Teen’s re­mark ruled a threat

Luzerne boy said he ‘wanted to beat the record of 19’ af­ter Park­land, Fla., mas­sacre

The Morning Call - - FRONT PAGE - By Peter Hall

A 15-year-old boy who told class­mates he “wanted to beat the record of 19” days af­ter the na­tion’s dead­li­est high school shoot­ing last year made a ter­ror­is­tic threat, a Penn­syl­va­nia ap­peals court has ruled.

The state­ment, made af­ter the Feb. 14, 2018, mass shoot­ing at Mar­jory Stone­man Dou­glas High School in Park­land, Florida, rat­tled the Luzerne County vo­ca­tional high school where the boy was a stu­dent, class­mates tes­ti­fied at his delin­quency hear­ing in ju­ve­nile court.

The boy, iden­ti­fied in court fil­ings only by the ini­tials J.J.M., chal­lenged the ju­ve­nile court’s find­ing that he was delin­quent, ar­gu­ing that Penn­syl­va­nia’s ter­ror­is­tic threats law violates the First Amend­ment’s guar­an­tee of free speech.

A three-judge panel of the Su­pe­rior Court ruled this week that J.M.M.’s state­ment was

made with con­scious dis­re­gard of the risk that it would cause ter­ror among those who heard it. For that rea­son it was not pro­tected by the First Amend­ment.

The de­ci­sion deals with un­set­tled ques­tions about when a speaker’s state of mind makes threat­en­ing state­ments il­le­gal. Although the U.S. Supreme Court and the Penn­syl­va­nia Supreme Court have not de­cided whether reck­less­ness is enough to make threat­en­ing state­ments crim­i­nal, the cir­cum­stances of J.M.M.’s re­mark made it il­le­gal, the Su­pe­rior Court ruled.

“We hold that in the con­text of the spe­cial cir­cum­stances at­ten­dant with threats made in a school set­ting, a threat made with the men­tal state of reck­less­ness … con­sti­tutes a true threat fall­ing out­side the scope of the pro­tec­tions of the First Amend­ment,” Judge Mary Jane Bowes wrote for the panel.

J.M.M. had cul­ti­vated an im­age among his class­mates as be­ing pre­oc­cu­pied with thoughts of death, ac­cord­ing to the opin­ion. He must have known the ef­fect his words would have on his fel­low stu­dents in the wake of the Florida shoot­ing, Bowes wrote.

“Yet he chose to ut­ter them any­way, in school, in the hall­way be­tween classes, for any­one and ev­ery­one around him to hear,” Bowes wrote. “We do not be­lieve the First Amend­ment is or ever was in­tended to give [J.M.M.] the right to do so.”

The opin­ion notes that although J.M.M. stated he wanted to break the “record of 19,” the gun­man at Mar­jory Stone­man Dou­glas ac­tu­ally killed 17 peo­ple. A wit­ness in the Luzerne County case tes­ti­fied she was un­cer­tain of the num­ber, but nonethe­less in­ter­preted her class­mate’s state­ment as a ref­er­ence to the Park­land shoot­ings.

A Luzerne County pub­lic de­fender who rep­re­sented J.M.M. and the as­sis­tant dis­trict at­tor­ney who pros­e­cuted the case did not re­spond to phone mes­sages.

While the First Amend­ment gen­er­ally pro­vides a right to free speech, it does not pro­tect threats of vi­o­lence be­cause of the need to pro­tect peo­ple from the fear of vi­o­lence, the dis­rup­tion that fear causes and the chance that vi­o­lence will ac­tu­ally oc­cur, the Su­pe­rior Court noted. Courts have strug­gled to de­fine what con­sti­tutes a true threat not pro­tected by the Con­sti­tu­tion.

The Su­pe­rior Court panel found sup­port for reck­less speech as a true threat in a dis­sent to the U.S. Supreme Court’s de­ci­sion in the case of a Lower Sau­con Town­ship man who made Face­book threats against Dor­ney Park and Wild­wa­ter King­dom, his es­tranged wife, law en­force­ment and an un­spec­i­fied kinder­garten class.

The ma­jor­ity ruled in 2015 that ju­rors were im­prop­erly in­structed to de­ter­mine whether a rea­son­able per­son read­ing the posts would see them as threat­en­ing and that pros­e­cu­tors were re­quired to prove the writer’s state of mind. The man’s con­vic­tion was up­held, how­ever, be­cause the Third U.S. Cir­cuit Court of Ap­peals found the mis­take had no im­pact on the out­come.

Jus­tice Samuel Al­ito wrote in a sep­a­rate opin­ion, “Some­one who acts reck­lessly with re­spect to con­vey­ing a threat nec­es­sar­ily grasps that he is not en­gaged in in­no­cent con­duct. He is not merely care­less. He is aware that oth­ers could re­gard his state­ments as a threat, but de­liv­ers them any­way.”

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