New Jersey Supreme Court Decision: Terroristic Threats in New Jersey

On January 16, 2024, the Supreme Court of New Jersey decided State v. Calvin Fair, 256 N.J. 213 (2024), in which it addressed the question of whether a prosecution for terroristic threats under N.J.S.A. 2C:12-3(a), based on a mens rea of recklessness, is constitutional under the First Amendment to the United States Constitution and Article I, Paragraph 6 of the New Jersey Constitution. The Court held that the mental state of recklessness is sufficient to sustain a conviction for terroristic threats, with an objective component, that is, the State must prove that a reasonable person similarly situated to the victim would have viewed the message as threatening violence.

Facts and Procedural History of Terroristic Threats in New Jersey

The case began in February 2015, when the State Police executed a search warrant at defendant Calvin Fair’s home, seizing several firearms.

Thereafter, Fair made public Facebook posts referring to the raid and stated that he still had possession of other firearms. On May 1, 2015, during a domestic violence incident at his home, Fair became verbally aggressive with responding officers, and shouted that the officers should, “[w]orry about a head shot.” Approximately two hours later, Fair again posted on Facebook, stating, among other things, that he knew where the officers lived and what cars they drove. After reviewing the public Facebook posts, the police issued a terroristic threats complaint against Fair under N.J.S.A. 2C:12-3(a) and (b), charging him with threatening to commit violence. A grand jury subsequently indicted Fair for third-degree terroristic threats in violation of N.J.S.A. 2C:12-3(a) and/or b.

Recklessness as the Mens Rea for Terroristic Threats in New Jersey

Fair moved to dismiss the indictment, claiming the statute was overbroad for criminalizing terroristic threats made with a mens rea of recklessness. The trial court denied the motion. The jury ultimately convicted Fair of terroristic threats, but was not polled as to whether they found him guilty of N.J.S.A. 2C:12-3(a), (b), or both. The Appellate Division reversed the conviction, agreeing with Fair that the “reckless disregard” provision in N.J.S.A. 2C:12-3(a) was facially invalid under the First Amendment and also found the jury instructions were erroneous for failing to require unanimity on whether the violation was of subsection (a), (b), or both.
Constitutionality of N.J.S.A. 2C:12-3(a)

The New Jersey Supreme Court held that in a criminal prosecution for a “true threat” of violence under N.J.S.A. 2C:12-3(a), a mens rea of recklessness was sufficient for purposes of both the First Amendment to the United States Constitution and Article I, Paragraph 6 of the New Jersey Constitution.

Objective Standard for Terroristic Threats in New Jersey

However, the New Jersey Supreme Court held that an objective component is necessary for a prosecution for a threat of violence under N.J.S.A. 2C:12-3(a) to survive Constitutional scrutiny. Under the objective inquiry, the jury determines whether a reasonable person would have viewed the defendant’s words as threatening violence—a determination undertaken not from the perspective of an anonymous ordinary person, but from the perspective of a reasonable person similarly situated to the victim. The jury must consider the victim’s position, including the circumstances and relationship between the parties. Considering the perspective of the victim protects against convictions based on hyperbole or jest and allows for prosecution of genuine threats of violence. This ruling is critical in ensuring that terroristic threats in New Jersey are handled with an appropriate balance of free speech rights and public safety.

Jury Unanimity Requirement for Terroristic Threats in New Jersey

Lastly, the New Jersey Supreme Court found that the jury must unanimously agree on whether a defendant violated subsection (a), (b), or both of N.J.S.A. 2C:12-3, as they constitute separate crimes. The terroristic threats statute does not list alternative means of committing a single offense but rather distinguishes between different types of threats (e.g., threats to commit violence in reckless disregard of terror under subsection (a), or threats to kill under subsection (b)). Thus, the Supreme Court affirmed the Appellate Division’s decision in part, and reversed and remanded in part, for a new trial based on the erroneous jury charge.

Key Takeaways on Terroristic Threats in New Jersey

The New Jersey Supreme Court’s ruling in State v. Fair reaffirmed that the mental state of recklessness is a constitutionally sufficient for prosecuting true threats of violence under N.J.S.A. 2C:12-3(a). The Court further ruled that an objective, “reasonable victim” standard must be applied to assess whether a statement constitutes a threat, and jurors must unanimously agree on which subsection of the terroristic threats statute a defendant violated. This decision sets important precedent for future terroristic threats prosecutions in New Jersey..

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