When someone is charged with felony harassment in Washington, the prosecution must prove that the accused knowingly made a threat to kill. But what mental state must the State prove regarding whether the defendant understood the threatening nature of those words? In a significant en banc decision filed on March 19, 2026, the Washington Supreme Court addressed this exact question in State v. Calloway, No. 103374-5, and the ruling has direct implications for anyone facing harassment charges in Seattle, Bellevue, and throughout King, Pierce, and Snohomish Counties.
If you or someone you know is facing harassment charges in Washington, the attorneys at Blair & Kim can help you understand how this new ruling may affect your case. Contact us for a confidential case evaluation.
What Did the Court Decide in State v. Calloway?
Turner Lee Calloway was convicted of one count of felony harassment under RCW 9A.46.020 after making repeated phone calls and alleged death threats to a former friend. While his appeal was pending, the U.S. Supreme Court issued its landmark ruling in Counterman v. Colorado, 600 U.S. 66 (2023), which held that the First Amendment requires the prosecution to prove at least recklessness — not mere negligence — when convicting someone of making a “true threat.”
Based on Counterman, Calloway argued that Washington’s harassment statute was facially unconstitutional because Washington courts had historically required the State to prove only that a reasonable person would foresee the statement would be interpreted as a threat — an objective negligence standard.
The Washington Supreme Court reached two key conclusions:
First, the Court held that Washington’s felony harassment statute, RCW 9A.46.020, is facially constitutional. The statute itself does not prevent the State from proving a true threat based on recklessness, even though prior case law had applied a lower negligence standard. The Court reasoned that a proper jury instruction — one that requires the jury to find at least recklessness — is sufficient to cure the constitutional issue.
Second, the Court found that the jury instruction used in Calloway’s trial was erroneous because it told the jury it could convict based on a negligence standard (whether a “reasonable person” would foresee the statements as threatening). This did not satisfy the Counterman requirement that the State prove the defendant was at least aware that others could regard his statements as threatening violence and delivered them anyway.
The case was remanded to the Court of Appeals to determine whether this instructional error was harmless beyond a reasonable doubt, applying the framework recently clarified in State v. Magaña-Arévalo, No. 103586-1 (Wash. Jan. 15, 2026).
Why Does This Ruling Matter for Washington Harassment Cases?
This decision changes the landscape for felony harassment prosecutions across Washington State in several important ways.
1. The State Must Now Prove a Higher Mental State
Before Calloway, Washington courts applied a negligence-based standard to determine whether a statement constituted a “true threat.” The State only needed to show that a reasonable person in the speaker’s position would foresee the statement being interpreted as a genuine threat.
After Calloway, the State must prove at minimum that the defendant was reckless — meaning the defendant was consciously aware that others could regard the statements as threatening violence, and chose to make them anyway. This is a meaningfully higher burden for prosecutors.
2. Past Convictions May Be Challengeable
Anyone convicted of felony harassment in Washington whose case was pending on appeal when Counterman was decided (June 27, 2023) may have grounds to challenge their conviction. If the jury instructions in those cases used the old negligence-based “true threat” definition, the instructional error identified in Calloway could apply.
The criminal defense team at Blair & Kim has extensive experience defending clients against harassment and threat-based charges throughout the Seattle metro area. If you believe a prior conviction involved improper jury instructions, reach out to discuss your options.
3. Future Jury Instructions Must Change
Trial courts across Washington must now ensure that jury instructions in felony harassment cases include the recklessness standard required by Counterman. The old pattern instruction that asked whether a “reasonable person, in the position of the speaker, would foresee” the statement as threatening is no longer constitutionally sufficient. Defense attorneys should be prepared to object if prosecutors or courts rely on outdated instructions.
Understanding True Threats Under Washington Law
Washington’s felony harassment statute, RCW 9A.46.020, makes it a Class C felony to knowingly threaten to kill another person when the threat places the victim in reasonable fear that it will be carried out. A Class C felony in Washington carries up to five years in prison and a $10,000 fine.
The First Amendment generally protects free speech, but “true threats” — serious expressions of an intent to commit violence — fall outside that protection. The critical question has always been: how do we distinguish genuine threats from heated words, jokes, or hyperbole?
Before Counterman, the answer in Washington was purely objective: would a reasonable person foresee that the words would be taken as a serious threat? Now, the answer requires looking at the defendant’s own state of mind: did the defendant consciously disregard a substantial risk that the words would be understood as threatening violence?
The Concurrence: A Stronger Reading of the Statute
Justice Gordon McCloud wrote a concurrence agreeing with the outcome but disagreeing with the majority’s reasoning. The concurrence argued that Counterman did not merely affect jury instructions — it changed an actual element of the crime. Rather than treating the issue as a matter of jury instruction wording, Justice Gordon McCloud would have interpreted the “knowingly” mental state already present in RCW 9A.46.020(1)(a) to apply to all parts of the statute, including the true-threat component.
This distinction matters for defense attorneys. Knowledge is a higher mental state than recklessness under Washington’s criminal code (RCW 9A.08.010). If future courts adopt the concurrence’s reasoning, the State would need to prove the defendant knew the statements would be regarded as threatening — not merely that the defendant was reckless about that risk.
What Should You Do If You Are Facing Harassment Charges?
Felony harassment charges are serious. A conviction can result in up to five years in prison, a permanent felony record, and lasting consequences for employment, housing, and professional licensing. After Calloway, the legal landscape for these charges in Washington has shifted in ways that can benefit defendants.
The attorneys at Blair & Kim, PLLC understand the nuances of Washington’s harassment and threat-based statutes and stay current on developments from the Washington Supreme Court. With offices in Seattle and Bellevue, the firm serves clients throughout King, Pierce, and Snohomish Counties.
If you are facing felony harassment charges or believe a prior conviction may be affected by this ruling, contact Blair & Kim today at (206) 622-6562 or submit a confidential inquiry online.