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Posted on July 11, 2013, Mark Burnham Gamer Justin Carter’s Attorney Takes Us Inside Contentious Arrest

This article was researched and written by Mark Burnham, Ross Lincoln and Phil Hornshaw. Follow them on Twitter: @MarkBurnham | @RossALincoln | @PhilHornshaw

UPDATE, 9:06 a.m. Sept. 11: Court documents provided by the defense have shed new light on the events surrounding Carter’s arrest in February and his time in jail in through March. We’ve updated the timeline and corrected parts of this story, which erroneously state that New Braunfels police interviewed Carter at his home and arrested him there in March.

UPDATE, 2:39 p.m. July 12: We’ve added a timeline of events to help clarify what took place in the case, starting with Carter’s Facebook comment and ending with his release from jail. Dates found on the timeline are taken from available court documents.

UPDATE, 1:17 p.m. July 12: Justin Carter is “in high spirits” following his release, according to his attorney, Don Flanary. Read the full report.

UPDATE, 11:51 a.m. July 12: Game Front has obtained court documents that clarify and correct a number of elements previously listed in this story, including dates of events such as Justin Carter’s arrest, the search of his domicile and its location, and more. The story below is being updated to reflect the most up-to-date and accurate information.

Almost from the moment the first pinball cabinets were installed in some smokey arcade, gamers have been accustomed to venting their opinions, frustrations and competitive taunts with little restraint. That group has never been afraid to say that someone is terrible at a game, to insult them for complaining, or to tell them their mom is [insult]. That tendency only became more pronounced as competitive gaming moved online and gamers could take full advantage of the ability to connect and share information of any kind on the Internet. Forums, social networks and multiplayer servers have all emerged as vast repositories where gamers can gather, virtually, and verbally tear each other apart without any concern as to who was watching.

Fast-forward to 2013: you’ve probably heard of Justin Carter. The 19-year-old League of Legends player was arrested earlier this year and charged with making a “terroristic threat” after a post he wrote on Facebook during a gaming-related argument was reported to Texas law enforcement authorities. If convicted, Carter could face two to 10 years in prison, and a fine of up to $100,000.

With his family unable to afford the $50,000 necessary to get him out on bail, Carter was in jail for almost four months.

He was released today after “an anonymous good Samaritan” reportedly donated $500,000 to his family to pay the bail.

The case highlights the unsightly collision of competitive gaming culture, social media, the war of terror, freedom of speech, personal data collection and even the growing militarization of law enforcement. The case (and others just like it) have broad implications for the way Americans communicate with each other online, not only as gamers but as general Internet users.

Of course, law enforcement agencies have a major interest in investigating what they perceive as serious threats of violence. No one wants another Sandy Hook incident, so perhaps new, more aggressive methods of surveillance are required to stop these tragedies before they happen. But where is the line? At what point does trash talk become a crime, punishable with a jail sentence up to 10 years? Is this a wake up call for toxic gaming communities?

To make sense of it, Game Front spoke with Justin Carter’s defense attorneys, Donald Flanary and Chad Van Brunt, both of whom took Carter’s case pro bono on July 1. They walked us through the original incident, and Carter’s subsequent arrest.

The Facebook Comment

Back in February 2013, Carter had been playing League of Legends, as he often did. Described by Flanary as an aspiring professional gamer, Carter commonly played League of Legends “eight to 10 hours a day.” After the LoL session, Carter became embroiled in an exchange on Facebook, with “people he may or may not know from [Carter's] online community.”

The exchange did not seem friendly. According to Flanary, someone in the thread reportedly called Carter “effing crazy.” His response was “sarcastic and satirical,” Flanary said. According to the arrest warrant in the case, the comment Carter posted read:

“I’m f–ked in the head alright, I think Ima SHOOT UP A KINDERGARTEN

“AND WATCH THE BLOOD OF THE INNOCENT RAIN DOWN

“AND EAT THE BEATING HEART OF ONE OF THEM.”

