Clarify the criminal threatening laws

Last modified: Thursday, December 02, 2010
We can't fathom why Ward Bird felt the need the point a gun at a woman he knew was likely to have accidentally trespassed on his posted Moultonboro property - if he indeed did so. A jury believed he had, however, and Bird, a father of four, farm manager and Boy Scout leader, is now serving a mandatory three-year sentence for felony criminal threatening.

Bird apparently thought that since he was on his own property, he had the right to level a gun on a trespasser while ordering the person to leave. Most gun owners would think so too, but they would be wrong, potentially years worth of wrong.

The state's criminal threatening laws, and related laws controlling when deadly and non-deadly force may be used, are confusing and prone to misinterpretation. The key element of the criminal threatening law, for example, appears to be not the state of mind of the person making the threat but the emotional state of the target of the threat. If the person is scared enough, then the person making the threat is guilty.

Say it's the week after the horrific Mont Vernon home invasion that left a mother dead and her 10-year-old daughter severely wounded. Several teens, hoping to attend a late-night party, go to the wrong house and knock on the door. Inside are a single mother and her children. The mother answers the door, but she's holding a leveled pistol. The teens panic, run and call the police.

In this scenario, the woman would have done the same thing Bird allegedly did, minus his apparent profanity. Would a jury find her guilty of felony criminal threatening? Maybe. Maybe not.

What if the gun wasn't loaded? She knew that she could not "inflict death or serious bodily injury" on anyone, but the teens didn't. Under the law, it doesn't matter. She had used a firearm to "purposely place(s) or attempt(s) to place another in fear. . . "

On January 1 of this year, an addition to the criminal threatening law went into effect. It allows a person to display a firearm or other weapon in response to "a threat which would be considered by a reasonable person as likely to cause serious bodily injury or death to the person by another . . . to warn away the person." So, in the former scenario, the woman would not have committed a crime had one of the teens, say, been holding a beer bottle in a way that suggested its potential use as a club.

Laws can't be written to cover every possible situation, but to the greatest extent possible they should be unambiguous and widely understood. The criminal threatening laws are neither.

Bird's harsh sentence has prompted widespread protest. The sentencing judge said he levied the punishment only because he had no choice under the mandatory sentencing law. One state representative has already filed a bill to explicitly permit property owners to warn off trespassers by brandishing a firearm. Attempts will, and should, be made to reconsider mandatory sentences like the one given Bird, a sentence which does not appear to fit the crime.

None of these efforts should be done casually, for fear of making the laws less clear, rather than more. But the laws need clarification, and the public needs to know what the laws are.

Surveys suggest that about one-third of the state's households have a gun in them. The people in those homes need to know when they may legally point that gun, loaded or unloaded, without winding up behind bars.