People v. Gerhard
| Decision Date | 24 June 2021 |
| Docket Number | 354369 |
| Citation | 337 Mich.App. 680,976 N.W.2d 907 |
| Parties | PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Lucas Daniel GERHARD, Defendant-Appellant. |
| Court | Court of Appeal of Michigan — District of US |
Dana Nessel, Attorney General, Fadwa A. Hammoud, Solicitor General, Robert L. Stratton III, Prosecuting Attorney, and Jillian A. Sadler, Chief Assistant Prosecuting Attorney, for the people.
Outside Legal Counsel PLC, Hemlock (by Philip L. Ellison ) and Matthew E. Gronda, Saginaw, for defendant.
Before: Jansen, P.J., and M. J. Kelly and Ronayne Krause, JJ.
In this interlocutory appeal, defendant appeals by leave granted1 the order denying his motion to quash the charge of making a threat of terrorism, MCL 750.543m, on which he was bound over from the district court. Importantly, the issue is not whether defendant actually made a threat of terrorism, which would be a question for the trier of fact. Rather, the issue is whether, on these facts, defendant can be charged at all. The issue before us turns on whether a social-media post made by defendant can constitute a "true threat" for purposes of the statute. We affirm.
Defendant was a student at Lake Superior State University (LSSU), which allows students to bring weapons onto campus if the weapons are immediately registered and stored with the public-safety office. On August 22, 2019, defendant posted an image to his "story" on Snapchat—a social-media platform that allows users to send pictures, with or without text, that can be viewed by the user's registered "friends" for 24 hours before the image disappears. Defendant posted an image depicting an AR-15 semiautomatic rifle with an attached bayonet, along with text stating: Two LSSU students saw the post and alerted public safety. Both students expressed the belief that the word "snowflakes" referred to Democrats or liberals, which defendant later confirmed was accurate. One student felt that the post was inappropriate, although not threatening, but the second student testified that the text made her believe that defendant intended to use the gun and shoot liberal students. Defendant reported that he took the post down after he learned that it could be interpreted as a threat.
Defendant arrived on campus the following day and checked in his AR-15 rifle with public safety at approximately 8:00 a.m. Two police officers questioned defendant about the post in his dormitory room later that afternoon. Defendant confirmed that "bringing this bad boy up" referred to his bringing the AR-15 to campus and that "snowflakes" referred to Democrats. However, defendant stated that by "melt" he meant that he wanted to make the Democrats’ "minds melt" when they found out that he was bringing a gun to school. Defendant was arrested the following day and charged with making a threat of terrorism under MCL 750.543m.
At the preliminary examination, defense counsel argued that the charges were a violation of defendant's rights under the First Amendment, that the antiterrorism statute was vague and overbroad, and that the statute did not apply because defendant's Snapchat post was not a threat of terrorism. The district court disagreed, holding that MCL 750.543m had been interpreted by higher courts as constitutionally valid and that the question of whether defendant's statement constituted a true threat was a question of fact for the jury. The district court found probable cause to believe that the elements of MCL 750.543m had been met, and it bound defendant over for trial on the charge. Defendant moved to quash the charge, arguing that the First Amendment protected his speech and that the district court therefore abused its discretion by binding defendant over for trial. The circuit court disagreed and denied defendant's motion.
"A district court magistrate's decision to bind over a defendant and a trial court's decision on a motion to quash an information are reviewed for an abuse of discretion." People v. Dowdy , 489 Mich. 373, 379, 802 N.W.2d 239 (2011). A trial court abuses its discretion by choosing an outcome that falls outside the range of reasonable and principled outcomes. People v. Babcock , 469 Mich. 247, 269, 666 N.W.2d 231 (2003). "A trial court necessarily abuses its discretion when it makes an error of law." People v. Duncan , 494 Mich. 713, 723, 835 N.W.2d 399 (2013). "Whether conduct falls within the scope of a penal statute is a question of statutory interpretation," which we review de novo. People v. Flick , 487 Mich. 1, 8–9, 790 N.W.2d 295 (2010). "Questions involving the constitutionality of a statute are also reviewed de novo." People v. McKinley , 496 Mich. 410, 415, 852 N.W.2d 770 (2014).
