Amicus Curiae Brief — United States, Petitioner v. Justin Eugene Taylor

No. 20-1459

In the Supreme Court of the United States

__________

UNITED STATES OF AMERICA,

Petitioner,

v.

JUSTIN EUGENE TAYLOR,

Respondent.

__________

On Writ of Certiorari to the

United States Court of Appeals

for the Fourth Circuit

__________

Brief of Neal Goldfarb

as Amicus Curiae

in Support of Respondent

__________

October 29, 2021

Neal Goldfarb

1301 Fairmont St., N.W.

Washington, D.C. 20009

(202) 262-7886

goldfarbneal@gmail.com

Counsel for Amicus Curiae

Contents

Table of Authorities .......................................................ii

Interest of Amicus.......................................................... 1

Introduction and Summary of Argument ................... 2

Argument ........................................................................ 4

A. In the context of criminal law, threat and

threaten denote communicative acts. ...................... 4

B. The government’s argument relies on senses

of threat and threaten that are inappropriate

in the present context. ........................................... 11

1. The government’s premise is that a defendant can be found to have threatened to use

force despite never having communicated

an intention to use force................................... 11

2. The senses of threat and threaten on which

the government relies differ materially from

those in which the words are used in statutes criminalizing threats. .............................. 15

3. The government’s interpretation is at best

out of step with the existing caselaw, and is

in conflict with decisions by several of the

Circuits. ............................................................. 24

C. The government’s interpretation is radically

inappropriate, because it would result in the

meaning of the words in statutes changing

from one case to the next. ...................................... 27

Conclusion .................................................................... 31

