The "True Threat" Doctrine In Action: DA Declines to Charge Californian For Facebook Comments About School Shooting

Law

I've blogged before about the true threat doctrine, which limits the types of threats that the government can punish. To summarize, the true threat doctrine holds that a threat can only be punished if it is intended to be taken seriously as a threat (the subjective test) or if a reasonable person would interpret it as a serious threat (the objective test).

This week California provides what appears to be an example.

Over the weekend, media across the country — hungry for shooting-related news — picked up the story of a 24-year-old California man named Kyle Bangayan arrested on suspicion of making threats to schools on Facebook. Here's how the Los Angeles Times described it:

The LAPD said the alleged threat did not specify a particular school but did refer to a deadly shooting in Newtown, Conn., on Friday in which a gunman killed 20 children and six adults. The alleged threat referred to "kindergarten and elementary school kids," sources said.

The LAPD made sweeping claims about the alleged threats:

LAPD chief Charlie Beck said Bangayan's alleged posting included "very specific threats and clear and present ability to carry out those threats."

Chief Beck's reference to Kyle Bangayan's ability probably refers to the fact that he was arrested at his parents' house, where numerous guns were found.

Yet despite Chief Beck's claim that the suspect made "very specific threats," on Monday the Los Angeles County District Attorney's Office declined to file charges. Media reports suggest that the DA's written declination was premised on the notion that the suspect did not threaten a specific school or individual: “There is no reference to threatening actions toward any specific victim or school, which is required in the elements of the … statute.” But I suspect that's incomplete. Subsequent media reports shed a little more light on what the suspect said:

While Bangayan had referenced the massacre in Connecticut, he apparently made no specific threat against a school or person.

He told police that he was joking when he wrote on Facebook that if people don't stop posting about the Sandy Hook Elementary School shootings on the social network, then he would do the same thing in Los Angeles.

He also wrote that thousands of children die in other countries and that Americans needed to get over the shootings.

Saying that we should get over tragedies because people die all over all the time might be a pungent expression of opinion, but it isn't a threat, let alone a true threat. The other statement — that Kyle Bangayan would shoot up schools himself if people didn't stop posting about it — could potentially be a true threat, I suppose. California, following most federal courts, requires proof that a threat is objectively true — that is, that a reasonable person would interpret it as a sincere threat to do harm — even when the statute also requires subjective intent to be taken seriously. California's threat statute reads as follows:

Any person who willfully threatens to commit a crime which will result in death or great bodily injury to another person, with the specific intent that the statement, made verbally, in writing, or by means of an electronic communication device, is to be taken as a threat, even if there is no intent of actually carrying it out, which, on its face and under the circumstances in which it is made, is 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, and thereby causes that person reasonably to be in sustained fear for his or her own safety or for his or her immediate family's safety, shall be punished by imprisonment in the county jail not to exceed one year, or by imprisonment in the state prison.

The statute thus specifically incorporates both the subjective and objective tests. The DA's declination, if it is reported correctly, suggests that the problem is that no specific person has been threatened. I'm not sure that's true: if the state could prove that a local teacher or student was put in reasonable fear by the statement, and that Bangayan intended that result (even if he didn't intend to put that specific person in fear), then it appears to be that the elements would be met. The bigger problem for any prosecution is that the circumstances suggest that the threat wasn't intended to be taken seriously, and that it wasn't unequivocal, unconditional, immediate, and specific enough to convey that it should be taken seriously. It other words, however contemptible a statement it was, it wasn't a true threat. It certainly doesn't sound as if the threat lived up to Chief Beck's description of "very specific."

Whatever the DA's genuine reason for the declination, expect a California legislator to offer a bill making it a crime to threaten a school shooting, which, if passed, will make all the little children much safer.

And Kyle Bangayan? I suspect his parents will have serious difficulties getting their guns back, even though they didn't do anything, and even though Bangayan hasn't been charged with anything. He could sue — and he may well do so — but he'd have to show that the police didn't have probable cause to interpret his Facebook comment as a true threat. Given how low the bar is for probable cause, that's probably a long shot. Bangayan has learned that whether or not his words cross the line from protected speech into true threats, practically speaking it's very dangerous to make joking threats when the nation is in angry, fearful, emotional turmoil.