Defendant first asserts that MCL 750.543m is unconstitutional. We disagree.
Defendant was charged with making a threat of terrorism under MCL 750.543m of the Michigan Anti-Terrorism Act, MCL 750.543a et seq. MCL 750.543m provides:
In turn, MCL 750.543z provides, "Notwithstanding any provision in this chapter, a prosecuting agency shall not prosecute any person or seize any property for conduct presumptively protected by the first amendment to the constitution of the United States in a manner that violates any constitutional provision."
Defendant properly recognizes that this Court has already held MCL 750.543m to be constitutional, albeit with some clarification. In People v. Osantowski , 274 Mich. App. 593, 601-605, 736 N.W.2d 289 (2007) ( Osantowski I ), rev'd in part on other grounds 481 Mich. 103, 748 N.W.2d 799 (2008), this Court explained that the Legislature's use of the word "threat" was meant as a reference to what the United States Supreme Court has defined as "true threats," which are not constitutionally protected speech. A true threat "encompass[es] those statements where the speaker means to communicate a serious expression of an intent to commit an act of unlawful violence to a particular individual or group of individuals." Virginia v. Black , 538 U.S. 343, 359, 123 S. Ct. 1536, 155 L. Ed. 2d 535 (2003). This interpretation was "further bolstered by the existence of MCL 750.543z," which prohibits prosecution for presumptively constitutional speech. Osantowski I , 274 Mich. App. at 603-604, 736 N.W.2d 289.
Defendant contends that Osantowski I was wrongly decided and an exercise in judicial legislation. We disagree. The First Amendment, applicable to the states through the Fourteenth Amendment, provides that the government "shall make no law ... abridging the freedom of speech[.]" U.S. Const., Am. I. See also Black , 538 U.S. at 358, 123 S.Ct. 1536. "If there is a bedrock principle underlying the First Amendment, it is that that the government may not prohibit the expression of an idea simply because society finds the idea itself offensive or disagreeable." Texas v. Johnson , 491 U.S. 397, 414, 109 S. Ct. 2533, 105 L. Ed. 2d 342 (1989). Therefore, statutes that criminalize speech "must be interpreted with the commands of the First Amendment clearly in mind." Watts v. United States , 394 U.S. 705, 707, 89 S. Ct. 1399, 22 L. Ed. 2d 664 (1969). "The protections afforded by the First Amendment, however, are not absolute, and we have long recognized that the government may regulate certain categories of expression consistent with the Constitution." Black , 538 U.S. at 358, 123 S.Ct. 1536. One of those categories is "true threats." Id. at 359-360, 123 S. Ct. 1536. Furthermore, "a presumption exists that a statute is constitutionally sound, and this Court will construe it as such unless its unconstitutionality is clearly apparent." People v. Newton , 257 Mich. App. 61, 65, 665 N.W.2d 504 (2003) (quotation marks and citation omitted).
We decline to revisit Osantowski I . See MCR 7.215(J). In any event, we are unpersuaded that doing so would be warranted. Our clarification in Osantowski I , 274 Mich. App. at 603, 736 N.W.2d 289, that MCL 750.543m applies only to "true threats" was a reasonable and supported interpretation of the existing language of the statute that rendered it consistent with the First Amendment and with MCL 750.543z. Further, because the definition of "act of terrorism" under MCL 750.543b(a) and the requirements of MCL 750.543m encompass the elements identified in the definition of a "true threat" expressed in Black , 538 U.S. at 359-360, 123 S.Ct. 1536, our interpretation in Osantowski I rendered MCL 750.543m constitutionally valid.
Defendant next argues that the First Amendment applies to this matter. We agree, in part. As discussed, the First Amendment is...
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