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What Are The Penalties For Making School Shooting Threats In Michigan (Even If False)?

by | Dec 30, 2021 | Criminal Law, Juvenile Justice |

 

On November 30, 2021, a mass shooting occurred at Oxford High School in Oakland County, Michigan where four students were killed and seven people were injured.  Law enforcement arrested and charged 15-year old high school sophomore Ethan Crumbley as a suspect in the shooting.  The Oakland County Prosecutor’s Office charged Mr. Crumbley with one count of terrorism causing death, four counts of first-degree murder, seven counts of assault with intent to murder, and twelve counts of possession of a firearm in the commission of a felony.

One of the most disturbing side effects of this tragic incident is the proliferation of copycat threats made at other schools across the state and nation.  Students have realized that the mere threat of a school shooting will often cause officials to cancel school and undertake a thorough investigation to ensure the danger is neutralized before reopening.  As a result, there has been an unfortunate trend of some individuals creating or communicating threats against the school by sharing with other students, posting on the internet, or reporting them directly to the administration.  Often there is no intent or plan to carry out violence whatsoever, but rather the sole purpose was to get a bonus day off of school.

Unfortunately for these students, the chances of getting away with these false threats are very slim.  Messages posted on the internet or through social media can often be traced back to their source by looking at IP addresses or following internet histories, even if the posting was supposedly from an anonymous source or fake social media account.  Other students interviews by law enforcement will report where they saw or heard the false threat and it can often flow back to a common origin.  Once the suspect is identified and charged, he or she is often surprised at just how serious the penalties for make a false threat are.  It isn’t just a few days in detention or a brief suspension.  Making threats (whether real or false) are serious criminal felony offenses that can result in jail or prison.

 

MAKING A TERRORIST THREAT OR MAKING A FALSE REPORT OF TERRORISM

All state terrorist-type crimes are codified under Michigan’s Anti-Terrorism Act, Public Act 113 of 2002 passed shortly after the wake of the 9/11 attacks against the United States. “A person is guilty of making a terrorist threat or of making a false report of terrorism if the person does EITHER of the following:”

  • “Threatens to commit an act of terrorism and communicates the threat to any other person.” MCL 750.543m(1)(a).
  • “Knowingly makes a false report of an act of terrorism and communicates the false report to any other person, knowing the report is false.” MCL 750.543m(1)(b).

An “act of terrorism” means a willful and deliberate act that is ALL of the following:

  • “An act that would be a violent felony under the laws of this state, whether or not committed in this state.” MCL 750.543b(a)(i).  “Violent felony” means “a felony in which an element is the use, attempted use, or threatened use of physical force against an individual, or the use, attempted use, or threatened use of a harmful biological substance, a harmful biological device, a harmful chemical substance, a harmful chemical device, a harmful radioactive substance, a harmful radioactive device, an explosive device, or an incendiary device.”  MCL 750.543b(h).
  • “An act that the person knows or has reason to know is dangerous to human life.” MCL 750.543b(a)(ii).  “Dangerous to human life” means “that which causes a substantial likelihood of death or serious injury…”.  MCL 750.543b(b).
  • “An act that 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.” MCL 750.543b(a)(iii).

“It is not a defense to a prosecution [for making a terrorist threat or of making a false report of terrorism] that the defendant did not have the intent or capability of committing the act of terrorism.”  MCL 750.543m(2).  Even if the defendant lacked any planning or organization whatsoever, or did not possess any instruments to carry out a terrorist threat, or only made the threat for sole purpose of getting a day off of school, it still does not change or negate criminal liability for this offense.

To prove the charge of making a terrorist threat, the prosecutor must prove all of the following elements beyond a reasonable doubt (Michigan Criminal Jury Instruction 38.4):

  • First, that the defendant communicated with specified recipients by speech, writing, gestures, or conduct.
  • Second, that during the course of the communication, the defendant threatened to commit an act of terrorism. A threat does not have to be stated in any particular terms but must express a warning of danger or harm. Further, it must have been a true threat, and not have been something like idle talk, or a statement made in jest, or a political comment. It must have been made under circumstances where a reasonable person would think that others may take the threat seriously as expressing an intent to inflict harm or damage.  It does not matter whether the defendant actually could commit the felony or actually intended to commit the felony, but only whether the defendant threatened to commit the felony as an act of terrorism.

To prove the charge of making a false report of terrorism, the prosecutor must prove all of the following elements beyond a reasonable doubt (Michigan Criminal Jury Instruction 38.4a):

  • First, that the defendant communicated with specified recipients by speech, writing, gestures, or conduct.
  • Second, that during the course of the communication, the defendant reported that an act of terrorism had occurred, was occurring, or would occur.
  • Third, that the report was false.
  • Fourth, that the defendant knew that it was false.