Last 5 posts by Ken White

44 Comments

44 Comments

  1. Chris R.  •  Dec 18, 2012 @9:02 am

    Young people say vile, contemptible things all the time. Unfortunately social media magnifies this as words spoken amongst friends are now spoken amongst 100s of "friends." As for the California legislature, or any legislature, making laws out of fear/anger always ends up well does it not?

  2. ShelbyC  •  Dec 18, 2012 @9:08 am

    Well, a well known legal blogger threatened to fuck a former governor with a cactus, and we have yet to see the police take any action.

  3. JRM  •  Dec 18, 2012 @9:10 am

    There's a pretty solid case on point – In re George T (2004) 33 Cal 4th 620. After a nearby school shooting, George wrote a poem that he gave to some classmates that said, "For I am Dark, Destructive, and Dangerous! [...] For I can be the next kid to bring guns to kill students at school. So parents watch your children cuz I'm BACK!!!"

    The Cal Supremes ruled that this was sufficiently equivocal to reverse George's conviction. Conditional threats (as by our friend Kyle) are problematic; some cases permit them to be used.

  4. AlphaCentauri  •  Dec 18, 2012 @9:36 am

    If a threat is conditioned on an event that no reasonable person actually expects to happen (everyone stops posting about Newtown), I don't see that one can see that as anything but black humor.

  5. Wondering  •  Dec 18, 2012 @10:46 am

    A similar threat was made by someone in Sedro Woolley, WA, and he's been arrested. His seems more specific — paraphrase: "If my gun rights are taken away because of CT shooting, I will get my shotgun and AK-47 and shoot up all the schools within 100 miles" — but IANAL, so I don't know if that meets the True Threat standard.

  6. John Rehwinkel  •  Dec 18, 2012 @10:59 am

    Yeah, on a rant about misleading Facebook ads, I was tempted to imply that I was going to abuse their system to make a point. Then I realized that could backfire on me, and instead used vague wording that didn't imply that I personally was going to do anything: "If FB is going to allow this sort of abuse, things are going to get pretty ugly."

  7. ShelbyC  •  Dec 18, 2012 @11:56 am

    @Wondering,

    Oh good lord. In what world could WA officials possibly think that they can prove beyond a reasonable doubt that such a comment was meant to be taken seriously. Charge the folks that arrested him, I say.

  8. Wondering  •  Dec 18, 2012 @12:23 pm

    Yeah, I don't know. As far as the arrest, if I remember the article I read correctly, a large part of the concern was that he posted the comment Friday, and when police went to talk to him about it, he'd disappeared and no one could find him so that instigated a search. He finally turned himself in Sunday, but in the meantime, some nearby schools seem to have been greatly concerned that there was a potential shooter on the loose.

    I think they're not even sure he has guns. Also, people who knew him are saying he was a kid who always was trying to get people riled up.

  9. David Aubke  •  Dec 18, 2012 @12:39 pm

    @ShelbyC,
    Without bothering to look up details on the story, it doesn't seem far fetched to me that someone would consider that a credible threat. Now certainly, he's not going to shoot up EVERY school in a 100-mile radius but that one element of hyperbole is not enough to discredit the threat. Personally, I could easily believe that someone who would say such a thing is fully capable of convincing himself the act is justifiable.

  10. ShelbyC  •  Dec 18, 2012 @1:12 pm

    @David Aubke. Maybe, maybe not. But fortunately, we don't lock people up because sombody speculates that a person is fully capable of convincing themselves that such an act is justifiable. Heck, we don't even lock people up for believing that such an act is justifiable. We lock them up if they are convicted of true threats, and this clearly wasn't that.

