CONSTITUTIONAL REPERCUSSIONS OF THE TRAGIC FLORIDA SCHOOL MASS MURDERS

By KENNETH DEL VECCHIO

In 1969, legendary rock star Jim Morrison was charged with six counts of lewd and obscene conduct for alleged antics at a Doors concert in Miami, Florida. He was accused of using “open profanity” and for displaying his private parts in front of his largely intoxicated audience, many of whom stripped to nudity themselves during the show. Eyewitness accounts varied: some say Morrison unzipped and unleashed his personal weapon, others say he merely feigned the act. Everyone agrees that he used foul language. Ultimately, a year later, after a wasted three weeks of trial time – which included the use of a 4-perosn prosecutorial team – Morrison was convicted of indecent exposure and for the invocation of his First Amendment right to swear, curse or cuss as one may say in the South.

That was a malfunction of the law nearly five decades ago in Miami, a city located in Dade County. The moral police had meddled, successfully, into Morrison’s First Amendment rights. In 2018, the notion that one can call another a “motherf#@ker” or some other profane word is an understood constitutional right. Disrobing in a private artistic event that patrons pay to attend, as distasteful as it may be to be some, is legally permissible; there are completely nude Broadway plays and “all nude all the time” go-go bars. Dade County law enforcement officials and their corresponding political bosses have rendered themselves a collective joke in the historical purview of the Jim Morrison case but, at that time, there was considerable support for their proposition that the Doors front man should be criminally punished. The obscenity debate, indeed, raged nationally.

Today, in very nearby Broward County, a very different constitutional crisis-style debate is erupting in Florida and throughout the nation. The Second Amendment right to bear arms is front and center, with many opining that this clear-cut right should be abridged; as a now-normal strategy, the far left are erroneously and sadly using a major tragedy for political gain. The issue of whether capital punishment, aka the death penalty, is legal (and moral) has also been sparked, with considerable discussion underway. First Amendment rights, however, are not a current focal point, but are smoldering in the background – these are budding flames that most do not want to immediately touch for fear of being burnt alive in the witch hunt media/political frenzy. But scary propositions are being posited, and they need to be addressed and quelled before another, separate constitutional crisis emerges.

Nikolas Cruz, the grotesque 19-year-old figure who allegedly premeditated the murders of 17 students and adults at a Broward County high school and close by streets, issued many inflammatory, if not frightening statements in social media posts before he carried out the killings. He reportedly posted on Instagram about performing target practice with a pellet gun in his backyard and about killing animals. He also repeatedly put up photos of guns and knives, and discussed them. More so, a Mississippi bail bondsman who frequently watches YouTube videos alerted the FBI last fall of a particularly disturbing statement that he saw delivered by Nikolas Cruz in a video. Cruz had posted a video on YouTube, where he proclaimed, “I’m going to be a professional school shooter.”

The bondsman, Ben Bennight, advised that the FBI immediately responded to him, visiting with Bennight the next day. It is unclear whether the law enforcement agency actually interviewed or contacted Cruz.

Although it may not be a popular concept in the wake of this tragedy, there is nothing illegal that Cruz had done via his disturbing social media commentary. Law enforcement had no authority to arrest or even detain him. Many politicos looking for attention, as well as media talking heads (including some uninformed lawyers) are already arguing that law enforcement erred in not previously arresting Cruz for his salacious speech. This Monday morning legal quarterbacking is neither instructive nor beneficial to remediating the dangers posed by people like Cruz. Simply, there was no criminal statute violated by him through his spoken or written words.

If Cruz had directly threatened to kill another person(s), his speech would not be protected, and he could be convicted of the crime of terroristic threats.  An individual is guilty of this offense if he threatens to kill another with the purpose to put him in imminent fear of death. The statute also sets forth a “reasonableness” requirement—that the victim reasonably believes the immediacy of the threat and that it will likely be carried out. In the case of Cruz’s social media posts, none of these elements have been met.