Table of Authorities

Cases

Austin v. United States,

280 F. Supp. 2d 367 (S.D.N.Y. 2017) ....................... 8

Clark v. Martinez,

543 U.S. 371 (2005).................................2, 28, 29, 30

Deal v. United States,

508 U.S. 129 (1993)................................................. 15

Doggart v. United States,

906 F.3d 506 (6th Cir. 2018) ..................................... 6

Elonis v. United States,

575 U.S. 723 (2015).........................................4, 7, 12

Graham v. Connor,

490 US 386 (1989) .................................................. 22

Portee v. United States,

941 F.3d 263 (7th Cir. 2018) .............................25, 26

Porter v. Ascension Paris School Board,

393 F.3d 608 (5th Cir. 2004) ............................... 5, 15

Tennessee v. Garner,

471 U.S. 1 (1985)..................................................... 22

Terry v. Ohio,

392 U.S. 1 (1968)..................................................... 22

United States v. Brown,

947 F.3d 503 (8th Cir. 2020) ................................... 11

United States v. Cortez-Arias,

403 F.3d 1111 (9th Cir. 2005) ................................. 27

United States v. Damaso-Mendoza,

653 F.3d 1245 (10th Cir. 2001) ................................. 8

United States v. England,

507 F.3d 581 (7th Cir. 2007) ................................. 5, 6

United States v. Glover,

846 F.3d 339 (6th Cir. 1988) ................................... 23

iii

United States v. Harden,

866 F.3d 768 (7th Cir. 2017) ................................... 27

United States v. Heinemann,

767 F.3d 960 (10th Cir. 2014) ................................... 5

United States v. Jongewaard,

567 F.3d 336 (8th Cir. 2009) ..................................... 6

United States v. King,

979 F.2d 801 (10th Cir. 1992) .......................8, 24, 26

United States v. Left Hand Bull, 901 F.3d 647

(8th Cir. 1990) ......................................................... 23

United States v. Martin,

163 1212 (10th Cir. 1998) ......................................... 5

United States v. Olivares,

833 F.3d 450 (5th Cir. 2016) ................................... 11

United States v. Orozco-Santillan,

903 F.2d 1262 (9th Cir. 1990),

overruled in nonpertinent part,

Planned Parenthood of Columbia/Willamette,

Inc. v. Am. Coal. of Life Activists,

290 F.3d 1058 (9th Cir. 2002), as stated in

United States v. Hanna, 293 F.3d 1080

(9th Cir. 2002) ........................................................... 6

United States v. Ovalle-Chun,

815 F.3d 222 (5th Cir. 2016) ..................................... 8

United States v. Parnell,

818 F.3d 974 (9th Cir. 2016) ............................... 8, 26

United States v. Parr,

545 F.3d 491 (7th Cir. 2008) ................................... 23

United States v. Reynolds,

381 F.3d 404 (5th Cir. 2004) ..................................... 6

United States v. Salerno,

481 US 733 (1987) .................................................. 22

United States v. Santos,

553 U.S. 507 (2008).......................................2, 29, 30

iv

United States v. Schaffer,

818 F.3d 796 (8th Cir. 2016) ..................................... 8

United States v. Stevenson,

126 F.3d 662 (5th Cir. 1997) ..................................... 5

United States v. Stewart,

420 F.3d 1007 (9th Cir. 2005) ................................... 5

United States v. Veliz,

800 F.3d 63 (2d Cir. 2015)......................................... 5

United States v. White,

258 F.3d 374 (5th Cir. 2001) .........................8, 25, 26

United States v. White,

670 F.3d 498 (4th Cir. 2012) ..................................... 5

Virginia v. Black,

538 U.S. 343 (2003)............................................. 8, 23

Watts v. United States,

394 U.S. 705 (1960) .............................................. 4, 8

Zadvydas v. Davis,

533 U.S. 678 (2001)................................................. 28

Statutes and Guideline

6 U.S.C. § 1170(a)(1) .................................................... 20

8 U.S.C. § 1231(a)(6) .................................................... 28

8 U.S.C. § 1735(a) ......................................................... 21

Uniform Code of Military Justice,

10 U.S.C. § 915(a), Art. 115 .................................... 45

Armed Career Criminal Act of 1984,

18 U.S.C. § 924(e)............................................ passim

Hobbs Act, 18 U.S.C. § 1951 ................... 3, 9, 12, 13, 19

18 U.S.C. § 1951(b)(1) ............................................... 9

18 U.S.C. § 16 .................................................................. 8

18 U.S.C. § 115(a)(1) ...................................................... 5

18 U.S.C. § 871................................................................ 4

18 U.S.C. § 875................................................................ 4

v

18 U.S.C. § 875(c) .................................................. 4, 6

18 U.S.C. § 921(a)(33)(A) ............................................... 6

18 U.S.C. § 1512(a)(2)(A) ......................................... 8, 25

18 U.S.C. § 2332a) .......................................................... 6

U.S.S.G. §2L1.2 cmt. n.1(B)(iii) (Nov. 1, 2014)............. 8

Ala. Code 1975

§ 15-16-43 ................................................................ 21

§ 15-16-41 ................................................................ 21

§ 15-16-42 ................................................................ 21

Del. Code § 5005(a)(3).................................................. 21

Ind. Code § 35-47-4-3

(as in effect in October 1999)................................. 25

N.M. Rules Ann., Rule 5-602.2.B(2)............................ 21

Tex. Penal Code § 22.05

(as in effect August 1, 1994) .................................. 25

Dictionaries

Black’s Law Dictionary

(6th ed. 1990) ............................................................ 6

(8th ed. 2004) ........................................................ 6, 7

(10th ed. 2014) .......................................................... 6

(11th ed. 2019) ..................................... 13, 14, 16 ,17

11 Oxford English Dictionary

(1st ed. 1933)............................................................. 7

Oxford English Dictionary (3rd ed. 2001,

rev. 2021), available at www.oed.com .................... 18

Oxford Dictionary of English

(no edition or date cited) ........................................ 18

Merriam-Webster’s Third New International

Dictionary (1993 [1961]) ........................................ 16

New Oxford American Dictionary (2d ed. 2005) ........ 17

vi

New Oxford American Dictionary (online edition),

https://www.lexico.com/en/definition/threat?locale

=en ....................................................................17, 18

Random House Dictionary of the English Language

(Unabridged ed. 1967) ...................................... 16-17

Webster’s New International Dictionary

(2d ed. 1942 [1934]) ......................................... 6-7, 7

Webster's Third New International Dictionary

(1981 [1961]) ............................................................. 6

Webster's Third New International Dictionary

(2002 [1961]) ............................................................. 6

Other Authorities

Brief for the United States, Elonis v. United States,

575 U.S. 723 (2015) (No. 13-983)............................. 7

Alan Cruse, Meaning in Language:

An Introduction to Semantics and

Pragmatics (2d ed. 2004) ....................................... 15

Neal Goldfarb, A Lawyer’s Introduction to

Meaning in the Framework of Corpus

Linguistics, 2017 BYU L. Rev. 1359 (2018)

.................................................................. 15-16, 20

Hallie Liberto, Threats, Warnings, and Assertions,

in The Oxford Handbook of Assertion 201

(Sanford C. Goldberg ed. 2020) ............................... 9

Model Penal Code (Am. L. Inst. 1980)

§ 222.1(1)(B) ........................................................... 10

§ 222.1(1)(B), cmt. 3(b) .................................... 10-11

Interest of Amicus1

Amicus Neal Goldfarb is an attorney with an interest and expertise in linguistics and lexicography,

and in applying the insights and methodologies of

those fields to legal interpretation. That knowledge

gives amicus a perspective on the linguistic and

lexicographic issues raised in this case, and enables

him to discuss those issues in more depth than is

typical of the briefs submitted to the is Court.

Amicus has previously filed several amicus briefs in

this Court drawing on linguistics. Links to most of

those briefs are available at the link at the bottom of

the page.2 His most recent brief, in New York Rifle &

Pistol Ass’n v. Bruen, No. 20-843, is available on the

Court’s docket.3

1. All parties have consented in writing to the filing of this brief.

No part of this brief was authored by any party’s counsel.

Nobody other than amicus contributed any money intended

to fund the brief’s preparation or submission.

This brief follows two typographic conventions generally

followed in linguistics:

(a) Italics signal that a word or phrase is being used to

refer to itself as an expression. E.g. “The word language has

eight letters.”

(b) ‘Single quotation marks’ are used to enclose statements of the meaning of a word or phrase. E.g., “Closed

means ‘not open.’”

2. https://lawnlinguistics.com/briefs/.

3. https://tinyurl.com/GoldfarbAmicusBruen.

2

Introduction and

Summary of Argument

This Court has held that the meaning of statutory

text should remain constant across the range of cases

in which the text is applied, and therefore that statutes

should not be interpreted in such a way that they mean

one thing in some cases and something different in

other cases. Clark v. Martinez, 543 U.S. 371 (2005); see

also United States v. Santos, 553 U.S. 507, 522-24 (plurality opinion) (2008); id. at 532 (Alito, J., dissenting,

joined by three Justices). This case is unusual in that

the government’s proposed interpretation of threat and

threaten would, if adopted by the Court, violate that

principle.

In the context of criminal law, threat and threaten

have a well established meaning. A threat is understood to be a particular kind of communicative act, by

which amicus means a threat is understood to be an

action by which the actor seeks to communicate something to somebody, and threaten is understood to denote the making of a threat, and therefore as a type of

communicative act.

These points may seem painfully obvious, but the

position advocated by government makes it necessary

to start with the basics. The government proposes that

threat and threaten be interpreted as denoting conduct

as to which the actor has no communicative intent. It

is therefore necessary to be explicit about what would

ordinarily go without saying, which in this case means

establishing that in the context of criminal law, threats

are understood to be communicative acts.

3

In order to make that showing, amicus surveys

some of the different ways in which criminal law treats

threats as communicative acts. In some threat statutes, the communicative nature of the prohibited

conduct is clear on the face of the text. And while that

is not true of all statutes that prohibit threats, the

caselaw fills the gap by invoking dictionary entries defining threat and threaten in terms that are clearly

communicative.

The brief then turns to the details of the government’s argument, in order to make it clear that the

government does in fact argue in favor of interpreting

threat and threaten in a way that has nothing to do

with communication. Specifically, amicus discusses the

language the government uses in its effort to show that

it is possible to commit Hobbs Act robbery-by-threat

without making a threat in any communicative sense.