  11. David Aubke  •  Dec 18, 2012 @1:22 pm

    I interpreted Ken's post as saying that we do indeed lock people up because someone speculates that a person is serious. To me, that threat meets both the subjective and objective standards of the "True Threat" doctrine. That his was not a true threat is not at all clear to me. If I had to place odds, I'd say it was probably bluster (or a troll to make gun nuts look bad) but if I had a kid in a school in that area, I'll bet I'd be concerned.

  12. Myk  •  Dec 18, 2012 @2:47 pm

    "expect a California legislator to offer a bill making it a crime to threaten a school shooting, which, if passed, will make all the little children much safer." I'm not sure I agree with this; surely it would be better not to chill such speech? Criminalising threats in this way could have the effect of making people just act rather than threaten. But then, anything that helps avoid such tragedies is to be embraced.

  13. Ken  •  Dec 18, 2012 @3:00 pm

    I can't tell if you're being ironic about me being ironic.

  14. Geek Chick  •  Dec 18, 2012 @3:35 pm

    As time passes, it becomes more and more evident that the internet needs a recognized sarcasm font.

  15. eh  •  Dec 18, 2012 @3:53 pm

    Look at big man cop, phrasing everything in statutory lingo. "[V]ery specific threats and clear and present ability to carry out those threats." Boy he was sure planning on looking like a big-dick cowboy, I wonder if he had to cancel a new car order.

  16. James Pollock  •  Dec 18, 2012 @4:23 pm

    "As time passes, it becomes more and more evident that the internet needs a recognized sarcasm font."
    No, but perhaps HTML6 needs a sarcasm tag, which could be rendered into a sarcasm font. For people who don't get sarcasm at all, perhaps there should be a button on browser to block sarcasm, and any text tagged as sarcasm would be rendered as invisible.

  17. Myk  •  Dec 18, 2012 @5:42 pm

    as long as it's NOT Comic Sans. Maybe someone here could design a Popehat font – call it snarkasm, for example?

  18. Geek Chick  •  Dec 18, 2012 @5:51 pm

    Actually, it can be very amusing to surf the web whilst pretending Comic Sans is the sarcasm font…just think of any website you've seen that uses it and you'll get my point.

  19. repsac3  •  Dec 18, 2012 @6:52 pm

    Ironic to see this post the same day a blogger named Erik Loomis (liberal, though does it really matter?) has been hounded off twitter and had multiple people advocate for his firing as a college professor for tweeting that he'd like to see Wayne LaPierre's head on a pike (in reaction to the Newtown massacre, obviously.) Reports to the authorities have already resulted in his getting a visit from the state police. Hopefully, those in charge at the college where he teaches are made of stronger (and more free speech respecting) stuff than the politically correct crowd making the reports and taking a metephor uttered online and trying to use it to ruin his life.

    If all speech was pretty, it wouldn't need protection.

  20. Ken  •  Dec 18, 2012 @7:05 pm

    Yeah, I saw that one. There's basically nobody to like in that scenario. I will probably blog it.

  21. AlphaCentauri  •  Dec 18, 2012 @7:23 pm
  22. M.  •  Dec 18, 2012 @7:25 pm

    The problem, IMO anyway, is that government is frequently used to try to teach people manners and good taste. Aside from the fact that it's impossible to impose class, that's not the government's place (if they plan to have any credibility when waxing heroic about the Constitution, anyway).

    The good news is that having an acute case of verbal diarrhea frequently brings the pendulum of social Darwinism down on people like Mr. Bangayan. We just have to trust social Darwinism rather than tattling to the government.

    I'd like to think Mr. Bangayan has learned the value of just shutting the fuck up sometimes, but I think it's more likely that his righteously squalling about his rights like we are. Nothing was achieved here, really.

  23. M.  •  Dec 18, 2012 @7:31 pm

    *he's, you really need an edit function for those of us too dumb to catch all our errors even after multiple proofreadings

  24. MOG  •  Dec 18, 2012 @7:57 pm

    Calif. PC 422 requires a specific threat conveyed to a specific victim who takes it as a threat and is afraid for their (or their family's) imminent safety. We've had a few of these types of rather vague threat cases recently where the DA has rejected them. (Threat to shoot kids on their way to school who were unnamed and unaware of the threat.) I've been waiting for the Legislature to make a change … it's only a matter of time.

