In Milton v. U.S., decided by the DC Court of Appeals on December 24, 2015, the Court reversed Milton’s conviction for attempted threats against the arresting police officer.

Officers had responded to an unlawful entry call on July 5, 2015, and Milton having been identified as one of the culprits was placed under arrest, but while on the curbside and cuffed, uttered to one of the arresting officers that “take that gun and badge off and I’ll fuck you up,” and moreover, that “too bad it’s not like the old days where fucking up an officer is a misdemeanor.”

These words were uttered calmly and in a conversational tone but were the basis for the attempted threats conviction at the trial level.

The Court of Appeals enumerated the elements of the offense, that 1) the defendant uttered words to another person; 2) those words were of such nature as to convey fear of serious bodily harm or injury to the ordinary hearer…

The Court in reversing the conviction carefully construed the circumstances and the nature of the words uttered by the defendant and whether such in fact did or would have incited a reasonable fear of physical bodily harm on an ordinary hearer.

Specifically, because certain words are addressed to law enforcement during their performance of official duty – that does not necessarily mean such utterance constitutes a criminal treat.

Here the Court held in short that the second element of the offense was not established or proven beyond a reasonable doubt necessitating a reversal. That the words Milton uttered under the circumstances present — did not and would not induce fear of serious bodily harm or injury to the ordinary hearer, the arresting officer.

Milton’s statements “most aptly described as an expression of exasperation or resignation over the fact that appellant had just been arrested….”

The statements did not and could not have conveyed a threat of serious bodily harm or injury to the officer. Milton was handcuffed, surrounded by Officers, and calmly and conversationally uttered these words -– such surrounding circumstances do not prove present ability or a real intent to harm or even means to effectuate the threats.

The Court held that Milton’s statements read together “amount to a feisty lament, an expression of frustration over his arrest, rather than a serious threat of bodily harm.”  There was also no indication that the officer acted in any way to show he had taken the treats seriously or believed the threats to be more than an expression of frustration.