He also shows that the dictionary definition the government relies on pertains to a sense of threat that has

no communicative component.

Amicus then discusses the Hobbs Act, which does

not does not prohibit the mere act of making a threat,

but focuses instead on the use of threats as a means of

coercion. That is important because an uncommunicated threat can’t possibly have any coercive effect.

Having separately discussed the government’s

noncommunicative interpretation and the ways in

criminal statutes and caselaw treat threats as communicative acts, amicus compares the two senses in

order to show that they differ from one another very

substantially. And that comparison sets the stage for a

return to the point made at the beginning of this part

4

of the brief: accepting the government’s interpretation

would result in threat and threaten having different

meanings in different cases.

As amicus explains, that would be something that

this Court has held to be inappropriate. Even if there

might be some basis on which the Court might make

an exception to the general rule, no such basis exists

here. And on top of that, accepting the government’s

interpretation would open the door to a host of bad consequences.

For all of the foregoing reasons, the government’s

interpretation should be rejected.

Argument

A. In the context of criminal law, threat and

threaten denote communicative acts.

1. Although it might seem like belaboring the obvious to say this, the acts that the criminal law classifies as threats, are communicative acts—acts whose

purpose is to communicate something to another person.

In some statutes criminalizing threats, the communicative nature of the prohibited conduct is made

clear in the text. For example, 18 U.S.C. § 871 (the statute at issue in Watts v. United States, 394 U.S. 705

(1960)) prohibits the mailing of “any letter, paper, writing, print, missive, or document containing any threat”

against the President or other specified officials. Similarly, 18 U.S.C. § 875 (the statute at issue in Elonis v.

United States, 575 U.S. 723 (2015)), prohibits transmitting in interstate commerce “any threat…to injure

the person of another.” And the Uniform Code of Mili-

5

tary Justice prohibits “wrongfully communicat[ing] a

threat to the injure the person, property, or reputation

of another[.]”4

Other statutes define the prohibited conduct by

using the verb threaten, without specifying the kind of

conduct that the verb denotes. For example, 18 U.S.C.

§ 115(a)(1) makes it illegal to “threaten[] to assault,

kidnap, or murder, a United States official, a United

States judge, a Federal law enforcement officer, or an

official whose killing would be a crime under [section

1114 of this title]” if the threat is made with a specified

mens rea.

The threats prosecuted under statutes such as

those that have been discussed typically, if not

invariably, take the form of spoken or written statements.5 These are prototypical communicative acts—

or at least they are if the statement is made or

otherwise transmitted to someone to someone other

than the speaker or writer.6

4. 10 U.S.C. § 915(a), Art. 115.

5. See, e.g., Elonis v. United States, supra; United States v. Veliz,

800 F.3d 63 (2d Cir. 2015); United States v. Heinemann, 767

F.3d 960 (10th Cir. 2014); United States v. White, 670 F.3d 498

(4th Cir. 2012); United States v. England, 507 F.3d 581 (7th

Cir. 2007); United States v. Stewart, 420 F.3d 1007 (9th Cir.

2005); United States v. Martin, 163 1212 (10th Cir. 1998);

United States v. Stevenson, 126 F.3d 662 (5th Cir. 1997).

6. With regard to the qualification, see the discussion of Porter

v. Ascension Paris School Board, 393 F.3d 608 (5th Cir. 2004)

at page 9, below.

6

Courts have treated such actions accordingly; for

example, by relying on one or more of the following

dictionary entries defining threat or threaten as denoting communicative acts:

x “A communicated intent to inflict harm or loss on another or on another’s property[.]” Black’s Law Dictionary (6th ed. 1990, 8th ed. 2004 & 10th ed.

2014).7

x “[A]n expression of an intention to inflict evil, injury,

or damage on another usu. as retribution or punishment for something done or left undone[.]”

Webster's Third New International Dictionary (1981

[1961] & 2002 [1961]).8

x “Law, specif., an expression of an intention to inflict

loss or harm on another by illegal means.” Web-

7. Quoted in Doggart v. United States, 906 F.3d 506, 510.(6th

Cir. 2018) (citing 10th ed.; interpreting 18 U.S.C. § 875(c));

United States v. Jongewaard, 567 F.3d 336, 340 (8th Cir.

2009) (citing 8th ed.); England, 507 F.3d at 589 (citing 6th ed.;

interpreting 18 U.S.C. § 1512(a)(2)(A)); and United States v.

Reynolds, 381 F.3d 404, 406 (5th Cir. 2004) (citing 8th ed.;

interpreting 18 U.S.C. § 2332a).

8. Quoted in Jongewaard, 567 F.3d at 340; England, 507 F.3d at

589; and United States v. Orozco-Santillan, 903 F.2d 1262,

1265 (9th Cir. 1990), overruled in nonpertinent part, Planned

Parenthood of Columbia/Willamette, Inc. v. Am. Coal. of Life

Activists, 290 F.3d 1058, 1066 (9th Cir. 2002), as stated in

United States v. Hanna, 293 F.3d 1080, 1088 n.5 (9th Cir.

2002).

7

ster’s New International Dictionary (2d ed. 1942

[1934]).9

x “[T]o declare (usually conditionally) one’s intention

of inflicting injury upon” a person. 11 Oxford English Dictionary 353 (1st ed. 1933).10

Similarly, in Elonis, Justice Alito interpreted threat

to denote a communicative act, stating that it can

“fairly be defined as a statement that is reasonably interpreted as ‘an expression of an intention to inflict

evil, injury, or damage on another[]’” (citing Webster's

Third).11 The government’s brief in Elonis interpreted

threat that way, too:

A “threat” is defined as “an expression of an intention to inflict loss or harm on another by illegal means,” Webster’s New International Dictionary 2633 (2d ed. 1958), or “[a] communicated intent to inflict harm or loss on another,”

Pet. Br. 23 (quoting Black’s Law Dictionary

1519 (8th ed. 2004)).12

9. Quoted in Doggart, 906 F.3d at 510 (mistakenly substituting

“unconditionally” for “conditionally”).

10. Id.

11. 575 U.S. at 743–44 (2015) (Alito, J., concurring in part and

dissenting in part).