It is understandable why people would want to take the statement “I’m going to be a professional school shooter” – and conform it to being a prosecutable threat. However, it is not a direct threat to kill another individual(s); it is, at most, a proclamation of a desire to potentially do something. The reader does not know if the person is serious in his apparent desire, if he is venting and is not really serious, or if he is just joking; all are possibilities. More so, the “imminence” and “immediacy” requirements have not been met. No one has been put in “imminent fear of death” by this statement. Also, since there is no defined victim, no person could “reasonably” believe the “immediacy of a threat” that hasn’t been directed at him, nor given any time frame (much less an “immediate” time frame). Thus, legally, this statement does not even come close to amounting to a terroristic threat, or any crime at all, which means that an arrest would have been unlawful.

That said, the FBI surely had the right, if not obligation, to investigate Cruz because of this wholly disturbing comment. Clearly, any credible law enforcement officer would conclude that a person making such a comment has the potential to commit the type of killing spree that he cited. This reasonable conclusion definitively could have served as a lawful basis for the FBI and other law enforcement agencies to interview and otherwise investigate Cruz. Good old-fashioned police work would have surely led law enforcement to other concerning facts about Cruz, such as his high school expulsion, the disallowance of him to carry a backpack in school because of bullet fragments found in it, his semi-automatic gun ownership, and his threats to other students. Could such law enforcement presence have resulted in preventing Cruz’s atrocities? Perhaps.

A standard law enforcement investigation into his social media commentary might have culminated into finding evidence of his plans to commit the obviously premediated murders. However, at this stage, it would be imprudent to condemn the FBI, because no one knows if they followed up on their Mississippi bail bondsman lead and, if so, what it may have revealed. It is just as likely that such a lead would culminate into a dead end as that it would render evidence that a crime was about to be committed.

The FBI (and any law enforcement in receipt of Cruz’s disturbing posts) would only be at fault under two circumstances: if they failed to investigate Cruz or, alternatively, if they went in the exact opposite direction and unlawfully arrested him for making a statement that, as alarming as it was, does not constitute a crime.

No doubt, the tragedy that just occurred in Florida should prompt legal, political, and media minds to ask questions and seek the vigilance of law enforcement and all people when confronted with individuals who may be capable of carrying out mass murders. However, hysteria should not result in the dangerous slippery slope path of arresting people on the basis of social media or other comments they have issued. At its core, the United States Constitution is rooted in the protection of civil liberties. Our government has failed us over time in safeguarding these precious rights, with the Jim Morrison case being just one example.

While it is natural to look for every mechanism possible, via law enforcement intervention and otherwise, to stop a killing rampage like Cruz’s, these mechanisms must be constitutionally grounded. Once the speech police wrongfully use a tragic event like these high school murders as an excuse to start executing improper criminal charges, their illicit misuse of the law will surely decline into further infringements of U.S. citizens’ First Amendment rights to free speech. That type of society is just as dangerous to live in as a society with murderers. Both ills need to be prevented. In Cruz’s matter, if he is proven guilty beyond a reasonable doubt (another constitutional protection) of capital murder in a court of law, justice will be served by the implementation of capital punishment. But that is another divisive topic to be dissected…

Kenneth Del Vecchio, ESN publisher and editor-in-chief, is the author of some of the nation’s best-selling legal books, including a series of criminal codebooks published by Pearson Education/Prentice Hall and ALM/New Jersey & New York Law Journal Books. He is a former judge, a former prosecutor and a practicing criminal/entertainment attorney for 23 years, wherein he has tried over 400 cases.  Mr. Del Vecchio is also an acclaimed filmmaker who has written, produced and directed over 30 movies that star 100+ film and TV stars, including several Academy Award and Emmy winners and nominees. His films are distributed through industry leaders such as Sony Pictures, NBCUniversal, Cinedigm, and E-1 Entertainment. He has starred in numerous movies, as well. A best-selling political thriller novelist, he penned his first published novel at only 24-years-old. Additionally, Mr. Del Vecchio is the founder and chairman of Hoboken International Film Festival, called by FOX, Time Warner, and other major media “One of the 10 Biggest Film Festivals in the World.”  A frequent political and legal analyst on networks such as Fox News Channel, Mr. Del Vecchio formerly served as the publisher and editorial page editor for a New Jersey daily newspaper. 

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