Lake Superior State University student Lucas Gerhard is facing terrorism charges after he posting picture with his new AR-15 on Snapchat with a taunting message for “snowflakes.” Another student objected that she felt threatened by the posting and ultimately the police arrested Gerhard for what was clearly a simple taunting message.

In August 2019, Gerhard posted the picture with the caption: “Takin this bad boy up, this outta make the snowflakes melt, aye? And I mean snowflakes as in snow.” It was a private chat room but someone showed the picture to another student who reportedly had had conflicts with Gerhard in the past. The family says that she was the only complaint. Moreover, guns are allowed on campus.

A former eagle scout, Gerhard found himself under arrest with a $250,000 bond and a 20-year potential sentence. He also has Type 1 Diabetes, requiring glucose levels monitored as well as prescription insulin.

I fail to see the basis for the criminal charge or how any prosecutor could have signed off on the charges. The current provision states

“Sec. 543m. (1) 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:

(a) Threatens to commit an act of terrorism and communicates the threat to any other person.

(b) Knowingly makes a false report of an act of terrorism and communicates the false report to any other

person, knowing the report is false.

(2) It is not a defense to a prosecution under this section that the defendant did not have the intent or

capability of committing the act of terrorism.

(3) A person who violates this section 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.”

Michigan lawmakers are discussing changing the law in light of the case with a new bill. The proposal would change the existing bar on a defense challenging the intent of the statement. The proposal states ““The statement would cause a reasonable person to conclude that it was meant to threaten the person who heard the statement, or another person close in physical proximity to the person who hear the statement, with violence or damage to substantial property.”

The greatest problem however is a complete breakdown of discretionary authority by police and prosecutors. Everyone seems to have failed at every stage in recognizing that this was not a criminal case. Notably, it does not appear that the school itself concluded that Gerhard was a threat. More importantly, nothing in the posting clearly states a threat.

What do you think?

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