12. Brief for the United States at 24, Elonis v. United States, supra (No. 13-983).

8

Of particular relevance here, courts have reached

the same conclusion in interpreting ACCA,13 and also

under sentencing-related provisions that have consequences in cases where either the offense of conviction or a defendant’s prior conviction “has as an element the…threatened use of [for example,] physical

force against the person or property of another[.]”14

Moreover, the conception of threats as being communicative acts is inherent in the “true threat” doctrine under the First Amendment, which exists precisely because threats are deemed to be communicative, see Virginia v. Black, 538 U.S. 343, 359-60 (2003);

Watts, 394 U.S. at 707-08.

2. It is true that under some statutes, the making

of a threat is illegal even if the threat is not received by

(or even sent to) the person targeted by the threat. See

Gov’t Br. 24-25 and cases cited. But as Respondent

points out, in each case cited by the government the

threat had been communicated to somebody, even if

not the intended target. Resp. Br. 26-27. And at least

one case has held that it is not a crime to write

13. United States v. Schaffer, 818 F.3d 796, 798 (8th Cir. 2016);

United States v. Parnell, 818 F.3d 974, 980-81 (9th Cir. 2016);

United States v. King, 979 F.2d 801, 803 (10th Cir. 1992). See

also Austin v. United States, 280 F. Supp. 2d.367, 575-77

(S.D.N.Y. 2017).

14. United States v. Ovalle-Chun, 815 F.3d 222, 224-27 (5th Cir.

2016) (U.S.S.G. § 2L1.2 cmt. n.1(B)(iii) (Nov. 1, 2014)); United

States v. Damaso-Mendoza, 653 F.3d 1245, 1249 n.1 (10th Cir.

2001) (18 U.S.C. § 16); United States v. White, 258 F.3d 374

(5th Cir. 2001) (18 U.S.C. § 921(a)(33)(A)).

9

threatening language on a piece of paper if the writer

does not communicate the threat to someone else by

intentionally letting them see the document.15

But the general rule that a threat need not be communicated to the target in order to be illegal doesn’t

apply to robbery-by-threat under the Hobbs Act, which

does not criminalize the making of threats simpliciter.

Rather, it criminalizes threats of force or violence when

they are made for the purpose of “unlawful[ly] taking

or obtaining…personal property from the person or in

the presence of another, against his will[,]” 18 U.S.C. §

1951(b)(1).

Threats meeting that description are coercive in

nature: the threat cannot have the desired effect unless

it is to be communicated to the person in possession or

control of the money or property that the robber is

after, whether that person is a pedestrian being held up

for their wallet or a store clerk or bank teller having

access to the register or cash drawer. If no threat is

communicated to the intended victim (and assuming

no force is actually used), the victim will feel free to

disregard the would-be robber’s demand.16

15. Porter v. Ascension Paris School Board, 393 F.3d 608, 616-17,

617-18 (5th Cir. 2004)

16. See, e.g., Hallie Liberto, Threats, Warnings, and Assertions, in

The Oxford Handbook of Assertion 201, 201-02 (Sanford C.

Goldberg ed. 2020). The author discusses the fact that some

residents of Monterrey, Mexico never answer their phones, for

fear that if they do, the caller will turn out to be a drug-cartel

member “offering,” in exchange for money, to “protect” them

from having their house burned down. “The drug cartel has

10

As previously noted, the threat can be either verbal

or nonverbal. If it is verbal, it can be explicit (“Give me

the money or I will shoot you”) or implied (“I have a

gun. Give me the money”), but either way, the communicative nature of the act will be indisputable.

In the case of nonverbal conduct, however, there

may be room for doubt as to whether the conduct was

intended to communicate anything. But the conclusion

that nonverbal acts can amount to threats if they are

intended to be communicative is well established. The

Commentary on the Model Penal Code’s robbery

provision makes that clear. The Code’s analogue of the

“threatened use of force” is “[i] threatens another with

or [ii] purposely puts him in fear of immediate serious

bodily injury,” with phrase [i] applying to what amicus

refers to here as verbal threats and phrase [ii] referring

to what he calls nonverbal threats.17 The Commentary

explains that the latter phrase was intended to cover

“menacing or other implied threat sought to be

communicated to the victim by the actor's conduct[,]”

and that it “would thus apply to cases where the actor

brandishes a weapon or otherwise displays the ability

no incentive to burn down their house until the threat is

uttered and received (or expected to be received—as in a case

where the drug cartel member leaves a message on an answering machine).” Id.

In the event of a robbery, of course, not answering the

phone isn’t an option.

17. Model Penal Code (“MPC”) § 222.1(1)(B) & cmt. 3(b) (Am. L.

Inst. 1980) (bracketed numbering added).

11

and the intention to use force if his wishes are not honored.”18

B. The government’s argument relies on senses

of threat and threaten that are inappropriate in the present context.

1. The government’s premise is that a defendant can be found to have threatened to

use force despite never having communicated an intention to use force.

Although the government does not frame its argument in terms having to do with the presence or absence of a communicative act conveying a threat, its

argument depends on the premise that a defendant can

be found to have threatened to use force without ever

having communicated any intention to use force.

In arguing that a “threatened use of force” would

be inherent in any conduct amounting to attempted

robbery-by-threat, the government goes on at length to

characterize what that conduct would entail, but at no

point does it discuss the would-be perpetrator’s conduct in terms having anything to do with communication. Instead, it resorts to a series of generalities and

circumlocutions:

18. MPC § 222.1, cmt. 3(b). Cf. United States v. Brown, 947 F.3d

503 (8th Cir. 2020) (“The only purpose in brandishing a

weapon is to induce fear by the threat of potentially fatal violence.”); United States v. Olivares, 833 F.3d 450 (5th Cir.

2016) (witnesses identified defendant as “the person who

brandished a weapon in order to threaten them”) (emphasis

added).

