Wednesday, October 21, 2009

Terrorism or Terroristic Threat?

This post is about the Supreme Court of Michigan’s decision in People v. Osantowski, 481, Mich. 103, 748 N.W.2d 799 (2008) and the lower court decisions that brought the case to the state Supreme Court.

As this news story explains, in 2005 18-year-old Andrew Osantowski was convicted of “making a terrorist threat” in violation of Michigan Compiled Laws § 750.543m(1)(a). The statute says a “person is guilty of making a terrorist threat” if he or she “[t]hreatens to commit an act of terrorism and communicates the threat to any other person.”

Here, according to one of the briefs filed in the case, is how the charges arose:

Celia McGint, a 16-year old Idaho teenager gave her father, George McGinty, a police sergeant with Washington State University, a `packet of information’ including . . . Internet . . . conversations that she had had with `a person she was chatting with on line.’ After reviewing the document, Mr. McGinty turned it over to his WSU superiors, who forwarded the information to the Clinton [Michigan] Township Police Department [CTPD]. . . .

CTPD Captain Douglas Mills received a call from CTPD Lieutenant Bruce Wade. Wade informed Mills the CTPD had received a facsimile from WSU. The facsimile indicated that McGinty `had received . . . information regarding chat room conversations between his daughter’ and a Clinton Township teenager named Andrew Osantowski . . . Osantowski had made certain `threats’. The facsimile included a copy of the Internet `chat.’ Mills dispatched CTPD detectives to Chippewa Valley High School in Clinton Township, where Osantowski was a student. He also assigned Detective Jeffrey Barbera to serve as the officer-in-charge of the investigation.

David Cannan was the principal of Chippewa Valley. At about 8:30 a.m. [he] . . . learned of the Internet `chat’ involving Osantowski and that the conversations contained `several references to killing.’ Osantowski was a 12th grade student at Chippewa Valley. . . .

At about 10:00 a.m., CTPD detectives placed Osantowski under arrest. A few hours later, . . . Lieutenant Wade interviewed Osantowski at the police station. . . . Lieutenant Wade showed him the document and Osantowski `acknowledged making the remarks.’ He told Lieutenant Wade that he made these threats `[b]ecause [he] was mad.’ . . .

Detective Barbera obtained a search warrant for Osantowski's . . . house. . . . [T]he officers . . . . found a computer in Osantowski's bedroom. . . . In the attic crawl space accessible from the bedroom, [they] found an AK-47[,] . . . . a Mossberg 12-gauge shotgun and an Escort Legacy sports shotgun. . . . [and] substantial amounts of useable ammunition for all three weapons.

[The officers also] found a toolbox containing `about a dozen metal pipes. . . with caps on the ends of some of them, some with no caps with threaded ends, some have screws or nails taped to the outside of them.’ . . . In the same vicinity, [they] discovered a purple bag containing “two one-pound propane containers.’ . . .

At 3:00 p.m., Chippewa Valley cancelled all after-school activities and the CTPD secured the building. The CTPD officers, assisted by canines and deputies from the Macomb County Sheriff's Department searched the building. The following day. . . Chippewa Valley opened its doors. Only about 85% of [its] students attended school that day.

People v. Osantowski, Plaintiff-Appellee’s Answer to Application for Leave to Appeal, 2007 WL 4969062 (Michigan Supreme Court).

Osantowski was convicted of making a terrorist threat, using a computer to commit a crime and possession of a firearm during the commission of a felony. People v. Osantowski, supra. This is the issue that went to the Michigan Supreme Court:

[T]he trial court calculated the recommended minimum sentence range under the sentencing guidelines as 24 to 40 months. It sentenced defendant within this range to 30 months' to 20 years' imprisonment for both the conviction for making a terrorist threat and the conviction for the use of a computer during a crime. . . . [T]he prosecutor had argued that 100 points should have been scored for OV 20 because defendant had threatened to use an incendiary or explosive device; as a result, defendant's recommended minimum sentence range would have increased to 57 to 95 months. The trial court disagreed, concluding that a score of 100 points was appropriate only if the threats themselves also met the criteria to qualify as acts of terrorism. The court found that defendant's threats did not amount to acts of terrorism and that a score of zero points was appropriate for OV 20.

