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03 Oct 2012

Conditional Statement Not A Threat For Aggravated Assault Purposes

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TMB was arrested on October 30, 2007, for charges of aggravated assault and domestic battery. Police claimed that TMB said, “If you keep pissing me off, I could kill you”. Police made the arrest with no evidence of injury to the victim and no evidence that TMB intended to follow through on the threat. TMB had no criminal history and no history of domestic violence with the victim.

The victim was completely cooperative and never intended for TMB to be arrested. She believed that police took the statement out of context. Shea greed that there was no evidence of injury or violence.

The case highlights the problems of prosecuting a conditional “threat” in the absence of evidence of preparation to carry out the supposed threat. An example of a conditional statement might be, “If you take one more step, I’ll…”. The declarant is not threatening to do the act, unless and until a certain event takes place. In some cases, the conditional event involves a possible confrontation, either verbal or physical. It is not an assault to make a conditional statement.

In other cases, the conditional event is intended as humor or satire. For example, “If you make that face again, I’ll die with laughter”, or “If you don’t stop the car soon, I’ll explode”. In these examples, no one really dies of laughter nor explodes because the car does not stop. These are examples of mannerisms of speech.

Police are prone to interpret a mannerism of speech in a way other than the speaker might have intended. So in this case, police interpreted playful banter as a criminal act.

In light of these circumstances, the State Attorney’s office filed a No Information on November 21, 2007. The No Information effectively dropped all charges against TMB.

Based upon the fact that TMB had never been arrested, Attorney Garland initiated the process of obtaining an expungement of the arrest. An FDLE record search confirmed the lack of a prior record. Therefore, FDLE issued a Certificate of Eligibility for an expungement on May 20, 2008. St. Lucie County Circuit Judge Cynthia Cox granted the expungement on June 23, 2008.

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