Threatening Public Officers, Public Employees and School Officials – Penal Code Section 71

All too often, school officials and other public employees become the target of threats and other forms of harassment. Under California law, anyone who attempts to extort action or inaction on the part of public officers by way of making threats is punishable under Penal Code Section 71. The perpetrator must specifically intend to interfere with the public employee’s official duty.

Penal Section 71 was drafted to protect the following individuals:

1. Officers or employees of public educational institutions;
2. Officers or employees of private education institutions;
3. Any public officer or employee.

Elements of the Offense

To prove a violation of Penal Code Section 71, prosecutors must prove the following beyond a reasonable doubt:

1. The defendant threatened to injure the public official or property;
2. The threat was directly communicated;
3. The defendant had the intent to influence the victim’s official duty;

AND

4. It must reasonably appear to the recipient that such threat could be carried out.¹

California courts have repeatedly rejected arguments that Section 71 violates a defendant’s First Amendment² right to freedom of speech.³
A threat will be deemed to be “directly communicated” if it was made under circumstances that were designed to clearly intimidate the recipient.⁴ The communication is still deemed “direct” if the perpetrator calls the intended victim’s secretary or some other intermediary and leaves a message that is later communicated to him.⁵ Modern day forms of electronic communication would also apply via the internet (email / Facebook / etc.)

Examples of Section 71 Violations

• John is a 6’3” high school senior. He threatens to come to his history teacher’s home and “slap the daylights out of her” if she fails him. John is concerned that he will lose his football scholarship if he doesn’t graduate. The history teacher fears his threat.
• An employee of a transportation agency becomes angry at a supervisor and leaves a voicemail message for him. The message warns the supervisor to stop harassing him with job-related actions or he will come down with a gun and “blow his brains out.”⁶ The supervisor is reasonably afraid of the employee after hearing the threat.

Potential Defenses

Every criminal case turns on its unique facts. However, the following defense should be considered for any Section 71 violation:

1. No threat was made. The words, actions and conduct underlying the prosecution’s allegations should be closely scrutinized. Words and actions can often be misunderstood, taken out of context or intentionally misrepresented.
2. Intent. Penal Code Section 71 is a specific intent crime. Pranks, misunderstandings and insane threats are not covered by statute.⁷ The totality of the circumstances surrounding the alleged threat should be closely examined, and all percipient witnesses should be expeditiously interviewed. Because the offense is a “specific intent” crime, evidence of voluntary intoxication or mental impairment may be considered when determining the suspect’s intent.
3. There was no reasonable prospect that the threat could be carried out. For example, the case fails if the accused wrote an offensive letter interpreted by the recipient as a threat. Based on the totality of the circumstances, however, the recipient had no reasonable belief that the outlandish threats would ever be carried out.⁸

Punishment

First-time offenders may be charged with either a felony or a misdemeanor.⁹ If the prosecutor proves a prior conviction under Section 71, second time offenders will receive a felony conviction.¹⁰

1. As a misdemeanor and imprisonment in the county jail for up to 1 year;
2. As a felony punishable by local prison for up to three years (16 months, 2 years or 3 years) pursuant to Penal Code Section 1170(h). When felony probation is granted, the defendant may serve a local jail sentence of up to 365 days in custody.
3. By a fine not to exceed $10,000 or by both a fine and imprisonment.
4. Firearms prohibition: A felony conviction carries a lifetime ban from owning a firearm. A misdemeanor conviction bars the defendant from owning or possessing a firearm for 10 years.¹¹

Commentary

California law enforcement officials now take any threat to public employees, and the staff of public and private educational institutions extremely seriously given acts of heinous violence that have occurred at government offices and educational campuses. Anyone suspected of such an offense should expect an immediate and aggressive investigation by local law enforcement officials. Because the statute carries felony sanctions, investigators are empowered to utilize search warrants and any other necessary tool to investigate a threat to public employees or school officials.

Section 71 is extremely broad in its focus. Notice that it penalizes threats of lesser violence (i.e., a threat to “slap” a teacher), and even threats made against property. Rest assured, in more aggressive law enforcement jurisdictions such as Ventura and Kern counties, prosecutors will use more punitive statutes whenever possible. For example, Penal Code Section 422 would most often be utilized if the threatening party expresses a desire to inflict great bodily injury or death. Section 422 is a “strike offense” under California’s Three Strikes Law.

Anyone suspected of violating Penal Code Section 71 should immediately seek the advice of an experienced criminal defense attorney. A quick and competent investigation may be critical to a successful outcome in court. You should refrain from speaking to a law enforcement officer concerning any accusation made against you, at least until you have consulted with an attorney. It is strongly suggested that if you are asked to give a statement by a law enforcement official, you should firmly invoke your right to have an attorney present upon questioning and your right to remain silent.

¹People v. Chaney (2005) 131 Cal.App.4th 253, 256-257 [setting forth elements of Penal Code § 71]

²The First Amendment to the United States Constitution states, in pertinent part: Congress shall make no law . . . abridging the freedom of speech, or of the press. . . .”

³People v. Dunkle (2005) 36 Cal.4th 861

⁴People v. Zendejas (1987) 196 Cal.App.3d 367, 377.

⁵People v. Zendejas (1987) 196 Cal.App.3d 367, 375

⁶People v. Zendejas (1987) 196 Cal.App.3d 367, 372.

⁷In re Zendejas (1987) 196 Cal.App.3d 367.

⁸People v. Hamilton (2009) 45 Cal.4th 286.

⁹Penal Code § 71(a)(1).

¹⁰Penal Code § 71(a)(2).

¹⁰Penal Code §§ 12021(c)(1), 29800(a)(1).