With judges divided about what it means to post threats, a state appeals court upheld the detention of a Duval County public-school student who had a “kill list” of teachers.
A panel of the 5th District Court of Appeal, in a 2-1 decision Monday, rejected arguments that the state did not have probable cause that the student violated a law that makes it illegal to “send, post or transmit” threats.
The student, identified by the initials N.H. because she is a minor, had a piece of paper on her school desk that a teacher saw. The paper threatened to kill the teacher and another teacher. The student’s mother later told authorities that she had found a journal that included plans to kill people.
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The student was arrested, with a judge finding probable cause for the charge and releasing her to “intensive home detention,” according to Monday’s ruling.
In challenging the judge’s order, an attorney for the student argued that she did not send, post or transmit the threat and, as a result, probable cause did not exist. The appeals court focused on whether she posted the threat by leaving it on her desk in view of the teacher.
Judge Joe Boatwright, in a majority opinion joined by Judge James Edwards, agreed with a prosecutor’s position that “because N.H. ‘publicly displayed’ the kill list on top of her desk at school, she had ‘posted’ it within the meaning of the statute.”
“There is no indication that N.H. tried to hide the written threat that she placed on her desk; rather, she placed the kill list on her desk, in plain view in a public setting where her teacher was able to view it,” Boatwright wrote in the 12-page opinion. “Therefore, N.H.’s acts can be characterized as the posting of a writing that threatens to kill another person in any manner in which it may be viewed by another person.”
But Judge John MacIver disputed the majority’s position that N.H. had posted the threat and wrote that the state “has not criminalized bad thoughts.”
“The text of the statute does not prohibit the writing alone, but rather the sending, transmitting, or posting of the writing,” MacIver wrote. “Imagination and fantasy, in writing, is recognized as just that. That the fantasy may evince something more provides a strong incentive for some form of familial and social intervention, but it is not criminalized. What the state has criminalized is the making of threats. The difference between a disturbing thought that has been reduced to writing and the making of a threat is the existence of a communicative act — a sending, transmitting, or posting. That petitioner (N.H.) was caught at her desk with the writing is not the same as petitioner taking any step to communicate the thoughts as a threat.”
The ruling did not provide details about the school N.H. attended, her age or when the teacher saw the threat.
The decision came on the same day that three children and three employees were killed by an adult shooter at a private school in Nashville.
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