12

x “Conduct substantial enough to satisfy [the] requirements [of attempted Hobbs Act robbery] at least

‘threaten[s]’ the use of force, as it ‘conveys the

notion of an intent to inflict harm’ as it ‘would be

understood by a reasonable person.’19

x “[In order to support a conviction of attempted

Hobbs Act robbery, a defendant’s conduct in furtherance of the planned robbery] must be significant enough that the jury…finds that the step establishes a course of action that is, at least, objectively threatening.”20

x “[C]onviction for attempted Hobbs Act robbery requires the jury to find that the defendant engaged

in a course of action that was sufficiently certain, if

unchecked, to culminate in taking property

through physical harm or the threat of it….Anyone

observing a course of action that has progressed to

such a point would naturally describe it as involving

at least ‘threatened use’ of force.”21

x “The objective manifestation of a defendant’s determination to rob someone is itself a threat of force in

the ordinary sense—i.e., an action that ‘conveys the

notion of an intent to inflict harm[.]’”22

19. Gov’t Br. 11 (emphasis added) (quoting Elonis, 575 U.S. at

731, 737.

20. Gov’t Br. 22 (emphasis added).

21. Gov’t Br. 22 (emphasis added).

22. Gov’t Br. 23 (citing Elonis, supra, 575 U.S. at 731).

13

x “A reasonable person would surely interpret the actions of would-be robbers who, say, acquire guns,

ammunition, and zip ties and are arrested en route

to their target, as a threat to the physical well-being

of innocent people.”23

x “[A] defendant who attempts a Hobbs Act robbery in

which the plan is to take property by threat of force

specifically designs his conduct to be objectively

perceived as threatening. As a result, any defendant

who is far enough along in that conduct to have

taken a substantial step toward its completion has

engaged in at least ‘threatened use’ of force.”24

In each of these passages, the government posits a

situation in which an omniscient observer could infer

that if the defendant went through with their plans,

there would be a risk of violence. But the question

whether such an inference would be justified is

irrelevant, because the inference would be based on

what the government refers to the defendant’s “conduct,” “actions,” and “course of action,” and on the

“objective manifestation of [his] determination to rob

someone” (whatever that might be), and not on any

statement, note, or other action by the defendant that

was intended as a communication.

Further indication that the government relies on

noncommunicative senses of threat and threaten is

provided by its citation to Black’s Law Dictionary,

23. Gov’t Br. 23 (citation omitted).

24. Gov’t Br. 24 (emphasis in the original).

14

which it offers for the proposition that “a ‘threat’ may

be embodied in ‘a declaration, express or implied, of an

intent to inflict loss or pain on another’ or instead take

the form of ‘[a]n indication of an approaching menace’[.]”25 Whereas the first of those definitions relates

to the communicative sense of threat, the second relates to a noncommunicative sense.

That is clear from the phrase that Black’s provides

as an example illustrating the use of threat in the sense

to which the definition relates. That phrase, which the

government does not quote, is “the threat of bankruptcy[.]”26 When this phrase considered in the context of

the definition it exemplifies (to repeat: “the threat of

bankruptcy”), it can only be interpreted as meaning

‘the risk that the company will file bankruptcy,’ not

‘the company’s statement that it would have to file for

bankruptcy (if some contingency did or did not occur).’

Indeed, the latter interpretation would do nothing to

advance the government’s argument.

Thus, the government’s reliance on the “approaching menace” definition tends to confirm that its argument interprets threat in a noncommunicative sense.

25. Govt. Brief 16 (quoting Black’s Law Dictionary 1783 (11th ed.

2019)).

26. Black’s Law Dictionary 1783 (11th ed. 2019).

15

2. The senses of threat and threaten on

which the government relies differ materially from those in which the words are

used in statutes criminalizing threats.

The government’s proposed interpretation of threat

and threaten exploits the fact that those words, like

many others, can be used in ways that differ from one

another but are nevertheless related.27 The government relies on a sense of threat and threaten that is

expressed when those words are used in certain kinds

of contexts, but those contexts differ in important ways

from the contexts provided by criminal statutes that

prohibit threats. And here as in many cases, a difference in context results in a difference in meaning.

Those differences must therefore be taken into account

in deciding this case. Deal v. United States, 508 U.S.

129, 132 (1993) (noting the “fundamental principle of

statutory construction (and, indeed, of language itself)

that the meaning of a word cannot be determined in

isolation, but must be drawn from the context in which

it is used”).28

27. The technical term for that phenomenon is polysemy, and it is

to be distinguished from the phenomenon of homonymy, in

which two separate words are spelled and pronounced the

same, as in bank (‘financial institution’) and bank (‘land beside a river’). E.g., Alan Cruse, Meaning in Language: An

Introduction to Semantics and Pragmatics 107 (2d ed. 2004).

28. Cf. Neal Goldfarb, A Lawyer’s Introduction to Meaning in the

Framework of Corpus Linguistics, 2017 BYU L. Rev. 1359,

1378-83 (2018) (drawing on work in corpus linguistics and

16

As shown by the discussion above of the government’s reliance on Black’s Law Dictionary, the examples that are included in definitions provide information about the kinds of contexts in which each of the

various senses appear. In order to further inform the

Court as to the kinds of contexts in which the “approaching menace” sense of threat is found, amicus

sets out below the relevant definitions of threat and

threaten, with the accompanying examples, from dictionaries published both before and after ACCA’s

enactment in 1984:

x

Merriam-Webster’s Third New International Dictionary (1993 [1961]):

threat—“something that by its very nature or

relation to another threatens the welfare of the latter <the crumbling cliff was a constant threat to

the village below> <economic depressions constitute a major threat to party hegemony >”

threaten—“4a: to give signs of the approach of

(something evil or unpleasant) : indicate as impending : portend <the sky threatens storm>” b: to

hang over as a threat : menace <famine threatens

the city>

x Random House Dictionary of the English Language

1478 (Unabridged ed. 1967):

threat—an indication or warning of probable

trouble, or of being at risk for something terrible:

The threat of a storm was in the air.

corpus-based lexicography in discussing some of the ways in

which word meaning is context-dependent).