This is where a Canadian woman, who reported Carter’s comments to authorities, got involved. According to Flanary, she responded to Carter’s remark by saying: “I hope you f–king burn in hell you f–king prick.” Court documents show she took a screenshot of the conversation and reported it to the Canadian Crime Stopper Association. The organization is a “civilian, non profit, charitable organization that brings together in a triparte relationship, the police services of a community, the media and the community in the fight against crime,” according to its website, and offers up to $2,000 for tips that lead to arrests.

How They Identified, Arrested and Charged Him

TIMELINE OF JUSTIN CARTER’S ARREST



● Feb. 13 – Justin Carter makes Facebook post

● Feb. 14 – Post reported to Canadian Crime Stopper Association

● Feb. 14 – CCSA sends information to Austin Police Department

● Feb. 14 – APD’s Austin Regional Intelligence Center investigates

● Feb. 14 – APD obtains arrest warrant for Carter; he’s interred in the Travis County jail; bond is set at $250,000

● March 6 – APD transfers info to New Braunfels Police

● March 19 – NBPD interviews Carter in jail; Carter allegedly admits creating Facebook comment

● March 20 – NBPD transfers Carter to Comal County Jail; searches his home, seizes his computer gear; bond is set at $250,000

● April 10 – Carter’s bond increased to $500,000

● April 10~July 1 – Carter is reportedly beaten by Comal County Jail inmates, placed under suicide watch

● July 1 – Attorney Ivan Friedman represents Carter; files motion to suppress Carter’s March 19 statement to NBPD

● July 1 – Attorney Donald Flanary replaces Friedman

● July 3 – Defense files writ of habeas corpus to reduce bond; hearing set for July 16

● July 11 – Anonymous donor gives $500,000 to Carter’s parents; Carter released on bond

● July 11 – Next pre-trial hearing set for 9 a.m. CDT, July 12

● July 12 – Pre-trial hearing rescheduled; reset for 1:30 p.m. CDT, Sept. 23

Flanary said the screenshot was then sent to the Austin Regional Intelligence Center (ARIC) in Texas, which began an investigation into Carter’s identity.

The ARIC is an institution formed by the cooperation of three Texas counties, according to the organization’s website. The website suggests it’s an information-sharing entity meant to allow several other agencies to work together, including the Austin Police Department. Similar efforts have been made at the federal level to allow various law enforcement agencies to trade information quickly and easily in order to prevent terrorist attacks.

The official description of the ARIC reads:

“The Austin Regional Intelligence Center (ARIC) is a collaborative effort of ten Public Safety Agencies in Hays, Travis and Williamson counties. ARIC partner agencies will work together to provide resources, expertise and/or information to the center. ARIC focuses on regional public safety data analysis. The mission of ARIC is to maximize the ability to detect, prevent, apprehend, and respond to criminal and terrorist activity. “ARIC analyzes information and disseminate actionable intelligence used to address an all-crimes perspective. ARIC serves public safety agencies in Hays, Travis and Williamson Counties. Its initial capability was to consolidate law enforcement data/records for analysis across multiple law enforcement jurisdictions. ARIC exceeds applicable state and federal regulations regarding privacy and may provide actionable intelligence to detect, prevent or interrupt: “Serial Criminal conduct

“Organized Crime

“Terrorist Activity”

Flanary said he was told the ARIC received information about the Facebook thread and the possibility of a threat of a school shooting, and proceeded to investigate, although according to Carter’s lawyers, the ARIC wasn’t sure where Carter was, where he lived, or from where the alleged threat had been made. According to the APD arrest warrant, police compared a photo from Carter’s Facebook profile to a Texas driver license that included the same image, and then used a records search to find an address.

Flanary said the address the police found was Carter’s former home in Austin, Texas, where he lived while attending high school. According to the arrest warrant, that residence was very close to an elementary school — approximately 100 yards away.

At the time of his arrest by Austin police, however, Carter lived in New Braunfels, a town located between Austin and San Antonio, Texas, in Comal County. He shared a place with a co-worker, a later arrest warrant states, which was located within a half mile of an elementary school.

