The state of Florida’s 3rd District Court of Appeal held that a student had not committed assault on a school administrator in violation of Florida law despite the fact that he said, “You’re going to die today, bitch; something is going to happen to you after school; you watch.” The court held that the student’s comments and actions did not meet the third prong of the law’s requirement: (1) an intentional, unlawful threat; (2) an apparent ability to carry out the threat; and (3) creation of a well-founded fear that the violence is imminent.

Section 784.01(1) of Florida Statutes states:

An assault is an intentional, unlawful threat by word or act to do violence to the person of another, coupled with an apparent ability to do so, and doing some act which creates a well-founded fear in such other person that such violence is imminent.

In its holding, the court states, “the record is devoid of is devoid of any evidence to show H.W. (the defendant) did any act to create a well-founded fear by Jones (the school administrator) that violence was imminent.

The facts of the case are as follows. Jones, an administrative assistant at Parkway Middle School called H.W. up to her office for a disciplinary infraction. Based on that infraction, Jones informed H.W. that he was being suspended for three days. According to court documents, when H.W. was informed of the school suspension, he became agitated and verbally abusive. Jones testified that H.W. began cussing at her, calling her a “bitch,” shouted “f_ _ _ you,” and began pacing back and forth in her office with his shirt raised. H.W. ended up leaving Jones’ office but returned in less than an hour. A school security officer, Hector Martinez, was stationed outside Jones’ door when H.W. returned.

Upon reentering her office, H.W. again began making threats. He told her he was going to ensure she got “put to sleep.” Officer Martinez testified that he heard H.W. tell Jones “You’re going to die today, bitch; something is going to happen to you after school; you watch.”

When asked if she was afraid at the time, J0nes testified, “In a way, I was afraid because…H.W. is a violent individual.” Jones further testified she “thought” H.W. would have hit her and that was why she had called to have Officer Martinez present.

The court held that H.W.’s threats did not create a well-founded fear that H.W. would do something to Jones at that time. When Jones called for Officer Martinez to come into her office, she “did not raise her voice to shout for help, but instead calmly called for Officer Martinez” who was sitting outside her door. The court concluded that the fact that Jones thought that H.W. might reach across the desk and hit her and H.W.’s threat that something would happen “that day” were insufficient to show violence was imminent.