17

threaten— to be a menace or source of danger to:

Sickness threatened her peace of mind. to give an

ominous indication of: The clouds threaten rain.

x New Oxford American Dictionary 1757 (2d ed. 2005)

(grammatical information omitted):

threat—a person or thing likely to cause damage

or danger. ‘hurricane damage poses a major threat

to many coastal communities’ ■ The possibility of

trouble, danger, or ruin. ‘the company faces the

threat of bankruptcy[.]’

threaten—cause (someone or something) to be

vulnerable or at risk; endanger. ‘a broken finger

threatened his career’ ‘one of four hospitals threatened with closure’ ■ (of a situation or weather conditions) seem likely to produce an unpleasant or

unwelcome result. ‘the dispute threatened to spread

to other cities’ ‘the air was raw and threatened rain’

■ (of something undesirable) seem likely to occur.

‘unless war threatened, national politics remained

the focus of attention’

As is true of the example from Black’s (“the threat of

bankruptcy”), none of the threats in the examples

above constitutes a communicative act. Indeed, none of

them represents any kind of act on the part of a human

being.

However, one of the definitions of threat in the online version of the New Oxford American Dictionary

(“NOAD”) covers humans: “a person or thing likely to

cause damage or danger.”29 And although there is no

29. https://www.lexico.com/en/definition/threat?locale=en.

18

corresponding example sentence in the hard-copy

version of the dictionary, additional examples, based on

corpus data, are available online.30 Among them are the

following:

x “The men, who cannot be named for legal reasons,

have been described as a serious threat to national

security.”

x “Normally calm and measured people will go red at

the mention of his name and tell you that he is a

dangerous threat to liberty.”

x “Unless he was posing a genuine threat to our security, it would be illegal to attack.”

x “The home secretary says those who are to be held

under house arrest represent a serious threat to national security.”

30. Id. (under sense 2, click on “+More example sentences”).

The online version of NOAD includes a perplexing definition that does not appear in the printed edition and that

calls for some explanation:

Law A menace of bodily harm, such as may restrain a

person's freedom of action.

The body of law that is referred to is apparently the law of

England, in which menace is used as meaning ‘threat.’ See Oxford English Dictionary, menace n., sense 1.a. (3rd ed. 2001,

rev. 2021), available at www.oed.com. The inclusion of this

definition in NOAD is presumably due to the fact that NOAD

is based on the Oxford Dictionary of English, a single-volume

British dictionary that is separate from the multivolume

Oxford English Dictionary.

19

Like the examples that were previously quoted, none

of the immediately preceding examples uses threat in a

communicative sense. But because the threat is imputed to a person, these examples are the ones that

most closely exemplify the sense of threat and threaten

on which the government’s argument is based. It will

therefore be useful to take a closer look at these uses

and others like them, in order to more particularly

explain both how these uses are similar to how the

government uses threat and threaten, and how both

sets of uses differ from the use of those words in the

Hobbs Act, ACCA, and the other provisions discussed

above on pages ___.

First, not only does the threat referred to in each

example constitute a communicative act, it does not

constitute a discrete act at all. Rather, it can be characterized as a perceived risk or danger of harm that

might materialize at some point in the future, with the

perception of the risk or danger arising from one’s

knowledge or beliefs about the propensities and past

conduct of the person in question.

Corresponding to that difference in meaning is a

difference in the grammatical contexts in which threat

is used. Whereas a person who threatens someone (in

the communicative sense) or threatens to do something

(in that same sense) can be said to have “made a

threat,” it would be odd to use that phrase in talking

about threats of the kind referred to in the examples

above. And it is not necessarily true of someone who

makes a threat (in the communicative sense) that he

or she “is a threat,” “poses a threat,” “represents a

threat,” or is appropriately “described as a threat,”

20

because not everyone who makes a threat is able to

carry it out.

Moreover, these differences are not trivial or superficial. Rather, they are examples of the way that the

meaning of a word in a particular context is often affected by the context.31 Thus, when threat appears in

the phrase “pose a threat,” its meaning differs from

what it means when it is part of the phrase “make a

threat.”

Amicus has looked for examples of pose (or present)

a threat being used in federal or state statutes with

respect to individuals (as opposed to actions, circumstances, and so forth). He has found only a few, but all

of them had two things in common: (1) the phrase pose

a threat is more or less synonymous with pose a risk

and pose a danger, and (2) the judgment that someone

poses or presents a threat is predictive in nature.32 For

example:

x

6 U.S.C. § 1170(a)(1) (security background checks

of individuals in railroad transportation):

“The term ‘security background check’ means

reviewing [certain databases] for the purpose of

identifying individuals who may pose a threat to

transportation security or national security, or of

terrorism[.]”

31. See A Lawyer’s Introduction to Meaning in the Framework of

Corpus Linguistics, supra, 2017 BYU L. Rev. at 1378-83.

32. These points are also true of the use of pose (or present) a

threat in nonlegal contexts.

21

x

8 U.S.C. § 1735(a) (restriction on issuance of visas

to nonimmigrants from countries that are state

sponsors of international terrorism):

“Nonimmigrant visas may not be issued to an

alien from such a country unless it is determined

“that such alien does not pose a threat to the safety

or national security of the United States.”

x

Ala. Code 1975 15-16-43: (involuntary commitment

of defendant found not guilty by reason of insanity):

Involuntary commitment is required upon a

finding “that the defendant is mentally ill and as a

consequence of such mental illness poses a real and

present threat of substantial harm to himself or to

others[.]” See id. §§ 15-16-41 & 15-16-42.

x

Del. Code § 5005(a)(3) (involuntary hospitalization

upon psychiatrist’s certification):

Involuntary commitment is authorized upon

certification by a psychiatrist that, inter alia, “[a]s

a result of the person’s apparent mental condition,

the person poses a present threat, based upon

manifest indications, of being dangerous to self or

dangerous to others.”

x

N.M. Rules Ann., Rule 5-602.2.B(2) (proceedings

after a finding of incompetency):

“The terms dangerous and dangerousness mean

that, if released, the defendant presents a serious

threat of inflicting great bodily harm on another of

violating [certain statutory provisions.]”

