'Terroristic Threats' and COVID-19: A Guide for the Perplexed

Abstract

The first few months of the COVID-19 outbreak in the United States saw the rise of a troubling sort of behavior: people would cough or spit on people or otherwise threaten to spread the COVID-19 virus, resulting in panic and sometimes thousands of dollars’ worth of damages to businesses. Those who have been caught doing this — or have filmed themselves doing it — have been charged under so-called “terroristic threat” statutes. But what is a terroristic threat, and is it an appropriate charge in these cases? Surprisingly little has been written about these statutes given their long history and regular use by states. Our article is one of the first to look systematically at these statutes, and we do so in light of the rash of these charges during the recent pandemic.

Our argument begins with the premise that these statutes typically contemplate a “core case” of terroristic threatening, e.g., someone calls in a bomb threat which forces the evacuation of a building. But these statutes have been variously revised and repurposed over the years, most notably to mass shootings, and more problematically to those who threaten to give others HIV. The recent COVID-19 charges seem to involve facts that are outside the “core case,” so that even if terroristic threatening is a permissible charge in these cases, it is often not the most appropriate one. We conclude by suggesting that in many of the COVID-19 cases other charges should be made (criminal mischief, disorderly conduct, false reporting, etc.) instead of terroristic threatening, and that a lot of the expressive and deterrence benefits of more serious charges can be accomplished just as well by social disapproval.

Keywords: threats, criminal law, COVID-19