Generally, menacing is the crime of using threats or actions to put someone else in fear of imminent danger, injury, or death.

Some states call the offense menacing, while others call it

• making criminal threats or
• harassment.

Some common defenses to the charge are that

• the danger was not imminent,
• the threat was vague, or
• the victim’s fear was unreasonable.

What is the offense of menacing?

Menacing is generally the crime of using threats or conduct to put someone else in fear of imminent danger. Different states use slightly different definitions of the offense, though.

Some require that you act with intent, while others only require you to act knowingly. Some increase the penalties if a weapon was used.

Colorado law

Menacing in Colorado prohibits using threats or actions knowingly to put, or attempt to put, someone else in fear of imminent serious bodily injury or death.¹

The offense is usually a class 1 misdemeanor. However, it becomes a class 5 felony if you use a deadly weapon or threaten to use one.²

Oregon law

In Oregon, menacing is the crime of intentionally attempting, by words or conduct, to put another person in fear of imminent and serious physical injury.³

New York law

Some states, like New York, have multiple degrees for menacing charges. The difference is based on the conduct and your criminal background:

• third-degree menacing prohibits putting another person in reasonable fear of physical harm or death,⁴
• Second-degree menacing prohibits committing third-degree menacing while displaying a deadly weapon or a dangerous instrument,⁵ and
• first-degree menacing, which is the crime of second-degree menacing if you have a prior menacing conviction in the last 10 years.⁶

These offenses range from a class B misdemeanor to a class E felony.

What are some common defenses?

There are several potential defenses to a charge for menacing. Some of the most common are:

• your conduct or statement was not threatening,
• the danger was not imminent,
• the threat was too vague,
• the alleged victim’s fear was unreasonable,
• the alleged victim was not actually scared,
• you did not intend to be threatening or did not know that you were being threatening,
• you were acting in self-defense, and
• the alleged victim is making false accusations.

Defenses based on your conduct

Many defenses have to do with the adequacy of the allegedly threatening statement or conduct. To rise to the level of a crime, the threats have to be specific. If the threat is vague or uncertain, it is generally insufficient.

The threats also have to warn of harm that is imminent. A threat of harm to happen at some time in the future, or that is conditional on something else happening, is rarely enough.

If the alleged victim of the threats was showing aggression towards you, you may be able to claim that your threat was an act of self-defense.

You can also argue that you did not know your conduct was threatening. This is an especially strong defense in states that require intentional conduct for menacing charges.

Defenses based on the victim’s conduct

Some of these defenses focus on the alleged victim. The victim must have been scared, which must have been reasonable. If a normal person would have been afraid, but the alleged victim was not, it is not menacing.

Conversely, if the alleged victim was scared, but a normal person in their shoes would not have found the threats to be frightening, it is not menacing.

Another defense against a menacing charge that focuses on the victim is that they are making false allegations. Menacing charges frequently stem from domestic violence situations. If you can show that the alleged victim is making the accusation, knowing that it is groundless, it can be an effective defense.

What are the penalties for a conviction?

Generally, states penalize menacing convictions as high-level misdemeanors or as low-level felonies. Misdemeanors can carry up to 1 year in jail. Low-level felonies carry a few years in prison.

Colorado law

If no weapon is used in the offense, menacing is a misdemeanor. Convictions carry up to:

• 364 days in jail, and/or
• $1,000 in fines.⁷

If a weapon is displayed, or if something is used that the victim would reasonably believe to be a weapon, it is a felony. Convictions carry:

• 1 to 3 years in prison, and/or
• $1,000 to $100,000 in fines.⁸

Oregon law

Menacing is a class A misdemeanor. These offenses carry up to:

• 364 days in jail, and/or
• $6,250 in fines.⁹

What is the law in California?

In California, the crime is called making criminal threats. The offense is codified in California Penal Code 422 PC. It used to be making terrorist threats. The offense prohibits

1. threatening another person with immediate harm with
2. the intention of causing reasonable and sustained fear, and
3. actually creating that fear.¹⁰

Elements

The elements of the crime are:

• you willfully threatened to kill or to seriously injure someone else,
• you made the threat verbally, in writing, or through an electronic communication device, including via text message,
• you intended for your statement to be received as a threat,
• the threat was clear, immediate, unconditional, and specific enough to convey a serious intention and the immediate prospect that it would be carried out,
• the person being threatened felt a sustained fear for their safety or for the safety of their immediate family members, and
• the fear of the person being threatened was a reasonable fear under the circumstances.¹¹

Prosecutors have the burden of proving each element of the offense beyond a reasonable doubt.

Importantly, in California, you cannot defend yourself with the fact that you did not have the ability to carry out the threat.¹² However, unlike in many other states, California’s law does not cover mere gestures or physical actions. A verbal or written statement is required under California’s criminal law.¹³

Penalties

Just like in other states, a conviction for making criminal threats in California can be charged as a misdemeanor or as a felony. In California, these are known as wobblers. Law enforcement will choose how to file the criminal charges based on the:

• specific facts of the case, and
• your criminal record.

Misdemeanors

Misdemeanor menacing convictions carry:

• up to 1 year in county jail,
• up to $1,000 in fines, and/or
• misdemeanor (summary) probation.¹⁴

Felonies

Felony convictions carry:

• up to 3 years in state prison,
• up to $10,000 in fines, and/or
• felony (formal) probation.¹⁵

Additionally, felony convictions for making criminal threats count as a strike under California’s three strikes law.¹⁶ This will require you to serve at least 85 percent of the sentence behind bars before becoming eligible for release on parole. It will also lengthen the sentence for any subsequent felony conviction.

Additional charges and penalties

Brandishing a deadly or a dangerous weapon in order to make the threat will add an additional and consecutive 1 year prison sentence.¹⁷

You can also face multiple counts of making criminal threats. This can happen if the threats were made:

• against different people,
• on more than one occasion, or
• for different objectives.

In addition to fines, probation, and jail time, you may also be subject to

• a restraining order or
• a protection order.