Concept
Force or Intimidation
Robbery
Force or Intimidation
Presence tells the reader where the property was when the defendant gained control of it, and the second aggravator concerns how the defendant got it. A theft becomes robbery only when the taking is accomplished by force or by intimidation. A taking that involves neither stays an ordinary theft, even when the property came straight from the victim's pocket, as with the wallet lifted from a coat on a bus in the preceding section. The requirement separates the pickpocket from the mugger because the mugger's method puts the victim's body at risk, and that risk is what the law of robbery exists to punish.
The common law recognizes two routes to this element, and each carries its own standard. Force must be strong enough to overcome the victim's resistance, while intimidation requires a threat that creates an immediate risk of death or serious physical injury to the victim or to certain other people near the victim.1 The two routes share one logic. In each, the victim parts with the property because holding on would cost more than letting go, either because the defendant physically overpowers the victim or because the defendant makes resistance dangerous. The standards differ because the proof differs: force is shown by what the defendant did to the victim's body, and intimidation is shown by what the defendant said or displayed and what that conveyed about imminent harm. The next two subsections take each route in turn. Neither addresses when the force or threat must occur relative to the taking, which is a separate question handled in the section that follows them.
Force That Overcomes Resistance
When the prosecution proves the second aggravator through force rather than intimidation, the common-law standard measures the defendant's force against the victim's resistance: the force must be strong enough to overcome that resistance.2 The standard therefore asks a relational question. A defendant who pulls property free from a victim who is holding on has used the kind of force the rule requires, because the victim's hold was defeated by the defendant's strength. A defendant who takes property the victim is not defending has no hold to break and nothing to overcome. Raw physical effort does not settle the question. What settles it is whether the defendant's effort was what separated the victim from property the victim was trying to keep.
The reason for tying force to resistance lies in the danger that sets robbery apart from theft. A thief who must break a victim's grip, or push aside a victim who is blocking the way, has pulled the victim into a physical struggle, and a struggle exposes the victim to injury whatever the thief intended. A thief who slips property away from a victim who never knows it is going has created no such confrontation. The overcome-resistance standard works as the legal marker of the struggle, which lets the law grade the first thief above ordinary theft and leave the second under larceny. The standard also protects a line that would otherwise blur. Nearly every taking from a person involves some contact, such as a finger brushing the lining of a pocket, and if that contact alone satisfied the force element, the pickpocket would be a robber and the difference between robbery and theft from the person would disappear.
That reasoning explains the common-law treatment of a sudden snatching. When a defendant grabs property so quickly that the victim has no opportunity to resist, the only force involved is the force needed to detach the property, and there is no resistance for it to overcome.3 The taking is larceny at common law, however startling it was for the victim. The unnoticed pickpocketing is the clearest instance, but the same analysis covers a swift grab that the victim never had the chance to contest. Students lose this element when they treat any physical contact as force, because the common-law question is whether resistance was overcome.
The two examples differ in the one fact that matters: whether the victim's hold on the property had to be broken. The grip is what turns the first defendant's pull into force that overcomes resistance, while the unnoticed wallet offers nothing to overcome. Resistance can also appear partway through a taking, and when it does the analysis follows it.
The overcome-resistance standard is the common-law baseline, and statutes often depart from it, so it is the default rule and not a universal one. In State v. Mejia the New Jersey Supreme Court described a robbery statute under which a person commits robbery by using force upon another in the course of committing a theft, and it observed that the legislature broadened the common-law definition by allowing force that is less than an assault requires to satisfy the force element.4 The same statute reaches the blindside mugging typical of purse-snatching, where there is neither a threat nor an injury.5 Under that wording, a sudden snatching that is larceny at common law can be robbery, because the statute asks whether force was used upon another and does not ask whether resistance had to be overcome. A legislature that writes the statute this way is judging that taking property through physical contact with the victim is dangerous enough to deserve the higher grade, even when the victim had no chance to resist.
