Proposed Jury Instruction Threat with Citation-Post Counterman v. Colorado 2023

WPIC 2.24 was “corrected” by the Pattern Jury Instruction Committee Post Counterman v. Colorado.

However, they merely added the required reckless standard for the speaker to the existing WPIC, which already had the objective reasonable person standard for the speaker.

The Colorado Statute had the objective reasonable person standard properly on the receiving party interpreting the message to be a true threat. The U.S. Supreme Court required the reckless standard to be added to the speaker.

The objective reasonable standard was insufficient for a speaker’s mens rea under the First Amendment. Our WPIC had no mens rea but there was case law indicating the mens rea was negligence. However, the WPIC did not have the objective reasonable person applied to the receiver of the messages, it applied and still applies the objective reasonable person standard ALSO TO THE SPEAKER.