In the months leading up to this tragic school shooting in a quiet Texas town, the gunman apparently made repeated threats on Yubo. Unless you’re between 13 and 25, you’ve probably never heard of this social media platform. Yubo, which some have described as Tinder for teens, has about 60 million users, almost all of whom are in this age group. The shooter threatened some specific people, and the shooter also threatened to murder elementary school students.
Such malicious content is par for the course on Yubo. According to Common Sense Media, an advocacy group, “it was easy to find substance use, profanity, racial slurs, and scantily clad people.” Additionally, the livestream feature routinely showed kids “smoking marijuana, using racial slurs, and talking about graphic sex.” It’s almost impossible to moderate such content. The poster only has a profile photo and username. Additionally, as we all know by now, anyone can pose as anyone online.
Law enforcement may not be able to step in and take immediate action against terroristic online threats. But law enforcement can definitely use these posts as evidence in a subsequent prosecution. Terroristic threat is a serious felony in Georgia. So is committing a terroristic act. However, these charges are difficult to prove in court. A Marietta criminal defense attorney has several opportunities to successfully resolve them.
Aggressive prosecutors always look for ways to enhance misdemeanors to felonies. Come election time, a high number of felony convictions looks a lot better on campaign materials than a high number of misdemeanor convictions. Terroristic act is a very easy way to upgrade assault or disturbing the peace charges to felony charges.
What the State Must Prove
According to O.G.A. § 16-11-37, the basic elements of a terroristic act, which is usually an assault enhancement, are:
- Using “burning or flaming symbol or flambeau,” such as a flaming cross, “with the intent to terrorize another or another’s household,”
- Shooting a weapon or throwing something at a bus, taxi, or other conveyance which is in operation at the time, or
- Releasing an actual or fake hazardous substance “for the purpose of terrorizing another or of causing the evacuation of a building, place of assembly, or facility of public transportation or otherwise causing serious public inconvenience or in reckless disregard of the risk of causing such terror or inconvenience.”
Since there are three possible terrorist act scenarios, let’s look at three examples. That process seems to make sense.
Public burnings are rather common. Back in the 1950s, people burned books, records, and other media they considered morally degenerate. In the 1970s, it was draft cards. In the 1980s, it was American flags. Burning controversial political figures and other people in effigy is common as well. These acts usually aren’t terroristic acts in Georgia. These individuals intend to make a statement, but they normally don’t intend to terrorize anyone. These acts may violate other laws, such as municipal codes against public burning.
The second bullet only applies if the terroristic act occurs in the course of illegal activity. Normally, if the act causes property damage, prosecutors press felony terroristic act charges instead of misdemeanor vandalism charges.
Prosecutors don’t file many terroristic act charges. Most of them involve the third bullet, which is releasing a dangerous or dangerous substance (e.g. sending a letter bomb).
Lack of evidence is usually the most effective defense to terroristic act charges. By law, “the uncorroborated testimony of the party to whom the threat is communicated” cannot support a conviction.
Assume officers respond to a domestic disturbance call. Rachel says her ex-boyfriend tried to scare her by leaving a burning object outside her front door.
Rachel’s statement, even if she holds up under questioning from a Marietta criminal defense attorney, cannot convict her ex-boyfriend. If Rachel’s roommate verifies her story, that’s different. If Rachel’s Ring camera recorded the incident, that might be different as well. Usually, a camera is a witness for such purposes, especially if it’s an automatic camera.
Back to the Uvalde/Yubo discussion for a moment. Many school counselors are concerned that widespread bullying and graphic content on social media normalizes such posts. So, when a kid posts a terroristic threat, that’s not unusual. It’s even okay if the poster ads a “jk” or a “lol” to the end of the post. Vigorous terroristic threat prosecutions are one way to change this culture, at least according to many prosecutors.
What the State Must Prove
A terroristic threat in Georgia is a threat “to commit any crime of violence, to release any hazardous substance, as such term is defined in Code Section 12-8-92, or to burn or damage property with the purpose of terrorizing another or of causing the evacuation of a building, place of assembly, or facility of public transportation.” Note that a threat alone is sufficient. It doesn’t have to be a credible threat. That seemingly minor provision makes it much easier to prosecute online terroristic threats in Georgia.
As for the mental element, the defendant must intend to cause “serious public inconvenience” or demonstrate “reckless disregard of the risk of causing such terror or inconvenience.” That’s a rather low requirement which probably includes posting without thinking.
Lack of evidence is also an effective defense to terroristic threat charges. However, this time, the matters are procedural as opposed to substantive.
The law regarding online investigations is still in flux. Several years ago, after another mass shooting, a cell phone provider refused to turn over the alleged shooter’s password to law enforcement. The case seemed headed for a courtroom showdown. But before a hearing took place, the law enforcement agency hired a hacker who broke the code.
Random usernames don’t hold up in court. Usually, the state must prove that the post came from a certain email address, and the defendant was the only person with access to this account. If the state cannot prove these things, the judge will probably exclude the post. No post means no case.
Terroristic threat prosecutions are on the rise, but these claims are difficult to prove in court, especially if the defendant published the threat online. For a free consultation with an experienced criminal defense attorney in Marietta, contact the Phillips Law Firm, LLC. The sooner you reach out to us, the sooner we start working for you.