Threatening or Intimidating in Arizona: ARS 13-1202

What is Threatening or Intimidating?

In Arizona, the crime of threatening or intimidating occurs when somebody makes a threat of violence against another person or threatens to damage property. Threatening or intimidating is listed as an offense under Chapter 12 of the Arizona Criminal Code, which covers assault and related crimes, however, no physical injury is actually necessary to commit the crime of threatening or intimidating. Depending on the circumstances, this crime the prosecutor may charge this crime as either a misdemeanor or a felony.

Many threatening and intimidating cases can involve domestic violence claims. These cases can often be motivated by a someone in the defendant’s family that has an ulterior motive to making the claim. We often see these statements being made, for example, in the case of a messy divorce during a family law matter and present a “he said, she said” case.

More serious threatening and intimidating cases can also arise in prosecutions for alleged gang activity. In these sorts of cases, the prosecution usually alleges that a person made some sort of threat of gang retaliation.

A.R.S. § 13-1202 Defined

ARS 13-1202 is the law that describes the charge of threatening or intimidating. This statute states that a person commits this crime “if the person threatens or intimidates by word or conduct:

ARS 13-1202(A)(1): To cause physical injury to another person or serious damage to property.
ARS 13-1202(A)(2): To cause, or in reckless disregard to causing, serious public inconvenience including evacuation of a building, place of assembly, or transportation facility.
ARS 13-1202(A)(3) To cause physical injury or property damage in order to promote the interests of a criminal street gang or other crime organization.

Example: In State v. Harm, 340 P.3d, 1110 (Ariz. Ct. App. 2015), Brian Harm was arrested by a black police officer for criminal trespass. During the arrest, Harm implied that he was a member of the Aryan Brotherhood, a white supremacist gang. He shouted racial slurs and threatened violent retaliation against the officer by the gang. Harm said things such as, “I will have all my brotherhood brothers come to this neighborhood, and you’ll pay the ultimate price.” A jury found Harm guilty of threatening or intimidating against a police officer in order to promote a criminal street gang.

Note that the state does not need to prove that the defendant was actually a member of criminal street gang to secure a conviction under this law.

Example: In the case of In re Ryan, 202 Ariz. 19 (Ariz. Ct. App. 2002), a juvenile was arrested for threatening and intimidating under ARS 13-1202(A)(1). The juvenile, Ryan A., drove by a former friend’s house at 9:00 pm at night, and shouted out threats of death. Ryan’s friend did not hear the threats, but his mother told him what had happened. The friend was upset, but he testified at trial that he was not scared. Ryan was found guilty at trial.

This case shows that evidence that the victim was not actually afraid by the threat or take it seriously does not provide a defense to the charge of threatening or intimidating.

What are the Penalties for Threatening or Intimidating?

The punishment for threatening or intimidating depends on which of the above categories it falls under. If it falls under subcategory (A)(1) or (A)(2), then it is usually a class 1 misdemeanor (the most severe type of misdemeanor). These types of crimes can also be charged as a class 6 felony if the threats are made in retaliation for somebody reporting a crime or if the defendant is a member of a criminal street gang.

The penalties for misdemeanor threatening or intimidating under ARS 13-1202(A)(1) are:

Up to 6 months’ jail.
Up to $2500 in fines.
Probation, community service, and victim restitution payments.

The penalties for a first-time felony threatening or intimidating charge under ARS 13-1202(A)(2) are:

Up to 2 years in prison.
Fines of up to $150,000.

The penalties for threatening and intimidating are especially harsh if you have been charged under ARS 13-1202(A)(3). This makes the crime a class 3 felony, which is a very serious offense. First time penalties for this type of threatening or intimidating charge can be:

Up to 8.75 years in prison.
Fines of up to $150,000.

Defenses to Threatening or Intimidating Charges

Just because you have been charged with threatening and intimidating does not mean that you are guilty. Have a skilled criminal defense attorney review your case. There are many potential defenses to this charge, such as:

Not a “true threat”: Because threatening and intimidating is a crime that makes speech itself illegal, the government has to be careful about how it charges the crime because of potential constitutional issues. Therefore, courts have held that threatening and intimidating is only a crime if the intimidation involved what is known as a “true threat.” A true threat is one where the person hearing the threat would take it as a “serious expression of an intention to inflict bodily harm.” This doctrine asks how a reasonable person would perceive the threat, and whether not it should be taken seriously. We may be able to argue that the circumstances surrounding the threat are such that it shouldn’t have been taken seriously, even if the statements were actually made. If the statements were not a “true threat,” then no crime occurred and the case should be dismissed.
False accusations: Sometimes victims make false accusations against a defendant. This can be done for any variety of motives. It is sometimes seen in messy divorce cases where one spouse thinks they can gain an advantage over the other spouse if that person has criminal charges pending. In these circumstances the case comes down to a “he-said/she-said” situation, where claims can be fabricated. A criminal background check on the victim or other false or inconsistent statements can be used to impeach a lying victim.
Self-Defense: Under Arizona’s self-defense law, ARS 13-404, a person is justified in threatening physical force against another when a reasonable person would believe that it is immediately necessary to protect himself against the other’s use or attempted use of unlawful physical force. However, the self-defense statute does not protect threats of force used in response to verbal provocation alone.
The alleged threat was not criminal: A comment that is only rude or offensive does not fall under the threatening and intimidation statute. Even if a comment should not have been made in polite society, it must actually threaten physical injury or property damage to be a crime under this law.
The First Amendment: Your right to free speech is protected by the liberties granted by the 1st and 14th Amendments to the United States Constitution. The First Amendment grants the liberties and the 14th Amendments applies it to the states, such as Arizona. The courts have held that a certain class of words, known as “fighting words,” can be criminalized. These are words that are likely to provoke a violent reaction in an ordinary person. However, if speech does not convey a genuine threat or contain fighting words, then it will usually be protected under the Constitution.

How Salwin Law Can Help

If you are facing charges for threatening and intimidating, you should seek the counsel of an experienced Phoenix defense attorney.

At Salwin Law Group, we fight aggressively to defend your rights. Stewart Salwin is a former felony prosecutor and graduated cum laude from Harvard Law School. He knows to create an effective defense strategy that will maximize the chances that you will receive a favorable outcome, including getting your charges lowered or dismissed.

Call Salwin Law Group today at (480) 702-1789 for a free consultation, or us our online form.