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What happens after a mass shooting is thwarted? The difficulty of assessing a true threat

The firearm used by the shooter Connor Betts, 22, is projected on a screen during a news conference Sunday, Aug. 4, 2019, about a fatal mass shooting along the 400 block of E. Fifth Street, in Dayton, Ohio. Albert Cesare, The Cincinnati Enquirer via AP

SALT LAKE CITY — A Facebook post, a video shared on Instagram, and text messages to an ex-girlfriend were the mediums of choice for three men across three different states last week. Each man allegedly conveyed a desire to commit mass shootings, and each one was arrested by police for their threats.

But making an arrest isn’t the end of the story: what happens after arrests for threats of violence and how likely are the men to be convicted of a crime?

In Florida, Tristan Scott Wix, a 25-year-old man reportedly texted his ex-girlfriend “I wanna open fire on a large crowd of people from over 3 miles away before I die and I need a spotter,” and that “100 kills would be nice,” and was arrested on Aug. 16.

In Ohio, James Reardon, a 20-year-old man, allegedly posted a video on Instagram firing a gun captioned, “Police identified the Youngstown Jewish Family Community shooter as local white nationalist Seamus O’Rearedon.”

Then, last Friday, Brandon Wagshol, 22, was arrested in Connecticut for possession of illegal capacity magazines. The man expressed “an interest in committing a mass shooting,” on Facebook according to CNN.

These were just the latest in a string of arrests for alleged threats of violence made over the past two weeks. Research points to a “contagion” effect, where widely covered mass shootings, such as those in Dayton, Ohio, and El Paso, Texas, result in more violence and the desire for bloodshed ripples out across the digital sphere.

Some perpetrators of past shootings have posted lengthy manifestos espousing violence, but they failed to attract scrutiny until after the crimes were committed. Police said there was enough evidence to arrest the three young men last week. But if convicted, will they serve time in jail, prison, and for how long?

The answer lies in state law whether the courts interpret the statements made online as “true threats.”

When police make an arrest

If police do find a threat credible, and arrest the suspect, there isn’t a uniform protocol. While an actual perpetrator for a mass shooting likely wouldn’t qualify for bail, someone who makes a threat to commit a mass shooting does. In the case of Jose Rafael Guzman, another 20-something who allegedly threatened a Bernie Sanders rally, he was allowed to leave after posting bail and the Long Beach Police confirmed he was no longer in jail.

Nineteen-year-old Baylee Crowe, who was arrested in May for threats of violence and allowed out on bail, was then arrested again three months later for allegedly walking up to a bus stop claiming he planned to shoot up his old high school, according to the Gainesville Sun.

Another young man arrested for illegally possessing an assault rifle and writing he wanted to imitate a shooting that took place in a synagogue in Poway, California, posted bail a day later according to the Mercury News.

Detective Greg Wilking, of the Salt Lake City Police Department, says that before arresting someone for a threat, they have to determine if it’s credible.

“Each individual threat has to be assessed. We have to vet it, look into it, and see if there’s the capability of the individual to carry it out. Their intent plays a part in that: Are they just trying to get a scare out of people?” said Wilking.

The “vagueness” of a threat is also a factor. In the case of Reardon, the 20-year-old in Ohio, the post allegedly targeted a specific group, making it more credible.

State and federal laws vary

Every state has different laws surrounding threats of violence. In Utah, the offense is a class B misdemeanor which can result in up to six months served in jail, while in California threats can result in up to a year in jail or prison. On the federal level, threats of violence are illegal under one section of a law that regulates “interstate communication,” and limits incarceration to five years. Nineteen-year-old Texan Zachary Morgenstern was charged with and convicted federally for threats of violence. Morgenstern called the local Minnesota police department claiming he had placed bombs at a high school in January 2015. Then, two days later, he again called the police and told them he had kidnapped a father and son. Both calls were hoaxes and he went on to make up several more before he was arrested in May.

Someone can be arrested for attempting to commit a crime, a separate offense from threatening a crime, if they have started taking “substantial steps” explained Orin Kerr, a law professor at the University of California, Berkeley who specializes in criminal procedure and computer crime law, in an email.

One case that went to the federal level involved domestic abuse, a love of famed rapper Eminem, and repeated threats of violence. Anthony Elonis, a man in his late 20s, was arrested after he wrote raps on Facebook that included lyrics such as, “Enough elementary schools in a ten mile radius to initiate the most heinous school shooting ever imagined,” although the bulk of the violent posts were dedicated to his wife. Elonis claimed the posts were in the style of Eminem, and were not intended to be read as real threats but as artistic expression.

Elonis was initially sentenced to 44 months in prison but appealed, claiming the jury needed to consider his intent, and the Supreme Court reversed the decision in 2014.

At the time, the central tenet of Elonis was framed as one of free speech, exemplified by headlines like “Supreme Court should decide whether rap lyrics are free speech” and “Is a threat posted on Facebook really a threat?

But Chief Justice John Roberts issued a narrow ruling in June 2015, agreeing intent was important in the case of Elonis (although all local state laws do not require intent for threats of violence charges) but that true threats were still not protected under free speech.

How much does intent matter?

Intent is not a settled question according to Eugene Volokh, a professor at the University of California, Los Angeles Law School who teaches free speech law.

The mental state of the speaker might make a difference in court, says Volokh, but a police officer is only able to speculate about what someone is thinking.

“Every political movement has a violent fringe that is genuinely violent, and it also has people who either for strategic reasons, for bluster, or humor like to use the rhetoric of violence,” says Volokh.

But not every use of this violent rhetoric is a true threat. People may speak of revolutions, or overthrowing the government, but it’s unlikely the police would arrest someone who has no concrete plan.

In 2013, Robert Metzinger, a man from St. Louis who was 31 at the time, was arrested after posting a series of tweets about the Boston Red Sox during the World Series. Metzinger was prosecuted for making a “terrorist threat” because of four tweets, one of which included “The #WorldSeries will be another finish line not crossed by #Boston.” This was six months after the Boston Marathon bombing. The Missouri Court of Appeals dismissed the charges brought by the state, partially because they failed to consider whether they were “true threats.”

Metzinger claimed in his defense that the tweets were jokes, describing them as “insensitive sarcasm, competition, and overt trash talking.” Will the young men arrested last week also claim that they were making jokes, albeit ones that could be interpreted as violent?

Volokh explained most cases rely on the question of “what does the statement look like in context?” Social media both illuminates and obscures context. We don’t see the person behind the screen, and what might have been considered a joke in person looks far more ominous on the web. But it can also show the bigger picture, police can see if there is a pattern or other comments posted in a similar vein.

At least 27 arrests for threats of violence have been made since Aug. 4, according to CNN. Some are sure to claim their posts were misinterpreted. One reporter who interviewed Reardon in the past wrote, “he’ll absolutely say that he made the post as a joke” and the young man already pleaded not guilty to the charges. Whether this claim holds water will depend on the courts understanding of intent and context, and as the past has shown, there isn’t a simple answer.