The New Jersey Supreme Court concluded with the following in relevant part: But we have previously held that for a prosecution under N.J.S.A. 2C:12-3(b), which requires that a threat be made “under circumstances reasonably causing the victim to believe the immediacy of the threat and the likelihood that it will be carried out,” proof “must be measured by an objective standard” that must include consideration of “a victim’s individual circumstances and background.” Cesare v. Cesare (1998) (emphasis added).
Similarly, in H.E.S. v. J.C.S., we explained that the “cause a reasonable person to fear” element in N.J.S.A. 2C:12-10(b), which criminalizes domestic-violence stalking, requires consideration of “whether a reasonable person in the victim’s situation, knowing what the victim knew about the defendant under the totality of the circumstances, would have feared bodily injury as a result of the defendant’s alleged speech and conduct.” Our interpretation was in keeping with the Legislature’s instruction in N.J.S.A. 2C:12-10(a)(4) that, “as used in this act, ’cause a reasonable person to fear’ means to cause fear which a reasonable victim, similarly situated, would have under the circumstances.”
We therefore hold that the objective inquiry, in which the jury determines whether a reasonable person would have viewed the defendant’s words as threatening violence, must be undertaken not from the perspective of an anonymous ordinary person, but from the perspective of a reasonable person similarly situated to the victim. As the Indiana Supreme Court has explained, because “the particular facts and circumstances known to each victim are the very facts from which threatening implications are generally drawn,” the objective element of a true threats prosecution must consider “whether it was objectively reasonable for the victim to fear for their safety” in the context of their experiences with the perpetrator. Brewington v. State, 7 N.E.3d 946, 969 (Ind. 2014) (requiring a “‘reasonable victim’ test,” rather than a “reasonable person” test, in a true threats prosecution, to capture “what a reasonable person would perceive if similarly situated to the victim” (emphasis added)).
This is another way of saying that context matters. Considering the perspective of one similarly situated to the victim, which entails consideration of prior interactions between the parties, protects against convictions for statements made in jest, political dissent, or angry hyperbole, while allowing the State to prosecute true threats of violence that would instill fear of injury in a reasonable person in the victim’s position. The inquiry in this case is thus not whether any ordinary person would have feared for their safety, but whether a reasonable police officer in Officer Healey’s position would have feared for their safety, given the entire interaction with defendant.
We thus remand for a new trial correctly charging the jury on both the objective and subjective components of N.J.S.A. 2C:12-3(a), consistent with this opinion.
At retrial, a good defense may lie in the fact that police officers have people make nasty threats to them all the time while making arrests. Rarely, however, do defendants make good on these threats.