Now That’s A Threat!
So what can you say anymore? If you can’t say that you are “planning something big around a government building here in Broward County, maybe a post office, maybe even a school, I’m going to walk in and teach all the government hacks working there what the 2nd amendment is all about,” then what can you say?
Online threats are still threats, just not the same as the old days. Advantage of proving an online threat is that it is in writing, hence there can be no mistaking that it was a threat. Right?
Ellisa Martinez was having a bad night. She had a migraine. She decided to add wine to her woes that night, even then she couldn’t sleep so she decided to send an email. After all, that would relieve some stress, right?
She sent a local radio station an email that included the above language. She then made a telephone call explaining that her husband had sent the email and was planning to “open fire at a nearby school.” While she tried to do this anonymously, she wasn’t especially good at covering her tracks and the Feds figured it out, charging her a federal law making the sending of threatening communications unlawful. She pled but kept the right to appeal.
Now the 11th Circuit Court of Appeals has tossed her conviction. Relying on the Supreme Court’s recent decision in Elonis v. United States, which held that the government had to prove more than a reasonable person would regard the communication as a threat, the Supremes held that “mens rea” was required, although not specifically set out in the statute. (There’s that Supreme Court making law again. They do it all the time folks.)
What is mens rea? Generally, it goes toward intent. Most crimes require intent, though some do not. It matters not, for instance, whether you intended to speed, it matters that you were speeding. That is malum prohibitum. Malum per se crimes require intent, which is the mens rea. Were we in law school, this answer would get you a solid B-, but that is as much as I can do for today.
So back to Ms. Martinez. Simply sending the message wasn’t enough, the court held. The government had to prove her intent to threaten, which they didn’t do because they didn’t know they needed to do it. After the Elonis case, now they know.
Georgia has a statute called terroristic threats and acts. Making this same type of threat is a crime, but even Georgia requires that intent be proven. One can infer intent based on the circumstances around the message. For instance, would it matter to you that Ms. Martinez suggested that “one election is not enough to take our country back from the illegal aliens, Jews, Muslims and Illuminati who are running the show.” Sort of goes toward intent, no? To be fair, she had been drinking. And had a migraine. And was sleep deprived. Maybe she doesn’t normally send in school shooting threats. She was having a bad day.
Don’t we all? I hope not to this extent.