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In the US, can attaching a condition to a threat have any bearing on whether it's a true threat or not? In other words, is there are difference between the following threats, in terms of criminal law:

  • I'll hit you! (unconditional)
  • If you speak to me again, I'll hit you! (conditioned on something that the other person is perfectly entitled to do)
  • If you try to steal my car, I'll hit you! (conditioned on the other person's criminal behavior)
  • If you violate the 2nd law of thermodynamics, I'll hit you! (conditioned on something impossible)
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The mere presence of a conditional isn't a determining factor, but the context of the conditional can be a contributing factor in determining whether the threat is true or not. See a more recent publication from 2003 for a better understanding of those factors. I definitely wouldn't rely on anything from the 1600s as a reliable source.

Back in the old days a threat was essentially the same as an assault, but nowadays we often view threats and assaults more distinctly and have crafted more specific laws to address them. Just as an "arrest" was once used to describe a seizure of any kind regardless of the duration, more modern case laws have established distinctions between arrests (full-custody seizures) and detentions (temporary, short-duration seizures).

Since most jurisdictions in the US now have a separate statute for addressing threats in order to distinguish them from assaults, we have to read the exact verbiage of each state to determine whether it covers the particulars of the threat. Here are a few examples. Note the similarities and differences in each:

Arizona: Threatening or Intimidating

Texas: Terroristic Threat

New York: Menacing

As you yourself pointed out, simply making a threat isn't necessarily mala en se, and there are times where the law explicitly allows for people to issue threats, particularly when it comes to defending themselves, another person, or their property. For example, in Arizona, ARS 13-407 allows a person to issue a threat of deadly force to defend their property against trespassers, but does not allow them to actually use deadly force to do so. This means that Arizonans who find themselves in a situation where they feel it necessary to issue a conditional threat to an intruder ("leave my property right now or I'll shoot you"), must understand that the threat is empty unless the intruder shifts his focus from mere trespassing to harming a person. (The bad guy doesn't need to know this though, and all the better if he doesn't.) Even though the threat is empty according to the issuer's knowledge, it is still a threat, albeit one that the issuer is legally entitled to make. In this situation, the threat to use deadly force is decriminalized, not because it contained a conditional, but rather because it was explicitly authorized by law.

In practice, many jurisdictions, especially ones with high crime rates, have arbitrarily decided to triage threats cases based on whether they include a conditional statement or not. After all, if you have 1,000 cases a month and a team of only 30 prosecutors, you have to prioritize the cases that are easiest to prove. With that in mind, many prosecutors offices have provided direction to their law enforcement partners to only submit cases that include unconditional threats. Those agencies in turn train their officers to ignore any threats cases involving conditional threats, perpetuating the misunderstanding that a conditional automatically negates a threat as being a true threat.

There are literally thousands of cases where offenders have had their convictions upheld for crimes involving conditional threats. Just think of robbery/carjacking: A man walks up to a victim in a parking lot and says "give me your car or I'll kill you. Despite containing a conditional threat, there isn't a prosecutor or jury in the country that wouldn't instantly recognize this as a true threat and an element of robbery/carjacking.

Conditional Intent to Kill is Enough for Federal Carjacking Conviction.

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    "leave my property right now or I'll shoot you" - the intruder would have the duty to leave anyway. But "never talk to my daughter again or I'll shoot you", is that legal to say to a friend of your daughter who has done nothing wrong and has every right to speak to your daughter?
    – gnasher729
    Dec 6, 2022 at 15:09
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    According to a strict constitutional definition of true threat, yes, "never talk to my daughter again or I'll shoot you", would likely still be considered a true threat unless there are other detracting elements. However, lower courts are under no obligation to adhere to the constitutional definition, which is why knowing the jurisdiction is so important. All lower courts have the right to be less harsh on offenders than the constitutional standard, but they can't be more harsh, since the constitution sets the limit on how far the states can go with regards to taking away a person's rights.
    – Reaganator
    Dec 7, 2022 at 8:27
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    The threat "leave or I'll shoot" isn't necessarily empty - the owner might be willing to face manslaughter charges over permitting the intruder unrestricted access.
    – Therac
    Apr 8, 2023 at 19:54
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No.

Tuberville v Savage ([1669] EWHC KB J25)

"If it were not assize-time, I would not take such language from you." (said while grabbing the handle of sword)

According to this article, conditional threats are not considered a true threat.

The court held that a conditional threatening statement, without an imminent threat of harm, does not constitute an assault.

Here is a similar Law.SE question and answers. Did Zoey Tur assault Ben Shapiro?

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    I would add that you can't evaluate whether or not a threat is a "true threat" purely based upon the words used. Body language, tone of voice, and context are also relevant and could make words that are facially a threat something that isn't actually a threat, or could turn something that is superficially a conditional non-threat into a genuine true threat. Words don't always take their literal or common meaning in all contexts and usually a finder of fact at trial would get to evaluate that question.
    – ohwilleke
    Mar 12, 2020 at 6:48
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    Good point - for that reason, I'm asking specifically about the difference that the addition of the conditional clause makes. In other words, assume that my first example is a true threat, and that all the other examples are identical in every way except for the added condition.
    – John B
    Mar 12, 2020 at 13:20
  • This is not a conditional threat (if P then Q), it is a counterfactual threat.
    – user6726
    Dec 6, 2022 at 15:50

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