Seventh Circuit Upholds Federal Conviction for Threatening Facebook Rant
February 21, 2017 (Fault Lines) — Venting on social media is nothing new. In fact, humans have been whining and complaining for decades, centuries, and perhaps millennia. An angry outburst can lend itself to violence. In the Appalachian parts of Ohio, it’s not uncommon to take a gun with you to talk to someone who’s angry, which frequently leads to tragic outcomes. Apparently there’s an underlying sense that violence is a foreseeable consequence of anger.
Of course, we like to think we’ve evolved beyond caving in skulls with rocks to resolve arguments. But while an argument can be made that we’re less violent now than in the past, the jury is still out. Even when we’re verbalizing our frustrations like well-dressed apes, it’s not uncommon to see an allusion to violence here and there. Sometimes those are true threats and other times, it is simply our brain opening the valve to relieve the irritation.
This often subtle distinction between true and empty threats causes problems for law enforcement. Say that someone threatens to kill the President. On the one hand, there is a tremendous downside to law enforcement waiting until an attempt occurs or even waiting until the conspiracy forms.
On the other, punishing an empty threat runs afoul of the First Amendment. Plus, punishing an angry-but-empty threat with prison is severe and unnecessary. After all, such a threat wasn’t true and therefore no harm would directly flow from it.
Indiana law enforcement was faced with just this problem when Sam Bradbury posted a threat on his Facebook wall:
I can’t keep silent on this conspiracy anymore. I have to reveal some truth. My buddy and comrade Ant has been catching some flack for some of his posts about killing cops. I have to let out the truth. Jerad and Amanda Miller were losers. They were part of our group, the 765 Anarchists, the town’s cop killing group run by none other than myself, Sam Bradbury. * * * [S]ome of our comrades gave the command and that’s why Jerad and Amanda Miller killed those cops in Las Vegas. * * * [W]e are glad that they killed some police * * *.
The top two on our hit list are Troy Green of the WLPD and Tracy Brown, Tippecanoe County Sheriff. We have field agents out currently gathering information and planning the attack. We have gathered enough thermite and explosives that we intend to not only kill those two pigs and any others who get in our way, but also to cause extreme damage to the county’s various offices’ equipment, including police cars and police buildings.
Before the month is over, we intend to incinerate and destroy no less than 6 police cars, as well as the Tippecanoe County Courthouse, with hits specifically targeted on Judge Les Meade and Judge Loretta Rush also. * * * Our arsenal is massive, and our group has well over 50 supremely dedicated members who are willing to die. * * * I, Sam Bradbury, am responsible for the organization of the group and the acquisition of the chemical weapons, incendiaries, explosives, munitions, and general arms.
We will not stop this plan, we will cause chaos and terror. We will destroy the Tippecanoe County Courthouse in a blaze of glory and we will take out Tippecanoe County Sheriff Tracy Brown, no matter what the cost, even if we lose all of our members in the process, we will not go down without a fight and causing serious damage. So watch out, the cop killers are out. The 765 Anarchists are going to purge the vile pig scum from this land and restore constitutional rights to the people. Call us crazy, call us killers, call us heroes and patriots. We’re okay with all of it. Remember–KILL COPS, STICK PIGS, AND WATCH OUT FOR THE 765 ANARCHISTS, INCLUDING SAM BRADBURY AND ANT!
(FREE SPEECH EXERCISE FOOLS)
As you can see there was some specificity to these threats, unlike writing ‘Kill the Police’ and hitting “Send.” Two judges, a sheriff, and another law enforcement officer were identified by name as targets. Bradbury identified other targets too, six police cars and the courthouse. And he mentioned that he planned to use explosives, specifically thermite. Finally, he identified two people that had recently killed cops as members of his group.
A word to the wise: adding a disclaimer at the end of a highly threatening post doesn’t get you off the hook. You can’t execute a mortgage, tell everyone they’ve been punked, and then expect to get off the hook. Free speech protections don’t work that way either.