  25. Scott Jacobs  •  Dec 18, 2012 @8:28 pm

    Loomis did more than just say he wanted the guy's head on a pike.

    And look, we learned this lesson very well from the far left – if Sarah Palin and her "violent rhetoric" was to blame for the Rep Giffords shooting, then Loomis can just take his lumps…

    Though my favorite tweet of the Professor's was

    The right-wing intimidation campaign against me for saying the NRA was a terrorist organization continues. Will not succeed.

    Eh, not so much there, sparky…

  26. repsac3  •  Dec 18, 2012 @9:30 pm

    @Scott I've read enough of your twitter posts and commentary to know that you're not in favor of people calling the police or someone's boss because you're offended or disgusted by things they posted on twitter or a blog.

    Sure… Join a pc lynch mob on twitter… That's more speech. But calling the police, or trying to get someone fired?

  27. ShelbyC  •  Dec 18, 2012 @10:30 pm

    You mean the left and right are full of the same shit? Say it ain't so…

  28. piperTom  •  Dec 19, 2012 @6:34 am

    Kyle wrote "thousands of children die in other countries…". I want to indict him for poor writing skills. He could have written "hundreds of children are killed by American soldiers (or spies?) acting on orders of that sanctimonious hypocrite we call Prez." See how much more evocative that is?

    And he should not continue "Americans needed to get over the shootings." Americans need to get RABID about murder committed in their name. Ah, but those kids are far away and their names are hard to pronounce; nevermind.

  29. Joe Pullen  •  Dec 19, 2012 @6:54 am

    Apparently there is a "sarcasm" font. It can be found and downloaded for free here – http://www.a-zfonts.com/free_fonts/download/sarcastic.htm

  30. Rachel  •  Dec 19, 2012 @7:00 am

    Forget firearms – I'll bring a pony on the subway.
    Duck! Flying pony!
    http://www.theatlanticcities.com/commute/2012/12/its-not-cool-bring-ponies-berlins-subway/4206/

  31. Scott Jacobs  •  Dec 19, 2012 @10:35 am

    I'm sorry, Repcas, I guess you missed two years ago when the good professor likened metaphor to responsibility – in that case, Sarah Palin was at least partially to blame for the shooting of Rep Giffords.

    I'm sorry that Professor Loomis dislikes his own standards being used against him. Maybe he should find more reasonable standards he doesn't violate on a regular basis…

  32. mojo  •  Dec 19, 2012 @11:23 am

    'Nother one, up in Fairfield, apparently.

    And Babs "Ma'am" Boxer wants to "protect" schools by posting Nat. Guard troops.

    Gee, Babs – even at Kent State?

  33. repsac3  •  Dec 19, 2012 @11:27 am

    @Scott

    I don't believe I mentioned anyone's standards except yours (favorably, I might add–based on things you said in the midst of another situation where someone called local and federal authorities over online blog commentary, to say nothing of the Kimberlin thing, where folks tried to–and perhaps actually did–get people they disagreed with politically fired from their jobs, again based on online commentary) and what's objectively right and just. You want to revel in Loomis' getting screwed over because he was wrong about Palin two years earlier (& yeah, I agree he was), you go right ahead. But Scott, I'm talking about something else entirely…

  34. Scott Jacobs  •  Dec 19, 2012 @12:00 pm

    Gee, Babs – even at Kent State?

    Too soon, dude. Still too soon…

  35. Scott Jacobs  •  Dec 19, 2012 @12:02 pm

    And I want to see Loomis screwed so we can start getting some consistency in the standards.

    FFS, people are saying that appointing Tim Scott to the Senate is racist. I'm sick of the double standard, and if the only way to fight it is the application of those exact standards back at them, then so fucking be it.

  36. naught_for_naught  •  Dec 19, 2012 @12:03 pm

    [M]edia across the country — hungry for shooting-related news — picked up the story of a 24-year-old California man named Kyle Bangayan arrested on suspicion of making threats to schools on Facebook.

