Circuit Court Judge Chris France today found a 17-year-old former Flagler Palm Coast High School student guilty of threatening to kill her teacher through written messages to a fellow-student a year ago. The girl was tried on Dec. 6.
The girl has not been sentenced. That’s pending a so-called pre-disposition report by the Department of Juvenile Justice. A juvenile facing such a charge is generally sentenced to probation and/or counseling, but because of the greater attention, the racial undertone and the political ramifications of the case, her sentence could differ.
The case drew broad attention because of the shocking, racist and violent language the girl and the boy, both white, used to describe the black teacher, Kimberly Lee, as they exchanged written messages through a messaging app during class. The messages were their plan to kill the teacher at her house, and included repeatedly degrading descriptions of the teacher and at times sadistic descriptions of their acts.
The girl claimed the whole exchange was a joke as neither she nor her friend knew where the teacher lived–and as certain things they said clearly pointed to the absurdity of their plan (“wear neon yellow with flashing lights. No one will ever see us.” “Okay bet I have a yellow long sleeve So we are all set.”) But the messages also included repeated boasts that the two students would murder the teacher and that the murder would be a favor to society. The language and the acts described were indistinguishable from a planned lynching.
France convicted the girl not only of making written threats to kill, but on the prosecution’s amended charging information, “adding an alternative method of proof for making, posting or transmitting a threat to conduct an act of Terrorism,” according to his order.
“We respect the court’s decision,” Josh Davis, who represented the girl, said. “We of course disagree with the findings and we will be appealing to the Fifth DCA,” the Fifth District Court of Appeal in Daytona Beach, “not only because of the ramifications for this child and this act, but for hopefully the children in the future who fall underneath such a broad statute, and such a big law, to hopefully get a little better definition, hopefully to get something a little more definitive instead of the broad statute that we have right now.”
Assistant State Prosecutor Jason Lewis, who prosecuted the case, was not immediately prepared to comment on the case in late morning.
Lewis included two theories provided in the statute of proving the girl violated that law. Under that section of law, the crime can be proven if an individual sends a written threats to kill or through the sending of a terroristic threat. “Under the written threat to kill, the actual threat needs to be send to the ‘victim of the threat or their family member,'” France wrote, largely following the wording of a proposed order written by Lewis. “Under sending a terroristic threat, the threat does not have be sent to the victim or to their family member, but needs to be posted or sent where any person can view it. The State proceeded to trial under both theories.”
Since Lee could and did monitor students’ computer activity during class, since the messages were written during class, and since the students were aware they were being monitored, France found the written threats to have been sent directly to Lee, proving the first prong of the law. He found that the writing also “contained a threat to conduct an act of terrorism,” defining terrorism as state law does–as “a violent act or an act dangerous to human life which is a violation of the criminal laws of this state or of the United States.”
France acknowledged that Davis “argued that the Court ought not go down the slippery slope of calling the Juvenile’s rants a terrorist act akin to acts of international terrorism.” But he did not address the slippery slope argument beyond deferring to the law’s definition, which Davis had called “overly broad.”
In what is likely to stand out as one of the more remarkable–and questionable–lines in the order, France then essentially concluded that any act of murder is an act of terrorism–which, of course, courts generally have almost never found to be the case: “The act of murdering someone would fall under this definition by the legislature,” France wrote.
“As the statute is now written, any violent act that is a violation of Florida state law or United States federal law can be considered an act of terrorism,” Davis said. “As I said in closing, we might be shutting down our schools and putting all of our children behind bars if any act of violence could be considered an act of terrorism. It means that any school fight, any road rage incident, any threat about anything, now all of a sudden we’re going to be classifying that as terrorism, and that leads us down a very slippery slope to where basically we can be called a terrorist and be classified as such and be prosecuted as such for any violent act.”
Davis said he doesn’t “believe it’s going to survive,” referring to the law, which the Legislature amended in 2018 to add the wording about terrorism, following the Parkland high school massacre in South Florida. “Even a first degree murder,” Davis continued. “Of course it’s against the law and a person can be put to death for that but does that make the person a terrorist. Those are two widely different things, and I think we need clarification on that. Just because you can be prosecuted for breaking one part of the law doesn’t automatically make you a terrorist, and this statute the way it’s written, that’s exactly what it does.”
The other student in the case was also charged, but he left the country. The case quickly drew the attention of the NAACP, initially because the Flagler County Sheriff’s Office had been reluctant to charge the girl either with a hate crime or a written threat to kill. In the end, it had done neither: it had charged the two students with assault charges. The State Attorney’s Office then charged them with written threats to kill, a second-degree felony, but did not charge them as adults, and did not add the hate-crime component.
