,000. Misdemeanors are less nefarious and often can be allowed to be wiped from your permanent record if a plea agreement so provides. However, if a plea agreement doesn’t provide for this, you will have to keep this record on your permanent record and disclose it when applicable. The victim of a menacing charge may be eligible for a temporary or permanent restraining order through family court. Since menacing most often occurs in relationships, the victim may wish to obtain a restraining order based on the allegation of menacing, and a good criminal defense lawyer can argue against this position on your behalf. Restraining orders can also show up on your criminal record, so it’s in your best interest to stop this as soon as possible.
Defending Against the Crime of Menacing
One common defense to a menacing charge is to attack the existence of an intent to threaten or intimidate with a physical threat. For example, where there has been off color or even vulgar speech directed at another but with no specific intent to threaten that person, the victim may in fact be exaggerating the ill effects of the speech. A friend of mine has told me to buzz off on multiple occasions, but he does not truly mean it and neither do I. When the speech is delivered without the required intent and not in conjunction with accompanying physical actions, there should be no criminal prosecution. Absent a clear criminal intent, such a charge would not stand up in court.
A defendant can argue that the threat posed by the charged conduct was unreasonable and excessive under the facts and circumstances of the case. If a person acts aggressively toward another or tries to start a fight on multiple occasions without making any attempt to follow through with the threat, a prosecutor must assess whether there was indeed a reasonable fear of physical harm. If the altercation went no further than words , an experienced defense lawyer can argue that the actions clearly do not amount to the criminal act of menacing.
In many instances when confronted with the charged conduct, a person may react physically or verbally towards the person allegedly committing the unwanted advance or speech. In the heat of the moment, while the second person is experiencing an emotional reaction as the victim of the situation, a defendant can argue that his or her response was purely a fight or flight reaction, and not clear intent to cause harm, intimidation or physical injury.
A potential defense to a charge of menacing is self-defense or defense of others. In simple terms, if the interaction arose out of a perceived threat to cause physical injury to him or her, a person may have the ability to defend themselves or another without committing the crime of menacing.
A defendant can also argue that the alleged threat was not credible or did not put the perceived victim in fear of his or her safety. If the conversation did not refer to sexual violence or physical harm, a defense lawyer may be able to effectively argue that no credible threat existed and therefore the crime did not occur.
How Menacing Differs from Other Offenses
The crime of Menacing has certain close cousins such as Assault, Harassment, Stalking, Reckless Endangerment and a few others. Aside from that list, there are common law crimes and torts such as Terroristic Threats, Brandishing, and even Assault Weapon violations.
Assault and Menacing are often confused. Assault requires a physical injury to be inflicted upon your target. Menacing requires merely an action that places someone in reasonable fear of "physical injury" or serious physical injury. Another way to think of this statutory language is that no actual physical injury need be done – only a fear of some future physical injury – a very different concept.
Assault also requires a criminal intent to inflict the injury. Menacing requires an intent to place a person in fear of a future physical injury, or intent to actually impede or injure his/her physical safety. A simple case of menacing may not even involve any physical contact with the target. For instance, someone who points a finger at someone else several times while menacingly proclaiming "I’m getting you next!" will most likely be guilty of menacing. If that person was instead actually pointing something at someone (a gun, knife, baseball bat, etc.) he may very well be guilty of menacing, and assault if he makes contact with the object and/or requires medical attention.
Menacing and Harassment do have much in common. In fact, menacing is a form of harassment – a specialized form. As such, menacing usually includes an in person interaction (except in the case of menacing by a threat) whereas a charge of Harassment may be levied upon a person for writing or calling someone with a coarse communication.
When a message is sent to another accusing them of some type of illicit behavior, the sender may be guilty of harassment if his choice of words is particular harsh, caustic and/or inflammatory, regardless of whether he ever sees the accused.
The Stalking statutes, both felony and misdemeanor, discuss course of conduct toward a specific person that places them in reasonable fear for their own safety. If there is a face to face encounter, menacing is the appropriate charge. If there is a pattern of threats and another form of harassment (see above) then stalking may be appropriate.