    It's not just the media is law enforcement as well, keenly aware of the political impact should a similar event occur in division and it can be intimated that they ignored the vaugest of clues. God save the Chief, were that to happen.

    What? The copy cat shooter was heard muttering under his breath, "Damn Kids," while standing in line at the Piggly Wiggly three Sundays before last? Good God! How could they have let this happen

    So cops throw discretion out the window, the press writes the story, and the frightened masses gobble it up.

    Although this young man didn't express himself very well, he is on to something. That is that Americans have become possessed by this notion that it is our right to live in a world free from anything frintening, anything offensive, and anything that threatens our point of view.

    In the process, it seems to me, we have lost our worldliness, our understanding that life is damn hard, and sometimes bad things happen to the best of us. Instead we have taken on a fashion of public grieving demands a ritual flailing about and the gushing frothy bromides for the wounded. Ironically, this grotesque pageantry for the bereaved results from our contemporary ethos that have the divine right to be free of anything offensive, fearful or challenging.

    Consequently, when some truly horrific occurs we are without the coping skills to manage, and like characters from Henry James, we struggle to hold onto our naivete at all costs. We want an easy solution to make the bad thing go away.

  37. naught_for_naught  •  Dec 19, 2012 @12:05 pm

    God I wish I could edit my posts.

  38. naught_for_naught  •  Dec 19, 2012 @12:14 pm

    [REVISED]

    It's not just the media, it's law enforcement as well. They are keenly aware of the political costs of having a similar event occur in division. "God Save the Chief" would be plaing in the background as the press combed through the minutia of everything the perp ever said or did –

    What? The copy cat shooter was heard muttering under his breath, "Damn Kids," while standing in line at the Piggly Wiggly three Sundays before last? Good God! How could they have let this happen

    So cops throw discretion out the window to save their skin, the press writes the story, and the frightened masses gobble it up.

    Although this young man didn't express himself very well, he is on to something. That is that Americans have become possessed by this notion that it is our right to live in a world free from anything frintening, anything offensive, and anything that threatens our point of view.

    In the process, it seems to me, we have lost our worldliness, our understanding that life is damn hard, and sometimes bad things happen to the best of us. Instead we have taken on a fashion of public grieving that employs a ritual flailing about and the gushing frothy bromides for the wounded. Ironically, this grotesque pageantry for the bereaved results from the contemporary ethos that have the divine right to be free of anything offensive, fearful or challenging. We haven't come to terms with the thing; therefore, we're not sure how to deal with it.

  39. repsac3  •  Dec 19, 2012 @12:20 pm

    "And I want to see Loomis screwed so we can start getting some consistency in the standards."

    His, or yours? (or maybe both?)

  40. naught_for_naught  •  Dec 19, 2012 @12:22 pm

    Oh, Christ. I give up trying to proof this. I'm creating a final revision on my desktop and then deleting the file without publishing. You can thank me later. Thank you for your indulgence.

  41. repsac3  •  Dec 19, 2012 @12:25 pm

    To add:

    Objectively, the standards don't change based on the people involved. Free speech, what does and does not constitute a threat (or a true threat), … The same, whatever one believes about the particular speech or the particular speaker.

  42. Scott Jacobs  •  Dec 19, 2012 @1:00 pm

    Loomis is merely "enjoying" what he himself set forth two years ago.

    I have no sympathy.

  43. darius404  •  Dec 19, 2012 @11:25 pm

    It's not about sympathy, it's about principle and consistency. If this is wrong only when it happens to people you don't like, it's not from a belief in rule of law, it's form a belief that laws should only benefit people you like. If so, that's fine, but don't expect us to take you seriously about this subject anymore.

  44. Michael Ejercito  •  Dec 20, 2012 @2:03 am

    And Babs "Ma'am" Boxer wants to "protect" schools by posting Nat. Guard troops.

    Gee, Babs – even at Kent State?

    Most National Guard soldiers do not shoot up kids at school.

    Then again, others advocated arming the teachers themselves, and we know that most teachers do not sexually abuse kids…