People v. Osantowski, supra. The prosecution relied on a Michigan statute which says the trial court must score 100 points in sentencing an offender if the he “committed an act of terrorism by using or threatening to use, . . . [an] incendiary device, or explosive device.” Michigan Compiled Laws § 777.49a(1)(a). After losing, the prosecution appealed the issue to the Court of Appeals, which reversed the trial court. People v. Osantowski, 274 Mich. App. 593, 736 N.W.2d 298 (Michigan Court of Appeals 2007), reversed by People v. Osantowski, supra. The Court of Appeals found that Osantowski’s “threats to use an incendiary or explosive device” required a score of 100 points. People v. Osantowski (Court of Appeals)..

The Michigan Supreme Court did not agree. It found that the “plain language” of the statute quoted above established that for a score of 100 points to be appropriate, the defendant must have

`committed an act of terrorism by using or threatening to use’ one of the enumerated substances or devices. . . . Thus, the use or threatened use must constitute the means by which the offender committed an act of terrorism. The statute does not state . . . that it applies if the offender `committed an act of terrorism by using or threatening to use, or threatened to use,’ the enumerated items. The statute also provides that . . . `act of terrorism’ means that term as defined by [Michigan Compiled Laws § 750.543b]. Under [§ 750.543b], a threat may constitute an act of terrorism; acts of terrorism must be violent felonies as defined by [§ 750.543b(h)], which specifies that a violent felony is one that includes as an element the `threatened use of physical force ... or the ... threatened use of . . . an explosive device, or an incendiary device.’ But not all threats are acts of terrorism, even if they qualify as violent felonies. To constitute an act of terrorism, a threat must be a violent felony and also must itself be `a willful and deliberate act’ that the offender `knows or has reason to know is dangerous to human life’ and `is intended to intimidate or coerce a civilian population or influence or affect the conduct of government or a unit of government through intimidation or coercion.” [Michigan Compiled Laws § 750.543b(a).]

People v. Osantowski, supra.

The Michigan Supreme Court found that a score of 100 points is only justified when the defendant’s threats also constituted acts of terrorism. People v. Osantowski, supra. It then turned to the issue of whether Osantowski’s threats constituted acts of terrorism.

The Michigan Supreme Court began by noting that the trial court concluded that his threats “did not themselves constitute acts of terrorism”. People v. Osantowski, supra. After reviewing the evidence the trial court relied on, the Supreme Court held that the trial judge’s decision on the issue was not “clearly erroneous”:

The record shows defendant succeeded only in sending electronic messages to a teenager living in another state. The recipient's father, who happened to be a law enforcement officer in Washington, notified Michigan authorities. The prosecution correctly observes that, as a result of this notification, activities at defendant's high school were disrupted. But we cannot agree with the prosecution that these facts require the conclusion that defendant's threats constituted acts of terrorism for purposes of scoring OV 20. We accept the trial court's ruling that defendant did not commit an act of terrorism. Defendant would not `know[ ] or ha[ve] reason to know’ that his e-mail messages to another teenager were themselves `dangerous to human life,’ [Michigan Complied Laws § 750.543b(a)(ii)]. Nor did defendant actually intend his e-mailed threats to another teenager `to intimidate or coerce a civilian population or influence or affect the conduct of government or a unit of government through intimidation or coercion’. . . .

People v. Osantowski, supra. The Michigan Supreme Court therefore reversed the Court of Appeals’ decision and reinstated the trial judge’s sentencing decision. People v. Osantowski, supra.

As this news story explains, last April, a Michigan county court judge stopped Osantowski from being released from prison after serving the minimum term he was sentenced to (four and a half years). I don’t know if he’s out by now or not.

I think the Michigan Supreme Court got it right. I can see how a terrorist threat can constitute an act of terrorism when the threat itself is used to intimidate or coerce a civilian population or even harm people. Here, though. Osantowski wasn’t sending his threats to the people who were their target; he was sending them to someone in another state, someone he presumably never expected to have them sent to the police and the school in his area. That may qualify as a threat, but I don’t see it as a terrorist threat under the Michigan statute.

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