In People v Osantowski, 274 Mich App 593, 603; 736 NW2d 289 (2007), rev’d in part on other grounds 481 Mich 103 (2008), the Michigan Court of Appeals held the defendant’s threat of terrorism at his high school communicated to one person in Washington State in an online chat room was sufficient evidence for a threat or false report of terrorism conviction.  A threat communicated to only one person can nevertheless be a threat of violence against a group of people.  Id at 612-613.  However, the Court of Appeals made it clear that the statue prohibits “only ‘true threats’, as they encompass the communication of a serious expression of an intent to commit an act of unlawful violence to a particular individual or group of individuals”.  Id at 603.  This requirement enables the Michigan Ant-Terrorism statute to survive constitutional challenges.  Since the statute requires “the existence of an intent to intimidate or coerce, they extend beyond the type of speech or expressive conduct that is afforded protection by the First Amendment.”  Id at 603.

“A person who [makes a terrorist threat or makes a false report of terrorism] is guilty of a felony punishable by imprisonment for not more than 20 years or a fine of not more than $20,000.00, or both.”  MCL 750.543m(3).

 

USING A COMPUTER TO COMMIT A CRIME

There are also additional criminal penalties for using a computer, smartphone, tablet or internet-accessible device for making a terrorist threat or of making a false report of terrorism.  “A person shall not use a computer program, computer, computer system, or computer network to commit, attempt to commit, conspire to commit, or solicit another person to commit a crime”, including but not limited to making a terrorist threat or of making a false report of terrorism.  MCL 752.796(1).  A person can be charged and convicted of using a computer to commit a crime and any other crime flowing from the criminal act.  MCL 752.796(2).  This criminal penalty applies “regardless of whether the person is convicted of committing, attempting to commit, conspiring to commit, or soliciting another person to commit the underlying offense.”  MCL 752.796(3).

If the underlying crime is a felony punishable by a maximum term of imprisonment of 20 years or more or for life (in this case, making a terrorist threat or of making a false report of terrorism contrary to MCL 750.543m), then the person who uses a computer to commit this crime is guilty of a felony punishable by imprisonment for not more than 20 years or a fine of not more than $20,000.00, or both.  MCL 752.797(3)(f).   In addition, the defendant can be ordered to reimburse the government for expenses incurred in relation to committing this crime.  MCL 769.1f.  Finally, “the court may order that a term of imprisonment imposed for using a computer to commit a crime be served CONSECUTIVELY to any term of imprisonment imposed for conviction of the underlying offense.”  MCL 752.797(4).  This means an individual can be ordered to serve 20 years for the false terrorist report in prison and 20 years for using a computer to commit a crime in prison for a total of 40 YEARS IN PRISON.

 

POSSIBLE PENALTIES IF TRIED AS A JUVENILE

Since most individuals who are charged with a crime are students under 18 years old, they are typically subject to the jurisdiction of the family division of the circuit court.  This means that the offender will be adjudicated in the juvenile court and, if found guilty or pleads guilty or no contest, will be punished accordingly.  A juvenile found to come under the jurisdiction of the family division of the circuit court can be subject to an order of disposition that includes any of the following possible provisions:

  • “Warn the juvenile or the juvenile’s parents, guardian, or custodian and dismiss the petition.” MCL 712A.18(1)(a).
  • “Place the juvenile on probation, or under supervision in the juvenile’s own home or in the home of an adult who is related to the juvenile.” MCL 712A.18(1)(b).  “The court shall order the terms and conditions of probation or supervision, including reasonable rules for the conduct of the parents, guardian, or custodian, if any, as the court determines necessary for the physical, mental, or moral well-being and behavior of the juvenile.”  Id.
  • “[P]lace the juvenile in or commit the juvenile to a private institution or agency approved or licensed by the department’s division of child welfare licensing for the care of juveniles of similar age, sex, and characteristics.” MCL 712A.18(1)(d).
  • “[C]ommit the juvenile to a public institution, county facility, institution operated as an agency of the court or county, or agency authorized by law to receive juveniles of similar age, sex, and characteristics.” MCL 712A.18(1)(e).
  • “Order the juvenile to engage in community service.” MCL 712A.18(1)(i).
  • “[O]rder the juvenile to pay a civil fine in the amount of the civil or penal fine provided by the ordinance or law (in this case, up to $20,000.00). MCL 712A.18(1)(j).
  • “[P]lace the juvenile in and order the juvenile to complete satisfactorily a program of training in a juvenile boot camp.” MCL 712A.18(1)(n).