“This case has been political from the very beginning,” Davis said, “and the law is not absent from politics. In fact that’s how a lot of the times law is interpreted. It’s through the eyes of what’s going on in society right now, and I believe the racial undertones of this case and all of the different agencies that were involved played a significant factor in the ultimate outcome of this, and I think to argue differently is disingenuous, to put it mildly.”
He said the case is “100 percent going to be appealed,” though he won’t be conducting the appeal.
Flagler County Sheriff Rick Staly, whose agency has made about a dozen arrests since the Parkland massacre on similar charges, and investigated many more cases of threats, saw the decision as a reminder of a message he’s been imparting on parents since then: “I support the judge’s decision,” he said. “We take these cases very seriously. Parents must talk to their children about what is acceptable behavior and language so they’re not criminally charged. After the Stoneman Douglas shooting, Florida has passed laws that are clearly black and white, and with no area for gray. You cannot tell us you were joking, then consider that an affirmative defense. There’s a certain behavior and comments that are not allowed in today’s society, and the sooner our kids understand that and parents talk to them, the better for everybody.”
Staly sees the amended 2018 law as an additional tool to keep the community safe, and noted that the law was amended at the same time that other laws increased the availability of psychologists, counseling and mental-health supports in schools. “The Legislature makes the laws. It’s our jobs to enforce the laws and the state to prosecute,” he said, when asked about the severity of the law. Any change would have to come from the Legislature, he said. “I think the fear is to have a kid like Cruz in South Florida that was given many, many, many opportunities and was never dealt with thoroughly, then maybe that massacre could have been prevented. So I don’t know the true legislative intent because I’m not a legislator, but I think the intent was to make sure kids don’t fall through the loopholes or are given so many breaks that they’re not learning the lesson.
“In my mind,” he continued, “this really goes back to parenting in the very beginning. Parents need to be a sheriff in their home before we have to be a sheriff of their kid, and unfortunately so many parents today want to be their child’s friend and not the parent. There’s a delineator between the two. It’s always good to be friendly with your child, but don’t forget your role as a parent.” He recalled the case of the two students who got into an argument over NFL teams earlier this month–then one of them ended up facing that same charge of making written threats. “Unfortunately this is a microcosm I guess of what the American culture has evolved into, and it’s not good. When I was a kid growing up, if I were to use some of the language these kids are using and how they’re treating their peers, my mother would have washed my mouth out with soap. And today some parts of our culture would say that would be child abuse. I don’t think so. I think you have a right to discipline your children. You just can’t go overboard.”
Aaron Delgado, an attorney at Daytona Beach’s Delgado and Romanick law firm who’s handled numerous cases–adults and children–involving threats, says the law has gone too far in the direction of legislating speech and thought. “The idea of imposing strict liability like that on speech is just anathema to me,” Delgado said, questioning the constitutionality of the law. He cited the case of Florida rapper Christopher Maurice McCallum, who was arrested in April and charged of threatening a mass shooting after one of his lyrics promised to “catch you at a Gator game and shoot the whole campus up.” The charge was dropped in September, but only as part of a plea to a lesser charge of resisting.
“To me this is pretty much getting into thought crime, and when you deal with the thought crimes of children who are definitely immature and impaired when it comes to making rational choices, it seems tremendously unfair. It’s a bad law, bad statute, from top to bottom,” Delgado said. “I feel like there has to be a constitutional challenge there somewhere.”
Delgado points to a recent U.S. Supreme Court case that may inform the constitutionality of convictions under the written-threat-to-kill law–a 2015 decision, by an 8-1 vote, that found that any such conviction requires proof of the defendant’s intent to threaten. “An objective reasonable person standard does not go far enough to separate innocent, accidental conduct from purposeful, wrongful acts,” the court-case database site Oyez summarizes, “The Court held that, in this case, an objective standard would risk punishing an innocent actor because the crucial element that makes this behavior criminal is the threat, not merely the posting.”
Delgado last year defended a student who was found to have a “kill list” the student had carried in a back-pack for about a year. The student was charged under the same law that got the FPC girl charged, but as in most such cases he’s handled, Delgado said the student got a deferred prosecution agreement: as long as the student behaves for a set period of time, the charges are then dropped.
The law as written, he said, reflects legislation from a place of fear. “In the goal of combating crime we’re going to erode the very freedom that make us so unique,” he said.