Monday, June 15, 2015

The High School Student, the “Threat” and Emojis

This post examines a California Court of Appeals opinion  that deals with the  prosecution of a juvenile for “commit[ing] a criminal threat.”  In re L.F., 2015 WL 3500616 (California Court of Appeals – 1st District 2015).  “Minor L.F." appealed after "the juvenile court sustained a wardship petition alleging she committed a criminal threat” in violation of California Penal Code § 422.  In re L.F., supra.
The Court of Appeals goes on to explain that
Thomas F.'s two daughters attended Fairfield High School (FHS). One evening in May 2014, one of his daughters told him she did not want to go to school after reading on Twitter that `somebody was going to shoot up the school the following morning.’ The person `tweeting’ was Minor, another FHS student. Thomas F. looked at the `tweets’ on his daughter's phone and then found the Twitter account on his own phone. Although he was not one of Minor's `followers,’ Thomas F. was able to view the account by searching for her username.

The tweets in question were made over the course of approximately three hours. Among Minor's tweets were the following: `If I get a gun it's fact I'm spraying [five laughing emojis] everybody better duck or get wet’; `I'm dead ass [three laughing emojis] not scared to go to jail for shooting up FHS warning everybody duck’; `Nigga we ain't fighting I'm bringing a gun [six laughing emojis]’; `Mfs don't really kno me [two laughing emojis] I have touched a gun pointed one don't [. . .] Bitch I kno how to aim’; `Mfs tripping boii [three laughing emojis] I'm frfr black mask yellow tape homicide niggas better he cool’; `Ain't nobody safe [‘100’ emoji]’; `I'm finnah come to FHS like black opps stabbing niggas! Who really with it?’; `I feel sorry for whoever got c wing 1st period [four laughing emojis]’; `@[username] idk when shit go down prolly the next day’; `I hope ms Sheila run c wing that day’; `Oh yeah all my friends have c wing so d wing’; `And wtf lol tf you getting popped first fr try me [laughing emoji]’; `It's funny cause nobody fighting no more sooooo!! I'm just shootin niggas for fun’; `Mfs wanna test me now [three clapping hands emojis] you crazy I'm crazy too let's die shooting’; `I'm leaving school early and going to get my cousin gun now [three laughing emojis and two clapping hands emojis]’; `Y'all gonna make me go to jail before I step foot on campus [laughing emoji]’; `I really wanna a challenge shooting at running kids not fun [laughing emoji]’; `Ok I'm done and if I get called in by the FBI or something bout shooting up a school you Mfs really gonna get shot’; and `Kill or be killed!!’ Thomas F. also testified that he saw a response on Minor's account in which someone offered to sell her a gun.
In re L.F., supra. (The court refers to her as “Minor” in the opinion and I will do so, as well.)
The court then notes that
[s]ome of Minor's tweets include laughing emojis and statements like `just kidding.’ For example, Minor tweeted: `Lmao I'm really jk tho [three laughing emojis] don't jump him and it's g frfr [“100” emoji] or ima really come spraying’; `Do y'all really think I'm that crazy it's a compliment’; `I love my life [laughing emoji].’ Minor's Twitter account showed that some Twitter users who responded to her tweets did so in a joking manner. For example, one user, `@[username]’ tweeted to Minor `o you crazy [laughing emoji, devil emoji].’

Thomas F. grew concerned about the number and nature of the tweets and called the police. He was concerned for his daughters' safety, and neither of them attended school the next day.
In re L.F., supra.
After Thomas F. called the police, an officer arrived at his house and Thomas F. 
showed the officer the tweets. The officer reviewed and took pictures of the tweets, spoke to Thomas F. and his daughter, and determined Minor's name and address. Thomas F. told the officer he was concerned about his children's safety and feared sending them to school the next day.

The officer went to Minor's home, placed her in handcuffs, and read her her constitutional rights. Minor said that she did not mean the statements she had made on Twitter and that they were a joke. She was unable to explain why she made the statements. She told the officer she was not angry. Minor and her mother told the officer there were no weapons in the house.
In re L.F., supra.
The opinion goes on to explain that on the
same evening, Dr. William Cushman, a vice principal of FHS, received a text message from a former student informing him of tweets indicating that someone was going to shoot up the school. Dr. Cushman asked for screen shots of the tweets. Dr. Cushman saw tweets that made specific references to parts of the school, C-wing and D-wing, and specific people. Dr. Cushman felt `[s]cared and nervous’ because as the person in charge of the lockdown protocol in an emergency, he would have to `go out and clear the hallways and make sure people leave the rooms,’ and he would be in `as much danger as anybody else.’

