I've blogged before about the true threat doctrine, which limits the types of threats that the government can punish. To summarize, the true threat doctrine holds that a threat can only be punished if it is intended to be taken seriously as a threat (the subjective test) or if a reasonable person would interpret it as a serious threat (the objective test).
This week California provides what appears to be an example.
Over the weekend, media across the country — hungry for shooting-related news — picked up the story of a 24-year-old California man named Kyle Bangayan arrested on suspicion of making threats to schools on Facebook. Here's how the Los Angeles Times described it:
The LAPD said the alleged threat did not specify a particular school but did refer to a deadly shooting in Newtown, Conn., on Friday in which a gunman killed 20 children and six adults. The alleged threat referred to "kindergarten and elementary school kids," sources said.
LAPD chief Charlie Beck said Bangayan's alleged posting included "very specific threats and clear and present ability to carry out those threats."
Chief Beck's reference to Kyle Bangayan's ability probably refers to the fact that he was arrested at his parents' house, where numerous guns were found.
Yet despite Chief Beck's claim that the suspect made "very specific threats," on Monday the Los Angeles County District Attorney's Office declined to file charges. Media reports suggest that the DA's written declination was premised on the notion that the suspect did not threaten a specific school or individual: “There is no reference to threatening actions toward any specific victim or school, which is required in the elements of the … statute.” But I suspect that's incomplete. Subsequent media reports shed a little more light on what the suspect said:
While Bangayan had referenced the massacre in Connecticut, he apparently made no specific threat against a school or person.
He told police that he was joking when he wrote on Facebook that if people don't stop posting about the Sandy Hook Elementary School shootings on the social network, then he would do the same thing in Los Angeles.
He also wrote that thousands of children die in other countries and that Americans needed to get over the shootings.
Saying that we should get over tragedies because people die all over all the time might be a pungent expression of opinion, but it isn't a threat, let alone a true threat. The other statement — that Kyle Bangayan would shoot up schools himself if people didn't stop posting about it — could potentially be a true threat, I suppose. California, following most federal courts, requires proof that a threat is objectively true — that is, that a reasonable person would interpret it as a sincere threat to do harm — even when the statute also requires subjective intent to be taken seriously. California's threat statute reads as follows:
Any person who willfully threatens to commit a crime which will result in death or great bodily injury to another person, with the specific intent that the statement, made verbally, in writing, or by means of an electronic communication device, is to be taken as a threat, even if there is no intent of actually carrying it out, which, on its face and under the circumstances in which it is made, is so unequivocal, unconditional, immediate, and specific as to convey to the person threatened, a gravity of purpose and an immediate prospect of execution of the threat, and thereby causes that person reasonably to be in sustained fear for his or her own safety or for his or her immediate family's safety, shall be punished by imprisonment in the county jail not to exceed one year, or by imprisonment in the state prison.
The statute thus specifically incorporates both the subjective and objective tests. The DA's declination, if it is reported correctly, suggests that the problem is that no specific person has been threatened. I'm not sure that's true: if the state could prove that a local teacher or student was put in reasonable fear by the statement, and that Bangayan intended that result (even if he didn't intend to put that specific person in fear), then it appears to be that the elements would be met. The bigger problem for any prosecution is that the circumstances suggest that the threat wasn't intended to be taken seriously, and that it wasn't unequivocal, unconditional, immediate, and specific enough to convey that it should be taken seriously. It other words, however contemptible a statement it was, it wasn't a true threat. It certainly doesn't sound as if the threat lived up to Chief Beck's description of "very specific."
Whatever the DA's genuine reason for the declination, expect a California legislator to offer a bill making it a crime to threaten a school shooting, which, if passed, will make all the little children much safer.
And Kyle Bangayan? I suspect his parents will have serious difficulties getting their guns back, even though they didn't do anything, and even though Bangayan hasn't been charged with anything. He could sue — and he may well do so — but he'd have to show that the police didn't have probable cause to interpret his Facebook comment as a true threat. Given how low the bar is for probable cause, that's probably a long shot. Bangayan has learned that whether or not his words cross the line from protected speech into true threats, practically speaking it's very dangerous to make joking threats when the nation is in angry, fearful, emotional turmoil.
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