Reckless Endangerment usually involves a situation where an innocent third party is placed in reasonable risk of physical injury due to the conduct of the actor. This is a less serious felony than the stipulations set forth in the menacing statutes. That said, it is a class A misdemeanor, punishable by up to a year in jail or several years’ probation.
Menacing and Brandishing can get a little tricky where guns and other "deadly weapons" are involved. The specific statutory discussion requires a discussion of the Mens Rea, or "guilty mind" element of the offense. Brandishing itself, as written, includes the requirement that you use, display, point, or otherwise brandish a firearm or anything you could reasonable convince someone is a firearm.
The statute has an exception for a permit holder who merely displays their firearm for an otherwise lawful purpose. So merely showing it doesn’t fit this definition. If they continue to hold it in a menacing fashion, however, the statutory exception slips away.
Brandishing is a class B misdemeanor, and the act need not be against a person – you may brandish your sidearm toward a building or at a car acting in a reckless fashion.
Menacing in Real-World Cases
To better exemplify how the laws, definitions and penalties regarding menacing are applied in the real world, two notable cases were selected for analysis. The case of People v. D’Intino, 798 N.Y.S.2d 89 (Ct. App., 2004) involves the defendant, Mr. D’Intino, allegedly harassing a neighbor by banging on his door and yelling profanity-laced threats. Although the evidence of this harassment was dismissed, the defendant was charged with menacing not other person but the neighbor’s cat. While the lower courts dismissed the charge, the New York Court of Appeals reversed the action, finding that a cat falls within the category of persons protected by the state menacing statutes. In reaching this decision, the court explained that: If the Legislature intended to limit a menacing prosecution to putative threats against humans, it surely was capable of so stating. It is true, as the Appellate Division noted, that the statute applies to situations in which the qualifier "another" was deliberately omitted (see, e.g., Penal Law § 120.14 [1] [menacing a person]; [2] [menacing a person with a weapon]; [3] [menacing with intent to cause physical contact or imminent danger there)(emphasis added]. But this construction does not inevitably lead to the conclusion that "another" is out of place in § 120.15(1). It could simply mean that a threat against a "person" carries a particularly severe penalty. Still, nothing in the text of § 120.15(1) affirmatively relieves the fact-finder of the duty to decide whether particular threats were aimed at "person[s]" or "animal[s]." Although the opinion does not make clear, it is assumed that the criminal charges brought against Mr. D’Intino were misdemeanors. Based on this assumption , the menacing laws of Connecticut spell out a maximum penalty of one year behind bars without committing additional crimes. Had the defendant in People v. D’Intino been tried under Connecticut menacing laws, he may have had his mug shot taken and spent a few nights in jail for allegedly threatening the neighbor’s cat. The case of State v. Knight, 6 Conn. App. 342 (Conn. App.,1986) involves an individual who was charged with first degree menacing for allegedly intimidating a small group of police officers by raising a loaded rifle and using threatening language. The defendant testified that he did raise the rifle but only just to show several of the officers seated outside his home the scope, which he had just repaired. The jury found him guilty, though, since a reasonable person would have found such an action menacing. The Connecticut Appellate Court affirmed the first degree menacing conviction stating that: Even though it is a difficult burden for the jury to ascertain the actual intent of a defendant that is to be determined by the trier of fact, it is an essential element of the offense charged. A claim that the defendant raised the rifle only to display it to one of the officers goes to the defendant’s intent of whether he did not put the gun down when he saw the officers sitting outside. Inasmuch as the defendant’s act of displaying the rifle was complete upon the raising of the rifle, the intent issue was one of fact for [the jury]. Had the state of Connecticut been ruling the man charged with menacing in State v. Knight, it is likely that the defendant would have had a little more trouble convincing the jury that the raising of a loaded assault rifle was not a menacing action.
+ There are no comments
Add yours