22

In cases in which this Court has used the phrase pose

(or present) a threat, the phrase has meant essentially

the same thing as it does in the statutes above:

x “[O]n the facts and circumstances Officer McFadden

detailed before the trial judge a reasonably prudent

man would have been warranted in believing petitioner was armed and thus presented a threat to the

officer's safety[.]” Terry v. Ohio, 392 U.S. 1, 28

(1968).

x “Where the officer has probable cause to believe that

the suspect poses a threat of serious physical harm,

either to the officer or to others, it is not constitutionally unreasonable to prevent escape by using

deadly force.” Tennessee v. Garner, 471 U.S. 1, 11

(1985).

x “The [Bail Reform] Act authorizes the detention prior to trial of arrestees charged with serious felonies

who are found after an adversary hearing to pose a

threat to the safety of individuals or to the community which no condition of release can dispel.”

United States v. Salerno, 481 US 733, 739 (1987).

x “[The proper application of the Fourth Amendment

reasonableness standard for using force in making

an arrest] requires careful attention to the facts and

circumstances of each particular case, including

…whether the suspect poses an immediate threat

to the safety of the officers or others[.]” Graham v.

Connor, 490 US 386, 396 (1989).

Each of the commonalities referred to above serves

to distinguish these uses from the use of threat and

23

threaten to denote communicative acts. While pose a

threat means much the same thing as pose a risk and

pose a danger, the communicative sense of threat

doesn’t mean ‘risk’ or ‘danger’ and that sense of to

threaten doesn’t mean to risk or to endanger. And while

the determination whether someone has threatened to

use force has to do with their actions in the past, the

determination whether they pose a threat of violence

calls for a prediction about what they might do in the

future.

Related to the latter point is the fact that the two

interpretations differ in the implications they hold for

cases in which the defendant did not intend to carry

out the threat, would have been unable to carry it out,

or both. Under the law as it currently stands, a

defendant who has made a threat that he does not

intend to carry out and has no ability to carry it out can

nevertheless be convicted.33 But despite having made a

threat, such a defendant would not pose a threat.

Under the government’s interpretation, therefore, he

would not be guilty. As amicus has said, the differences

between the two interpretations are neither trivial nor

superficial.

33. See, e.g., Virginia v. Black, 538 U.S. at 359-60; United States

v. Left Hand Bull, 901 F.3d 647, 649 (8th Cir. 1990); United

States v. Glover, 846 F.3d 339, 344 (6th Cir. 1988); United

States v. Parr, 545 F.3d 491, 498 (7th Cir. 2008),

24

3. The government’s interpretation is at best

out of step with the existing caselaw, and

is in conflict with decisions by several of

the Circuits.

Although this Court is of course not bound by decisions by the courts of appeals, it is worth pointing out

the extent to which the government’s argument is at

odds with the existing case law.

Amicus has already cited cases from six of the Circuits interpreting threat and threaten as denoting

communicative acts.34 Those decisions are inconsistent

with any suggestion that engaging in conduct that is

noncommunicative but poses a threat of violence (or a

risk or danger of it) amounts to “the threatened use of

force.” The government has cited no cases to the contrary, and amicus is unaware of any, despite having

done fairly extensive research regarding the issue.

Moreover, several of the cases amicus has cited have

rejected that idea, and they have done so in contexts in

which conduct satisfying the elements of the predicate

offense in question would necessarily pose a threat of

the use of force (or in one of the cases, of the use of a

deadly weapon).

Two of the cases had to do with armed robbery: the

Tenth Circuit held that conspiracy to commit armed

robbery is not a qualifying offense under ACCA,35 and

the Fifth Circuit held that the actual commission of an

armed robbery is not a qualifying offense, where the

34. See cases cited in footnotes 13 & 14, supra.

35. United States v. King, 979 F.2d at 803.

25

offense was defined by state law as simply committing

a robbery while in possession of a weapon.36

The Fifth and Seventh Circuits have both dealt

with statutes criminalizing the act of pointing a firearm at someone;37 the issue in the Seventh Circuit case

was whether the crime fell within the scope of ACCA,38

and in the Fifth Circuit case the issue was whether the

statute qualified as a misdemeanor crime of domestic

violence under 18 U.S.C. § 921(a)(33)(A), which includes within that category crimes that “[have], as an

element,…the threatened use of a deadly weapon[.]”39

In each case the court held that it would be possible for

a firearm to be pointed at someone in circumstances in

which it is clear to those present that no threat was

intended. As a result that the statutes were held not

include as an element the threatened use of physical

36. United States v. Parnell, 818 F.3d at 978, 980-81.

37. Portee v. United States, 941 F.3d 263 (7th Cir. 2018); United

States v. White, 258 F.3d 374 (5th Cir. 2001).

38. Portee, 941 F.3d at 265-66; see Ind. Code § 35-47-4-3 (as in

effect in October 1999).

39. White, 258 F.3d at 381; see Tex. Penal Code § 22.05 (as in effect August 1, 1994). The statute prohibited “[recklessly engaging] in conduct that places another in imminent danger of

serious bodily injury,” and it specifies that “[r]ecklessness and

danger are presumed if the actor knowingly pointed a firearm

at or in the direction of another whether or not the actor believed the firearm to be loaded.”

26

force (in the Seventh Circuit case) or of a deadly weapon (in the Fifth Circuit case).40

In each of these four cases, the court recognized

that conduct sufficient to violate the underlying statute would pose a threat of the use of force (in the cases

decided under ACCA)41 or of a deadly weapon (in the

case decided under 18 U.S.C. § 921(a)(33)(A)).42 Nevertheless, the statutes at issue were held not to be crimes

of violence under ACCA or a misdemeanor crime of domestic violence under § 921(a)(33)(A), as the case may

be. In Parnell, King, and White, the court concluded

that the threats constituting crimes of violence are

communicative threats.43 And while the decision in Portee didn’t use comparable language, the court’s holding

is hard to explain on any other basis.44

With all of this being said, amicus has come across

cases in which statutes were found to have the

threatened use of force as an element even though, in

amicus’s opinion, the prohibited conduct would not

40. Portee, 941 F.3d at 267-69; White, 259 F.3d at 381-84. In the

situations posited in each the decision hypothetical, pointing

the gun would presumably be a communicative act, but one

performed with the intent to amuse rather than threaten.

