Last weekend ABC News reported the Pasco County Florida Sheriff’s Office recently arrested a female juvenile accused of using social media to make online threats against three schools. According to an arrest report, the 13 year-old girl created an Instagram account with the username “Jake The Klown” and wrote a post last week claiming Gulf Middle, Gulf High, and River Ridge High schools in New Port Richey, 40 miles north of Saint Petersburg, would be attacked on Monday, October 30, 2017. The report further states the girl told deputies the post was a prank.
The eighth grader, who is not being identified because of her age, faces a felony charge of written threats to kill or do bodily harm. An experienced criminal defense lawyer familiar with this charge, however, may be able to get the charge reduced, or even dismissed.
The crime of written threats to kill or do bodily harm is governed by Florida Statute section 836.10. That section provides “[a]ny person who writes or composes and also sends or procures the sending of any letter, inscribed communication, or electronic communication, whether such letter or communication be signed or anonymous, to any person, containing a threat to kill or to do bodily injury to the person to whom such letter or communication is sent, or a threat to kill or do bodily injury to any member of the family of the person to whom such letter or communication is sent commits a felony of the second degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084.”
Under Florida law, the crime of written threats is a second degree felony, punishable by up to fifteen years in prison or fifteen years of probation, and a $10,000 fine. The crime carries a Level 6 offense severity ranking under the Florida Criminal Punishment Code. Prosecutors therefore often seek jail or substantial probationary sentences for this crime, even for first offenders.
By its express language, section 836.10 applies only where a threat is sent by or on behalf of person to another person or member of their family. Section 836.10 does not criminalize written threats that have not been “sent” to the person being threatened or to a member of that person’s family. See State v. Wise, 664 So.2d 1028, 1030 (Fla. 2d DCA 1995). The act of sending under section 836 .10 requires both “the depositing of the communication in the mail or through some other form of delivery” and “the receipt of the communication by the person being threatened.” Id.
The social networking app Instagram is not properly considered a “form of delivery” under the facts of this case because, even though the juvenile posted her comments to a public forum, there is no evidence that, beyond referencing the potential victims, she directed the threats to the schools themselves. That the schools were informed of the threat by others who viewed the posts, without more, is insufficient to support a finding that the threat was “sent” to the schools under the very limited language of section 836.10.
The Pasco County Sheriff’s Office apparently relied on O’Leary v. State, 109 So.3d 874 (Fla. 1st DCA 2013) in arresting the juvenile for her Instagram posts. There the First District applied Wise in the context of threats posted on Facebook. The court determined those threats had been “sent” to all of the defendant’s Facebook friends for purposes of section 836.10.
The facts of O’Leary, however, crucially differ from those in this matter. O’Leary posted threats against a relative and her partner. Id. at 875. The post was viewed by a mutual relative who was Facebook friends with O’Leary. Id. The First District reasoned O’Leary had specifically requested the mutual relative to be his Facebook friend, and the mutual relative had accepted that request. Id. at 877. “By posting his threats directed to his family member and her partner on his Facebook page, it is reasonable to presume that [O’Leary] wished to communicate that information to all of his Facebook friends.” Id. And because O’Leary’s posts threatened a “member of the family of the person to whom” it was “sent,” his post fell within the language of section 836.10. Id. at 877–78.
The Pasco County case involving the juvenile’s Instagram posts appears factually distinguishable from O’Leary. The news reports don’t reflect any evidence that the juvenile’s threats were sent directly to any of the potential victims or their family members. Rather, it instead appears the threat was publicly posted on her Instagram and was viewed and then relayed by non-family third parties to the purported school victims. Therefore, in the absence of additional facts, it should be possible to have the charge reduced or even dropped.
Threats of any kinds against schools in social media postings are taken very seriously and can result in both expulsion and formidable felony charges. If your child has been arrested or charged with an offense arising from social media posting, you should speak with a Jacksonville criminal attorney experienced with these crimes. Doing so can give your child the best chance of avoiding a record negatively affecting their educational and employment opportunities for their entire adult life.