A problem on this element therefore calls for two passes, with the common-law test first and the governing statute second.
Intimidation by Threat
The second route to element (iv) replaces physical contact with a threat, so a defendant who never lays a hand on the victim can still commit robbery.8 The common-law standard for this route has three limits, and a threat has to satisfy every one of them. It must create an immediate risk of death or serious physical injury, and the person endangered must be the victim, a family member, a relative, or a person in the victim's presence.9 Threats to damage property fall outside the standard, with a single exception for a threat to destroy the victim's dwelling house.10 The limits are taken here in this order: the kind of harm, its immediacy, and the person it targets.
Each limit follows from what intimidation stands in for. Force takes property over the victim's resistance, and a threat takes it by making resistance look too dangerous, so the victim surrenders the property to avoid being hurt. That substitution is persuasive only when the danger is to a person and is serious, since only then does giving up the property become the sensible choice. It is persuasive only when the danger is imminent, since only then is there no time to summon help or to think the matter over. A victim told that harm is coming next month, or that a possession will be damaged, keeps room to call the police, to seek protection, or to weigh the loss against the risk. Those threats are better handled under other offenses, and robbery's higher grade is reserved for the confrontation that leaves the victim no such room.
The first limit concerns the kind of harm, which must be death or serious physical injury to a person. In United States v. Wade a man with strips of tape on his face pointed a pistol at a bank teller and the bank's vice president and made them fill a pillowcase with currency, and a pistol aimed at a person communicates a risk of death without a word being spoken.11 In Atkins v. Virginia the defendant and an accomplice, armed with a handgun, abducted a man, took the money he was carrying, and drove him to an automated teller machine where more cash was withdrawn, a sequence in which the captors' armed control of the victim accounts for each transfer of money.12 In both confrontations the victim's body is plainly what is at risk. The contrast with a threat against property appears when a single fact changes.
The difference that decides the second case is what the threat put at risk. A victim's fear, however genuine, does not satisfy the standard unless the danger threatened is the kind the rule names, and a smashed car is not.
One exception qualifies that limit. A threat to destroy the victim's dwelling house counts as intimidation even though only property is endangered.13 The exception modifies the limit on the kind of harm and creates no separate rule, so it reaches the home itself and nothing else. The home holds a place among the interests the law protects most closely, and the rule treats a threat to destroy it as weighty enough to stand in for a threat to the person. Students lose this element when they stretch the exception to any valuable property, because a car or a place of business lies outside it.
The second limit concerns timing: the risk of death or serious physical injury must be immediate.14 A threat of harm at some later date does not satisfy it. A victim who hears that injury lies days away still has time to seek help or protection, and the pressure that makes surrender the only safe choice is missing. The question is whether, at the moment the property changes hands, the defendant's words and conduct put the victim's body at imminent risk.
The third limit identifies whom the threatened harm must endanger: the victim, a family member, a relative, or a person in the victim's presence.15 The list extends past the owner of the property because a victim yields to a threat against a child or a bystander as readily as to a threat against the victim's own body. In one familiar illustration, a robber points a gun at a bank customer and orders the customer to gather the cash from the tellers and hand it over on pain of death.16 The customer carries the money to the robber, yet the pressure that moves it is a threat of death to a person at the scene of the taking, which falls within the rule's list.17
Remove the family tie and the presence, and the threat no longer fits any category the rule names, so a danger to a stranger who is neither related to the victim nor at the scene does not satisfy the standard as stated.
How much space the element deserves depends on the facts. When a defendant brandishes an operating chainsaw in the victim's face, the element can be resolved in a sentence or two, because the display plainly conveys a risk of serious injury and no counterargument is available.18 A fuller discussion is warranted when the display is ambiguous, as in a problem that asks whether brandishing a banana cream pie amounts to force or fear.19 The argument there runs through the standard itself: the question is whether the display conveyed an immediate risk of death or serious physical injury, and an object incapable of causing such injury gives the defense its opening.20