In response to the comment posted on his wall, Bradbury claimed it was all satire. Well, he should have just led with that. As we all know, threatening to blow up public property and kill elected officials always makes the best satire. No, Bradbury was trying to get attention. And that’s exactly what he got when one of his Facebook friends dropped a dime on him to the police.
They launched an investigation into Bradbury and got a search warrant to search Bradbury’s bedroom. His bedroom, of course, was in his parents’ house. As it turns out, his threats were not completely empty. Bradbury had less than half a pound of thermite on hand, as well as three and half pounds of materials used to make thermite, and magnesium, which can be used as ignition source. Recall that this was the same material he discussed in his Facebook post.
This earned him both state and federal charges. On the federal side, he was charged with two counts of violating 18 USC 844(e). One count for the threats by using explosives, and the second for threats using fire. The count related to fire was probably due to Bradford bragging about having incendiaries and then finding magnesium at his home.
Before trial, Bradford tried to get the charges dismissed by again claiming his free speech rights, which he believed would thwart the prosecution. Bradbury argued that the Feds couldn’t show that he actually intended to intimidate anyone, and that the threats weren’t communicated to the people threatened in the post. In other words, he was blowing off steam. The trial judge denied his motion to dismiss.
The District Court, relying on Seventh Circuit precedent, found that the threat didn’t have to be communicated directly to the intended target to be illegal. It might strike someone as odd that there truly can be crime about a threat where the target never felt threatened. Without the harm, the purpose of the law can be questioned.
But, as was the case here, the target may eventually hear of the threat and feel threatened. Even more importantly, the real, physical harm would be if the threatener followed through on the threat. In that case, the target’s awareness is immaterial to the harm suffered. Injured is injured; dead is dead.
Likewise, District Court didn’t find that Bradbury had to have a specific intent, although the court did refer to the then pending case of Elonis v. United States. It was a case with similar facts: a person posted a threat to police on Facebook. Although the underlying charges were in different statutes, the free speech defenses were the same. As you may recall, the Supreme Court avoided addressing the issue squarely, specifically avoiding the First Amendment argument. But while the Court did conclude that the threatener must have some kind of wrongful intent to be properly convicted, it failed to provide the type of wrongful intent that must be proven.
Perhaps in an effort to avoid any further free speech arguments and sidestep a possible Elonis-like problem with this statute, the superseding indictment charged Bradbury with ‘willfully making a threat’ and ‘maliciously conveying false information.’ This apparently abandoned the fire/explosive distinction the original two charges were premised on; instead, the difference was his intent.
The jury only convicted him on the count related to ‘maliciously conveying false information.’ This is puzzling because the discovery of the thermite would be strong evidence that Bradford wasn’t conveying false information. Regardless of the jury’s understanding of the law and facts, the judge’s instruction left Bradford only able to argue, on appeal, that the jury misunderstood the jury instruction.
Judge Posner, writing for the Seventh Circuit, gave Bradford’s argument a judicial shiv:
The jurors in the present case, however, could not have believed that the instructions they were given equated “maliciously” to “intentionally,” because that would make trimming one’s fingernails a malicious act. To make a threat, however, is both intentional and malicious—intentional because deliberate and malicious because calculated to inspire fear and provoke a possibly costly response—even if the threatener doesn’t intend to carry out the threat.
And that is how the government argued the case to the jury—that Bradbury should be convicted because he had conducted an elaborate, detailed, and malicious hoax, intending the disruptive effects that resulted from his threat, even though it wasn’t carried out, to blow up a courthouse and kill several named judges and law enforcement officers.
If the Supreme Court dodged conclusively resolving a circuit split in Elonis, then it is quite unlikely that Posner’s formulation of malicious, which is used in the statute, will be the basis for a successful cert petition. So, the moral of the story is don’t threaten people. In particular, don’t threaten specific people in detail. It’s not easy to parse the difference between true threats and empty threats. But if you believe ‘Muh Free Speech’ will get you off the hook, you’re wrong. The judiciary isn’t going to routinely bail out the criminally stupid.