The white girl who chatted through her computer during class with another student about murdering her black teacher at FPC last December was on trial last week. Judge Chris France will rule in the next few days. The girl, now 17, faces no hate-crime charges, but a second degree felony count of making written threats to kill. If she is convicted, it will not be justice but vengeance—a misreading of a law that’s been routinely mis-applied since it was amended last year in light of the Parkland high school massacre.
The law itself isn’t poorly written so much as poorly cobbled: it combines threats of harm to an individual with terrorism and mass-shootings, badly conflating two types of crimes. Not surprisingly, it’s being badly read by cops and prosecutors. It’s up to judges to check the errors.
None of this diminishes the depravity of what the girl wrote to her friend, who has since fled the country. The girl claimed in the audio of an interview with investigators that she was a flower child, tolerant of all. That’s bunk. She wrote in the language of the vilest daughter of Jim Crow, not only describing what violent acts she would do to her teacher, but going out of her way to dehumanize her teacher only because she’s black. Let’s not kid ourselves: that kind of language has been resurgent, its white supremacist yappers triumphant enough to get a pass even from the White House (the president called some of them “very fine people,” remember). We’re living in vile times. So the girl isn’t getting her cues in a vacuum.
But she wasn’t charged with a hate crime, and bigotry of its own is not a crime. It’s revolting speech, But it is protected speech. From that point on, legally speaking, the racist aspect of the case before the judge is a non-issue. It can’t be used as an aggravating factor because there is no such thing within that law, nor in the charging information against the girl. It certainly can’t be used to prime the case against the girl or to back into some kind of case against her because the rest of the case on its own isn’t nearly as strong as the racist brutality of her words.
And that case isn’t strong at all.
Nor can the way the teacher and her family reacted to the threats be used as aggravators, or as any kind of evidence against the girl. The teacher quit school for a while, bought a gun, had her life upended, felt threatened and worried about her family. None of that is in dispute. Of course she shouldn’t have been subjected to those fears. But a person isn’t guilty or innocent based on how her victim acted. A person is guilty or innocent based exclusively on how that person alone acted.
So the teacher’s response, however unconscionable its cause, doesn’t change the only question at issue in the case, as the prosecution correctly framed it: did the girl directly threaten the teacher or her family? She did not.
The law, pre-2018 or post-2018, is clear: to be a “written threat to kill,” the communication must be addressed “to the person” or to “any member of the family of the person” targeted. Unless the judge wants to go hunting for William Douglas-like “penumbras” in the wording of the law, he can’t make the language’s square pegs fit in the prosecution’s round holes. The communications, such as they were (they were hardly English, they were barely human) crisscrossed on a messaging platform during class, between the two idiot students. The students knew they could be monitored, and in fact were (that’s how the messages were flagged, though at first the teacher who flagged them was in another classroom and had no idea what the two students were referring to).
But to claim, as Assistant State Prosecutor Jason Lewis did, that since they knew they could be monitored, they then really intended their threats to be read directly by the teacher, is as outlandish as claiming that a student’s fictional story in creative writing class about murdering the teacher in real life is an actionable threat. It’s not, and there’s case law to prove it (a college student went down that route in the earlier days of the Internet).
Lewis knew he had a weak case. He said it in his closing, when he set out to try an end run around his own limited evidence: “Now I will concede with Mr. Davis,” Lewis said, referring to Josh Davis, the girl’s attorney, “that the theory under the state’s case under count one of the way to prove it … is a little bit more difficult, judge, and it’s an unusual way to try to prove it. But I believe the facts in this case are so unique and so distinguishable that it falls under that.”
You see what he’s doing: he concedes that the girl didn’t threaten the teacher directly. But “the facts in this case are so unique and so distinguishable.” What were those facts that Lewis spent so much time illustrating before the judge (it was a no-jury trial)? The brutality of the girl’s language, its bigotry, its abject degradation, and of course the way the teacher reacted after she found out (the teacher took the stand). In other words, facts none of them relevant to the strict, correct application of the law. Lewis was reaching for emotion, not evidence.
I’m saying all this as an outright admirer of Lewis. Having watched him try cases for years, he’s is one of the best prosecutors in the judicial circuit. He’s also remarkably honest, especially with himself. He didn’t concede weak points just once, but twice: “Obviously I agree with the defense,” he continued, “we can’t necessarily argue that there’s attenuation with other people who are related to Miss [Kimberly] Lee [the teacher] because I don’t think that’s the intent of the statute,” meaning that other faculty members who saw the girl’s words could not be considered relatives of Lee’s, nor could the words somehow have been intended for the teacher’s relatives. So that’s out. “But it’s the state’s position, because she put it over a system that Miss Lee was monitoring, she had good thought process that Miss Lee could be monitoring it, that it was sent to Miss Lee.”
In other words, it was not Situation A. It could have been Situation A. Therefore it’s Situation A.
The syllogism fails, Mr. Lewis, and this is not rhetoric class: a girl’s freedom is at stake.