Dr. Cushman contacted the school resource officer and the principal, and sent out a mass text to school faculty and staff about the issue. The following morning, Dr. Cushman decided to concentrate resources on C-wing. He sent a campus-wide email to the school's staff saying there had been a specific threat to C-wing and directed Bell, who had been specifically mentioned in the tweets, to remain in the office.
In re L.F., supra.
Next, the local District Attorney filed
a juvenile wardship petition alleging Minor had made felony criminal threats against `FAIRFIELD HIGH SCHOOL STUDENTS AND STAFF.’ (§ 422.) Minor demurred on the ground the petition failed to state a public offense, and the court overruled the demurrer.
In re L.F., supra. 
The Juvenile Court then held a hearing on the petition, at which witnesses testified. 
In re L.F., supra.  The opinion summarizes what two of the said on the stand:
An intern at the district attorney's office testified that although she was not one of Minor's Twitter followers, she was able to look up Minor's Twitter account by searching for her username. Minor had about 500 followers. It was possible to create a private Twitter account that could be viewed only with permission, but Minor's account was not private.

Minor's best friend testified that she had read the tweets and did not take them seriously, and that the use of laughing emojis in the tweets indicated that Minor was joking. Minor's sister also testified that when she saw the tweets, she thought they were a joke due to the use of laughing and smiling emojis and the terms for `just kidding’ and `laugh out loud.’ She had never known Minor to be violent or threaten others. No one in the family owned a gun, and Minor did not have access to a gun.
In re L.F., supra. 
After hearing the testimony and whatever other evidence was presented, the
juvenile court sustained the petition after a contested hearing. The juvenile court found that the tweets were clearly a threat. The juvenile court also found specific intent that the tweets be taken as a threat because `[s]he had approximately 500 people on her account . . . and the fact that some of those wouldn't take that as a serious threat is inconceivable.’ The juvenile court stated, `Two to three hours of tweets that -- I just don't see how you can get around it. It was intended to be taken as a threat. There's anger in those. There's statements in there about the teacher going to be the first to get it, and other racial comments about they're going to be the first to get popped and all.’

The juvenile court was satisfied `beyond a reasonable doubt that the offense has occurred.’
In re L.F., supra. 
Minor them moved to have the charged offense reduced to a
misdemeanor, and the trial court denied the motion. Minor was released to her mother and granted probation.  Among Minor's terms of probation, she was prohibited from possessing any weapons or ammunition.
In re L.F., supra. 
On appeal, Minor claimed there was "insufficient evidence" to support a finding that
she made a criminal threat under § 422. Credibility determinations and findings of fact that are not relevant to the 1st Amendment issue are not subject to independent review. . . . Thus, we defer to the lower court's credibility determinations but make an independent examination of the whole record to determine whether the facts establish a criminal threat. . . .

As noted in In re George T., supra, not all threats are criminal. In order to prove a violation of section 422, the People must establish the following: (1) that Minor `”willfully threaten[ed] to commit a crime which [would] result in death or great bodily injury to another person,”’ (2) that Minor made the threat “`with the specific intent that the statement . . . be taken as a threat, even if there is no intent of actually carrying it out,”’ (3) that the threat was, `”on its face and under the circumstances”’ in which it was made, `”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,”’ (4) that the threat actually caused the person threatened `”to be in sustained fear for his or her own safety or his or her immediate family's safety,’ and (5) that the threatened person's fear was ‘reasonabl[e]’ under the circumstances.”” (People v. Toledo, 26 Cal.4th 221 (California Court of Appeals 2001)).

Minor does not dispute that the evidence supports the first element of the offense but argues that there is insufficient evidence to establish the remaining elements.
In re L.F., supra. 
The Court of Appeals goes on to explain that in order to prove a violation of  422,
the People must establish the following: (1) that Minor `”willfully threaten[ed] to commit a crime which [would] result in death or great bodily injury to another person,”’ (2) that Minor made the threat `”with the specific intent that the statement . . . be taken as a threat, even if there is no intent of actually carrying it out,”’ (3) that the threat was, `”on its face and under the circumstances”’ in which it was made, `”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,”’ (4) that the threat actually caused the person threatened `”to be in sustained fear for his or her own safety or for his or her immediate family's safety,” and (5) that the threatened person's fear was ‘reasonabl[e]’ under the circumstances.’ (People v. Toledo, supra). . . .

Minor does not dispute that the evidence supports the first element of the offense but argues that there is insufficient evidence to establish the remaining elements.
In re L.F., supra. 
The Court of Appeals then took up the issue of “specific intent,” explaining that in order to determine whether Minor had the specific intent that her tweets be taken as a threat, 
section 422 `does not require that a threat be personally communicated to the victim by the person who makes the threat’; however, `it must be shown that [she] specifically intended that the threat be conveyed to the victim.’ (In re Ryan D., 100 Cal.App.4th 854 (California Court of Appeals 2002). `[I]f one broadcasts a threat intending to induce sustained fear, section 422 is violated if the threat is received and induces sustained fear—whether or not the threatener knows [her] threat has hit its mark.’ (People v. Teal, 61 Cal.App.4th 277 (California Court of Appeals 1998).