The defense would later file motions alleging the police couldn’t have used a driver license to determine if they had the right Justin Carter because, as the defense states, Carter has never had a Texas license. Other motions would contend the information in Carter’s indictment was an inaccurate quote of what was written on Facebook, which the defense alleges misconstrues the context of the remarks as well as their meaning.

Carter was arrested by Austin police and lodged in the Travis County Jail on Feb. 14, and stayed there until March. At that time, police determined that he was actually under the jurisdiction of Comal County, the county in which New Braunfels is located.

The information gleaned by the ARIC, potentially including the fact that Carter had lived near a school, was passed on to the New Braunfels Police Department on March 6. On March 19, New Braunfels police went to the Travis County Jail and interviewed him, and Carter allegedly admitted to making the Facebook post.

That led police to request a search warrant for Carter’s apartment, and a warrant for his arrest, both of which were served on March 20.

The defense contends that the interview that took place on March 19 in the Travis County Jail violated Carter’s Sixth Amendment rights because he had the right to have an attorney present.

From Flanary’s viewpoint, many of the steps taken by law enforcement and the ARIC that led to Carter’s arrest are problematic.

“The thing is, the moment they get the screenshot, all they know is that there’s a person [who reported an alleged threat], and a person named Justin Carter,” he said. “They don’t know if [Carter] lives in Iceland, or Antarctica, or the Congo, or Austin, Texas. They don’t know if there’s jurisdiction to investigate or prosecute. They just know that someone somewhere on the planet sent … a satirical post about shooting a kindergarten.”

Flanary also contended that law enforcement’s reasons for arresting Carter at that point were flimsy, as were the jurisdictional issues.

“They have no jurisdiction to issue an arrest warrant, they don’t know at the time where it [the Facebook comment] was sent,” Flanary said. “So they don’t have a crime they could issue a warrant for. But that doesn’t stop them. They issue an arrest warrant based solely on that information, and they surmise that an offense has occurred, but they don’t specify the offense — they just say ‘a terroristic threat.’”

The “terroristic threat” charge against Carter isn’t about any imminent plans to actually engage in a school shooting or other attack. Instead, it focuses on Section 22.07 of the Texas Penal Code, a law that makes it illegal to issue “terroristic threats,” whether there’s an intent to carry them out or not. Flanary noted that the terroristic threats law would pertain to things like bomb threats that are meant to cause fear or disrupt people.

The terroristic threat law has a number of different conditions. Some threats are considered misdemeanors, but others are much more serious. The Comal County prosecutor, who brought charges against Carter, deemed his comments a third-degree felony, the most serious of the potential charges and which carry a sentence of two to 10 years and a fine of as much as $100,000.

Here are the various third-degree felony descriptions written in the law:

“A person commits an offense if he threatens to commit any offense involving violence to any person or property with intent to:

cause impairment or interruption of public communications, public transportation, public water, gas, or power supply or other public service; place the public or a substantial group of the public in fear of serious bodily injury; or influence the conduct or activities of a branch or agency of the federal government, the state, or a political subdivision of the state.

The Comal County Prosecutor’s Office refused to comment when contacted by Game Front. The office issued a statement to TV station KENS 5 in San Antonio earlier this week:

“We are aware that there is a significant amount of public interest in the case. “However, ethical rules prohibit a prosecutor from making any statements to be disseminated by public means that could prejudice a pending criminal proceeding. Justin Carter’s case will proceed through the criminal justice system like all other felony cases. Our office will have no further comment on the Justin Carter case until it is closed.”

The indictment states that Carter is accused of violating two areas of the terroristic threat law: to cause impairment of public services, and to place the public or a substantial group in fear of serious bodily injury.

However, the question in the case isn’t whether Carter intended to make good on the alleged threat; he’s not being accused of planning some sort of attack, and police found no evidence of an imminent attack when they searched his place of residence. Rather, the question is what he intended by allegedly making the statement. Carter’s “intent” will likely be a big part of the case if it winds up going to trial.