CrimProf Blog

Editor: Kevin Cole
Univ. of San Diego School of Law

Friday, April 12, 2024

Shafer on Threats, Stalking, and Counterman v. Colorado

Tory J. Shafer has posted Does a Stalker Need to Threaten Their Victim? In Counterman v. Colorado, the Supreme Court Shrugs (Criminal Law Bulletin, Vol. 60, Forthcoming) on SSRN. Here is the abstract:

True threat jurisprudence has been convoluted since its inception in 1969. The Supreme Court has consistently refused to set a clear constitutional standard for true threats, leading lower courts to individually decide the issue. In June 2023, the Supreme Court resolved the decades-long issue by requiring subjective intent and setting recklessness as the minimum subjective intent required for true threats. Going forward, in every true threat case, the prosecution must prove that the defendant consciously disregarded the risk that the recipient would be put in fear.

However, Counterman was convicted for stalking, not threats. The prosecution did not prove that he made a threat because it did not need to under Colorado’s statute. Regardless, the Supreme Court ruled on true threats without clearly disclaiming the stalking issue. Counterman blurred the line between true threats and stalking. This article surveys the history of true threat jurisprudence, outlines the constitutional debate of anti-stalking statutes, and analyzes Counterman v. Colorado. Ultimately, this article proposes a framework for judges to distinguish between stalking cases and true threat cases.

https://lawprofessors.typepad.com/crimprof_blog/2024/04/shafer-on-threats-stalking-and-counterman-v-colorado.html

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