41. King, 979 F.2d at 803; Parnell, 818 F.3d at 980; White, 258

F.3d at 383-384.

42. White, 258 F.3d at 383-84.

43. King, 979 F.2d at 803; Parnell, 818 F.3d at 980; White, 258

F.3d at 384.

44. White, 258 F.3d at 383-84.

27

necessarily involve a communicative act.45 Although

the results in some of these cases can be seen as

consistent with the government’s argument, that provides only weak support for the government’s position.

In none of the cases in question did the court say

that a defendant could be found guilty of making a

threat based solely on noncommunicative conduct.

Rather, the court took an overly broad view of the kinds

of action that can appropriately found to be communicative. To the extent that these cases reached the

wrong result, therefore, the flaw in these decisions’

reasoning was not in the legal rule they invoked but in

their application of that rule to the predicate statutes.

C. The government’s interpretation is radically

inappropriate, because it would result in the

meaning of the words in statutes changing

from one case to the next.

The government’s interpretation presents a challenge to the principle that the meaning of a word or

phrase as used in a particular provision should remain

stable across all cases in which the statute is applied,

The government does not contend that its interpretation should replace the established interpretation of

threat and threaten as denoting communicative acts.

Therefore, although it does not address the issue, its

position must be that ACCA should be interpreted in

two different ways, with one interpretation being ap45. E.g., United States v. Harden, 866 F.3d 768, 769-70, 771-72

(7th Cir. 2017); United States v. Cortez-Arias, 403 F.3d 1111,

1115, 1116 (9th Cir. 2005).

28

plied in some cases and the other being applied in other

cases. However, this Court has decisively rejected such

an approach to statutory interpretation.

Even if there might be circumstances warranting

interpretation-in-the-alternative, no such circumstances are present here. There is no principled reason to

allowing threat and threaten to have different meanings in different cases. And there are powerful reasons

not to do so.

1. The principle that a statute’s interpretation

should be uniform across all cases was articulated by

this Court in Clark v. Martinez, 543 U.S. 371 (2005).

That case involved a provision authorizing detention of

aliens who fell into any of three different categories, 8

U.S.C. § 1231(a)(6). In a previous case relating to the

second of three categories, the Court had interpreted

the statute not to authorize indefinite detention.

Zadvydas v. Davis, 533 U.S. 678 (2001). At issue in

Clark was whether that interpretation applied as well

to cases arising under the first category. The argument

against doing so was based on the fact that the first

category covered aliens who had never been lawfully

admitted to the United States, while the second

category covered aliens who had been admitted but

were subject to removal. It was argued that the

considerations that had motivated the earlier decisions

applied to aliens who had already been admitted (those

in category 2) did not apply to aliens who had not yet

been admitted (those in category 1).

The Court held that because the text did not draw

any distinction based on admission status, the same

interpretation had to be applied in both categories of

29

cases. Clark, 543 U.S. at 377-84. The Court rejected the

suggestion that the previous interpretation should be

limited to the category that raised the concerns that

the interpretation was based on; “the lowest common

denominator, as it were, must govern.” Id. at 380

(cleaned up). Accepting that argument, the Court said,

“would render every statute a chameleon, its meaning

subject to change depending on the presence or absence of constitutional concerns in each individual

case.” Id. at 382.

In a subsequent case, decided several years after

Clark, eight of the Court’s Justices reiterated the conclusion that the statutory text should be interpreted in

the same way in all cases to which it applies. The case

was United States v. Santos, 553 U.S. 507 (2008), in

which the Court was divided 4-1-4 as to the merits. The

deciding vote was provided by Justice Stevens, who

argued that having two concurrent interpretations is

permissible in at least some circumstances. 553 U.S. at

524-28 (Stevens, J., concurring in the judgment). But

all eight of the remaining Justices disagreed with that

view. Id. at 522-24 (plurality opinion); id. at 532 (Alito,

J., dissenting, joined by three Justices).

2. The government has not asked the Court to revisit the question whether the meaning of a statute can

vary from one case to the next. But even if the Court

were open to that possibility, this case would present a

bad vehicle for addressing the issue. Assuming there

exist circumstances in which deviating from Clark

might be appropriate, no such circumstances are present here. On the contrary, there are powerful reasons

not to do so.

30

First, there is no principled reason to allow competing interpretations of threat and threaten to exist

side-by-side. There exist no considerations such as

those raised by the dissents in Clark, 542 U.S. at 392401 (Thomas, J., dissenting), and Santos 553 U.S. at

524-28 (Stevens, J., dissenting), that could reasonably

be regard as justifying allowing multiple interpretations.

Second, accepting the government’s interpretation

would open Pandora’s box. One of the first problems

likely to arise would be that of determining what kinds

of cases the government’s interpretation might apply

to. But before dealing with that issue, it would be

necessary to decide how to go about deciding the issue.

Would the issue arise only with respect to ACCA? Or

maybe all statutes that include phrases such as threatened use of force? All statutes that are asserted to be

qualifying offenses under ACCA and similar statutes?

All criminal statutes that include the words threat or

threaten? (And if so, why only criminal statutes?)

And regardless of how issues such as those were

ultimately resolved (after who-knows-how-many trips

to this Court), there would remain the need in every

relevant context to decide the underlying question of

which interpretation should apply. That would raise a

whole new set of questions, such as what factors would

be relevant and what the decisional criteria would be.

The final problem amicus can currently foresee as

resulting if the government’s interpretation were accepted is one he has already referred to (pg. 23, supra):

the inconsistency in the outcomes that would result

31

from the different interpretations in at least one identifiable category of cases.

In short, there are very good reasons to abide by the

principle that the meaning of statutory text should remain constant across all cases in which it might apply.

Conclusion

The government’s proposed interpretation of threat

and threaten should be rejected.

Respectfully submitted,

October 29, 2021

Neal Goldfarb

1301 Fairmont St., N.W.

Washington, D.C. 20009

(202) 262-7886

goldfarbneal@gmail.com

Counsel for Amicus Curiae