Juvenile proceedings are not considered criminal proceedings and the juvenile would not have a criminal felony conviction in the same sense as an adult.  However, due to the seriousness of making terrorist threats, the prosecutor may elect to pursue designation proceedings to try the juvenile in the same manner as an adult.

 

JUVENILE DESIGNATION PROCEEDINGS FOR ADULT CONVICTION AND PENALTIES

A designated proceeding is “a proceeding in which the prosecuting attorney has designated, or has requested the [Family Division] to designate, the case for trial in the [Family Division] in the same manner as an adult.”  MCR 3.903(A)(6).  Designated proceedings “are criminal proceedings and must afford all procedural protections and guarantees to which the juvenile would be entitled if being tried for the offense in a court of general criminal jurisdiction.” MCL 712A.2d(7).  A guilty plea, no contest plea, or a guilty verdict by judge or jury will result in the entry of an adult conviction, which has the same effect and liabilities as if it had been obtained in adult criminal court.  This means the juvenile could be sentenced to state prison.

Since the crime of making a terrorist threat or of making a false report of terrorism is not a “specified juvenile violation” eligible for automatic designation, the prosecutor must make a request to the judge to order the case into court-designated proceedings.  “The court may designate the case following a hearing if it determines that the best interests of the juvenile and the public would be served by the juvenile being tried in the same manner as an adult.”  MCL 712A.2d(2).

The designation hearing must commence within 14 days of the arraignment, unless adjourned for good cause.  MCR 3.952(A).  “The prosecuting attorney has the burden of proving by a preponderance of the evidence that the best interests of the juvenile and the public would be served by designation.”  MCR 3.952(C)(2).  “In determining whether to designate the case for trial in the same manner as an adult, the court must consider all the following factors, giving greater weight to the seriousness of the alleged offense and the juvenile’s prior delinquency record than to the other factors:”

  • “The seriousness of the alleged offense in terms of community protection, including, but not limited to, the existence of any aggravating factors recognized by the sentencing guidelines, the use of a firearm or other dangerous weapon, and the effect on any victim.” MCR 3.952(C)(3)(a).
  • “The culpability of the juvenile in committing the alleged offense, including, but not limited to, the level of the juvenile’s participation in planning and carrying out the offense and the existence of any aggravating or mitigating factors recognized by the sentencing guidelines.” MCR 3.952(C)(3)(b).
  • “The juvenile’s prior record of delinquency, including, but not limited to, any record of detention, any police record, any school record, or any other evidence indicating prior delinquent behavior.” MCR 3.952(C)(3)(c).
  • “The juvenile’s programming history, including, but not limited to, the juvenile’s past willingness to participate meaningfully in available programming.” MCR 3.952(C)(3)(d).
  • “The adequacy of the punishment or programming available in the juvenile justice system.”  MCR 3.952(C)(3)(e).
  • “The dispositional options available for the juvenile.” MCR 3.952(C)(3)(f).

If the court determines that it is in the best interests of the juvenile and the public that the juvenile be tried in the same manner as an adult in the family division of the circuit court, the court must schedule a preliminary examination within 14 days if the juvenile is charged with a felony to determine if there is probable cause for the case to move forward.  MCR 3.952(D)(1).  If the juvenile is ultimately convicted of a crime in a designated proceeding, the court has the option to enter an order of disposition to punish the offender as a juvenile (e.g. probation or house arrest with a legal custodian, placement in juvenile detention center) or, “if the court determines that the best interests of the public would be served, impose any sentence upon the juvenile that could be imposed upon an adult convicted of the offense for which the juvenile was convicted.”  MCL 712A.18(1)(o).  This means a juvenile can be ordered to serve 20 years for the false terrorist report in prison and 20 years for using a computer to commit a crime in prison for a total of 40 YEARS IN PRISON under consecutive sentencing.

 

THE BOTTOM LINE

In light of current events in Michigan after the Oxford High School shooting, prosecutors and judges will take any threats to engage in violence against schools, whether real or false, very seriously and will pursue punishments up to the fullest extent of the law.  Anyone that is accused of a crime has the absolute right to have a skilled criminal defense lawyer to aggressively defend them.  When you are looking at the possibility of years in state prison, you cannot settle for any less than the best legal representation in your corner.  A good lawyer will challenge the evidence against you, investigate all possible defenses, and hold the prosecutor to their burden of proving guilt beyond all reasonable doubt.

If you or a loved one is charged with any crime and need legal representation, then do not hesitate to contact the experienced attorneys at Kershaw, Vititoe & Jedinak PLC for assistance today.

 

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