Minor contends there is no evidence she intended to convey her threats to FHS students and staff through her Twitter account. We disagree. Minor had approximately 500 Twitter followers, and her account was publicly accessible. The posts themselves indicate that some of those who replied to, or `retweeted,’ Minor's posts were FHS students. The evidence is sufficient to support the juvenile court's factual finding that Minor intended to convey a threat. . . .
In re L.F., supra. 
The court then went on to explain that,
[r]elying on In re Ricky T., 87 Cal.App.4th 1132 (California Court of Appeals 2001), Minor also argues the evidence does not show she intended her statements to be taken as a threat. The minor in Ricky T. was charged with violating section 422 after threatening his teacher. The minor stepped out of class to use the restroom. . . . When he returned and found the door locked, he pounded on it; when the teacher opened the door, the door hit the minor. He became angry, cursed at his teacher, and said, `I'm going to get you.’ . . .

The teacher felt physically threatened. . . . The police were called the following day. . . . Division Four of the First Appellate District reversed the juvenile court's finding and held that there was no violation of section 422. In re Ricky T, supra. The court concluded the remark was `ambiguous on its face and no more than a vague threat of retaliation without prospect of execution.’ In re Ricky T, supra. Moreover, the court noted, the surrounding circumstances did not indicate gravity of purpose: There was no prior history of disagreements, the police were not called until the next day, and they did not interview the minor again until a week after the incident. In re Ricky T, supra.
In re L.F., supra. 
Minor then argued that her statements were
similarly ambiguous because many of them were accented by symbols of laughing faces and some were accompanied by the terms such as `jk’ or `Lmao,’ which, Minor argues, show her statements were meant as a joke. In the circumstances of this case, we cannot fault the juvenile court's findings.

Minor's threatening statements were made over a period of hours, they included threats to shoot people in C-wing or D-wing, including one named staff member, and Minor stated she was going to get a gun. Moreover, Minor provided specific details about the impending shooting, going so far as clarifying that she would target D-wing instead of C-wing; she also stated she did not care about going to jail and threatened to shoot those who called the FBI. On these facts, it was reasonable for the juvenile court to conclude Minor intended her statements to be taken as a threat.
In re L.F., supra. 
The Court of Appeals then took up another, related issue. Minor' claimed the tweets 
were too vague and general in nature to satisfy the requirement that a threat be `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.’ California Penal Code § 422(a).

To determine if a purported threat meets this standard, it must be examined `on its face and under the circumstances in which it was made.’ In re Ricky T, supra. `The surrounding circumstances must be examined to determine if the threat is real and genuine, a true threat.’ In re Ricky T, supra. Examples of circumstances that may be considered include `the prior relationship of the parties and the manner in which the communication was made.’ In re Ryan D, supra.  `[U]nequivocality, unconditionally, immediacy and specificity are not absolutely mandated, but must be sufficiently present in the threat and surrounding circumstances.’ In re George T., supra. The four elements are `”simply the factors to be considered in determining whether a threat, considered together with its surrounding circumstances, conveys those impressions to the victim.”’ (People v. Wilson,186 Cal.App.4th 789 (California Court of Appeals 2001)). `A threat is sufficiently specific where it threatens death or great bodily injury. A threat is not insufficient simply because it does “not communicate a time or precise manner of execution[;] section 422 does not require those details to be expressed.’ People v. Wilson, supra.
In re L.F., supra. 
The Court of Appeals went on to find that the evidence in this case 
supports the juvenile court's conclusion that Minor's statements were sufficiently `unequivocal, unconditional, immediate and specific’ to constitute a criminal threat under section 422. Minor mentioned her intention to direct violence at specific parts of the school, she said she was `sorry for whoever got c wing 1st period,’ she said she was `leaving school early and going to get [her] cousin['s] gun now,’ and her Twitter page included the statement, `idk when shit go down prolly the next day.’ Indeed, Dr. Cushman notified the school's staff the next morning, `We have a very specific threat. It's limited to C-wing.’

Given the specific references to parts of FHS and an individual staff member and the indication the threats would be carried out in first period, `prolly the next day,’ the juvenile court properly found the threats were `so unequivocal, unconditional, immediate, and specific,’ that they constituted a criminal threat. People v. Toledo, supra.

In re L.F., supra. For these and other reasons, the court affirmed the juvenile court’s finding that “Minor” violated § 422.  In re L.F., supra. 

No comments: