Somewhere else in Massachusetts, a twelve-year-old boy, Johnny, walks the hallway of his middle school accompanied by his teacher’s aide. They discuss how horrible the school lunches are, and, in his frustration, the boy states that he will “bring a gun to school to blow them up.” The boy makes no other mention of any weapons or a plan to harm anyone. The aide, because of school policy, must inform the principal of the boy’s statement. Soon, the police are called and they speak to the boy.
What do these scenarios have in common? Both are prosecuted under the same statute: M.G.L. c.269 §14. This statute, hereinafter the Terrorist Threat Statute, makes it a felony to communicate a threat that a dangerous weapon will be used or present at a location. As an adult, there is a maximum sentence of 20 years imprisonment.
This statute was not created specifically to prosecute children like Johnny. However, recent events such as the shootings in Aurora, Colorado and, particularly, Newtown, Connecticut, have caused schools and law enforcement all over the country to react in overzealous fashion to statements and student conduct. Not only are juveniles across the country being suspended for fashioning firearms out of pastries, but they are being prosecuted as terrorists for mentioning the words “gun” and “school” in the same sentence. These politically charged reactions highlight the constitutional infirmities with the Massachusetts’ Terrorist Threat statute, particularly as applied to juveniles.
A. The Terrorist Threat Statute
In the aftermath of September 11, 2001, Massachusetts enacted an emergency statute designed to proscribe communications that threaten to hijack airplanes or have deadly weapons, such as bombs, present at a specified location. In essence, the statute was created to fight threats of terrorism. This “Terrorist Threat Statute” makes punishable:
“Whoever willfully communicates or causes to be communicated, either directly or indirectly, orally, in writing, by mail, by use of a telephone or telecommunication device including, but not limited to, electronic mail, Internet communications and facsimile communications, through an electronic communication device or by any other means, a threat [. . .] that a firearm, rifle, shotgun, machine gun or assault weapon, as defined in section 121 of chapter 140 . . . a harmful radioactive substance or any other device, substance or item capable of causing death, serious bodily injury or substantial property damage, will be used at a place or location, or is present or will be present at a place or location, whether or not the same is in fact used or present . . . .”The maximum penalty for violation of this statute is twenty years. The language of the statute is quite plain, and many terms remain undefined. For instance, “threat” has never been defined in the context of the statute. Currently, only one case exists that discusses the elements of the offense.
In Commonwealth v. Kerns, 871 N.E.2d 433 (2007), the Supreme Judicial Court held that the common law definition of threat, as used for the purposes of “threats to commit a crime,” does not apply to the terrorist threat statute. Thus, “threat” for the purposes of the statute does not mean “an expression of intention to inflict a crime on another and an ability to do so in circumstances that would justify apprehension on the part of the recipient of the threat.” The reasons the court supplied was, first, they are two distinct statutes, and second, the terrorist threat statute does not protect people—it protects locations. According to the court, the elements of the terrorist threat statute are simply: (1) that the defendant willfully communicated a threat (2) to use or have present (3) a dangerous devise or substance capable of causing serious bodily injury, or substantial property damage (4) at a place or location. Thus, no victim, apprehension, or fear is required under the statute. Nothing indicates whether a “threat” under the statute is anything more than a bare statement that some event is impending, and the case law made the meaning of threat even more unclear.
B. A Climate of Fear – The Response to Newtown
There is no question that a climate of fear has developed in response to tragic events such as these. Following the events of Newtown, students all over the country were reprimanded for even insinuating the existence of a weapon. For example, a five-year-old girl was suspended from school, mandated to take a psychology evaluation, and labeled a terrorist threat for saying that she and a classmate should shoot toy bubble-making guns at each other. A seven year old was suspended for biting his Pop-Tart into what a teacher believed was the shape of a handgun, and all students were sent home with a letter that discussed the incident. Students have been prosecuted for wearing National Rifle Association t-shirts to school. In addition, many have been charged with making “terrorist threats” under applicable state statutes for stating that they would bring a gun to school, regardless of the context, whether the threat was credible, or whether they intended to place schools in fear of future violence.
Some state legislators have already proposed legislation to prevent actions against children for conduct that does not amount to a threat. For instance, in Maryland, a state senator proposed an act humorously referred to as the “Toaster Pastry Gun Freedom Act,” which prevents situations such as the suspension for the gun-shaped Pop-Tart from happening in the future. The legislation targets only school discipline, such as suspensions or an entry on the student’s academic record. However, it follows that if such conduct cannot even be disciplined at the school level, the state’s criminal statutes certainly should not reach it.
Prosecutors in Massachusetts have begun prosecuting juveniles under the terrorist threat statute for actions that amount to saying they should bring a gun to school as a matter of expressing frustration, and not as a result of an actual detailed plot to conduct a school shooting. Clearly, the climate of fear that exists in this nation is having a direct impact on how school threats are dealt with—namely police involvement in such matters. After the recent events in Boston, it is not unfounded to assume that the overzealous prosecution of individuals for statements that mention firearms or weapons will continue to grow.
C. The Terrorist Threat Statute Is Unconstitutional.
The Supreme Court has held that when a law (1) fails to provide the kind of notice that will enable ordinary people to understand what conduct it prohibits or (2) authorizes or encourages arbitrary and discriminatory enforcement by police, the law is void for vagueness and must be struck down as a violation of the Fourteenth Amendment’s Due Process Clause. The statute must be even more explicit about what it prohibits when the law implicates the First Amendment.
In the case of the terrorist threat statute, the elements are poorly defined. The statute is ambiguous. While judicial interpretation can remedy a vague statute through providing more precise terms, there is only one case that discusses this statute. In Kerns, the court held that the elements of the terrorist threat statute were: (1) that the defendant willfully communicated a threat (2) to use or have present (3) a dangerous devise capable of causing serious bodily injury (4) at a location. Clearly, the statute and relevant case fail to define the term “threat,” which prevents ordinary individuals from being put on notice as to prohibited conduct, and encourages arbitrary enforcement.
If no definition of “threat” applies, and one just needs to communicate to another person that a substance or devise capable of serious bodily injury will be present in a particular place, then the statute criminalizes an excessive number of statements, making it unconstitutionally vague. For instance, under the Kerns’ articulation of the elements, a crime may be committed when someone tells their wife that they are going to the shooting range with the firearm that they own legally. No fear or threat of violence is required. Further, if a child said he was going to blow up the entire planet with an atomic bomb that he will position on the moon, then he would be committing a terrorist threat under M.G.L. c.269 §14, despite the fact that no reasonable person would ever perceive this threat as credible. It is inconceivable that the intent of the legislature is to label juveniles who make idle statements that do not cause fear or disruption terrorists under the terrorist threat statute, yet the statute provides no parameters for its applicability.
The Massachusetts legislature could not have intended for law enforcement to enforce the statute against anyone who states that they will bring a dangerous device to a location to a third party. There is no language in the statute or in Kerns to suggest that “threat” would not encompass statements made in jest. Because of this, it is impossible to determine how the statute is to be enforced. Clearly the statute authorizes arbitrary enforcement and fails to put citizens on notice as to what conduct is proscribed.
In today’s climate of fear, juveniles are consistently being treated like criminals for uttering statements that no reasonable person should hold as threatening. In order to protect First Amendment and Due Process rights, legislators must revise the statute to include more specific language. In addition, the criminal justice system must not become a place where children are educated on politically correct speech—such lessons do not belong there.
The statute should be rewritten to better define “threat” and to include additional elements, such as the element of fear and intent to cause fear. Above all else, however, prosecutors should not let political atmospheres dictate how certain issues are handled.