Lewis pushed on, knowing he’d have a hard time convincing the court to bend the law’s language his way. So he piled on with another approach, the legal equivalent of throwing speghetti on the wall and hoping some of it sticks: he switched to that second part of the law, the part added after Parkland: “Certainly if the court differs on their opinion on that,” he said about the wording of the law’s first part, “I want the court to look at the second way to prove it, which is, the written threat to conduct an act of terrorism.” He was now equating the girl’s language to an act of terrorism.
He knew he was being outlandish, and qualified his lunge by veiling it behind Davis’s argument: “I know Mr. Davis doesn’t think what was threatened is terrorism. I know he thinks the definition is way too broad. But the Florida Legislature is the one who makes the laws, and the Florida legislature has determined that the definition of terrorism is a violent act or an act dangerous to human life” in violation of law.
That’s right: a violent act or an act dangerous to human life, like a mass shooting–the demonstrated plan or intent of a mass shooting or an act of terrorism. Not the bedraggled verbal vomit of a pair of cretins wasting time in English class about attacking a teacher (about whom, it turns out, they knew nothing, least of all an address). Nothing the two students said could be interpreted as intimating a mass shooting or an act of terrorism. If the court interprets it Lewis’s way, then Davis is right, as he said with only some exaggeration in his own closing: there’d be hardly anyone left in class. And we’d be criminalizing language and stupidity in a way that would make us more Gilead than America.
But we are going down that route, thanks to the expanded “written-threats-to-kill” law. For eight years before Parkland, when the law did not include the wording about terrorism and mass shootings, the first part was still there entire: anyone who made a threat to kill could be arrested and charged with a second-degree felony. Hardly anyone was, certainly not in schools, for the decade that I’ve been covering the beats. It’s not that students weren’t making idiotic threats. They just weren’t being arrested for it, because everyone knew, everyone knows, it’s not the sort of thing worth burning a student’s record over. But in 2018 a fishnet mentality replaced common sense. Arrest and charge hundreds of students across the state if necessary as long as it might prevent one shooting. We would never apply the same sort of preventive (and illegal) approach to other crimes in society at large. But we do against students because the two parts of the law, legitimate in and of themselves, in tandem have produced a monster of Orwellian policing–and because juvenile cases are rarely public and almost impossible to follow in court.
The State Attorney’s Office could never have charged the girl based on the pre-2018 law’s wording alone, as even Lewis recognized. But nor could the State Attorney’s Office have charged the girl had the second part of the law stood on its own, divorced from the first, because the two students clearly were not plotting an act of terrorism or a mass shooting (otherwise every threat to kill in any circumstance is automatically an act of terrorism: we can make that argument in sociology or criminology class. But Florida law as it stands does not). Combine the two parts of the law, and a sharp prosecutor can borrow bits and pieces from each and try to make the charge stick. That’s what Lewis was doing. But that was an act of conjuring, not lawyering. (The State Attorney’s Office could have charged them with conspiracy and been on firmer ground. But it didn’t.)
No one is saying the girl shouldn’t have suffered consequences. She did, anyway, if not nearly as radically as what she inflicted on the teacher. She was expelled and, in a disturbing irony, has been getting educated online since (she’s graduating this month). But she was also clearly made an example of, as are young students every time they’re arrested and charged under the same statute, when authorities know full well there’s no intention, let alone means, of actual harm (yes, of course they know). And to make examples of students is no less of a terror tactic than that of authoritarian regimes that rule by fear. It may make some of us feel better as a society desperate for more control over uncontrollable violence. But it’s not addressing the problem. It’s using the law to hunt down scapegoats. That’s legally indefensible, which is why ultimately this law will not stand scrutiny when challenged.
Keep in mind: the two detectives who worked the case initially had it right. They saw no reason to charge the girl. When the NAACP got involved, they were pressured to come up with something. They did. Weird, misdemeanor assault charges on the two students. The State Attorney’s office could have refused to file the charges. But the case had become politically polluted by then, coming up on a year when the state attorney is looking to be reelected and didn’t want the NAACP creating a vulnerability for him. So his office doubled down, filing the written threat to kill charges and, as in so many other cases, riding what for now has been an electoral fount of tough but entirely empty talk against mass violence.
Cops and prosecutors did their job. Let’s hope the judge does his.
The relevant section of law as amended in 2018:
836.10 Written threats to kill, do bodily injury, or conduct a mass shooting or an act of terrorism; punishment; exemption from liability.—
The relevant section of law before the Parkland school massacre:
836.10 Written threats to kill or do bodily injury; punishment.—
Any person who writes or composes and also sends or procures the sending of any letter, inscribed communication, or electronic communication, whether such letter or communication be signed or anonymous, to any person, containing a threat to kill or to do bodily injury to the person to whom such letter or communication is sent, or a threat to kill or do bodily injury to any member of the family of the person to whom such letter or communication is sent commits a felony of the second degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084.