Terrorism threat needs sharper definition, lawmakers say

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Capital News Service

LANSING – An Oakland Township man charged with threatening terrorism has prompted a legislative drive to redefine what that word means.

A bill recently reintroduced by Rep. John Reilly, R-Oakland Township, would clarify what constitutes a terrorist threat in Michigan. His effort last year never received a hearing and did not make it out of committee. 

“The right to free speech is vital for the citizens of a free and open society, and our national and state constitutions both protect that right,” Reilly said when he introduced the bill in June.

“Unfortunately, a vague state law has allowed prosecution of constitutionally protected speech. We must clarify the law to target actual threats, rather than violating constitutional rights.”

Reilly introduced the legislation because of the arrest of Lucas Gerhard for allegedly making a terror threat.

In August 2019, then 19-year-old Gerhard, a student at Lake Superior State University in Chippewa County, posted a photo in a private Snapchat group of his AR-15 semi-automatic rifle just before he was set to return to the university.

The caption accompanying the photo said, “Takin’ this bad boy up, this outta make the snowflakes melt, aye? And I mean snowflakes as in snow (winky face emoji).” 

The university allows weapons on campus if they are registered and stored at the Public Safety Department. 

Two students complained about the post to the campus police department. Both understood the word snowflake to mean Democrats or liberals. One said she believed Gerhard “intended to use the gun and shoot liberal students.” 

The campus police referred the matter to Sault Ste. Marie police who arrested Gerhard and charged him with making a terroristic threat.

Cosponsors of the bill include Reps. Beau LaFave, R-Iron Mountain, Steven Johnson, R-Wayland, and David LaGrand, D-Grand Rapids. Reilly said the statute is too broad and fails to allow for context or joking statements to be taken into consideration when perceived terrorist threats are made. 

“We’re sitting here with bipartisan people trying to put together what we believe is the best language,” Reilly said.

In a recent appeal asking that his case be dropped, Gerhard said the terror charge violated his right to freedom of speech. 

The Court of Appeals disagreed and denied the appeal. Judge Amy Ronayne Krause wrote that the fixed bayonet on the rifle, combined with the political context of his post, factored into the denial.

Snowflake is a popular insult for the political right to describe liberals whom they believe are acting too fragile, wrote Jessica Goldstein of Think Progress, a progressive news website.

If convicted, Gerhard could face up to 20 years in prison. 

The bill would ensure that the anti-threat law would target actual threats rather than teenagers saying “stupid things,” LaFave said during a recent hearing of the Military, Veterans and Homeland Security Committee. 

The legislation could make a difference for Gerhard’s case, his attorney, Philip Ellison, said at a House committee hearing.

“I think what Lucas Gerhard did was immature,” said Nancy Costello, a law professor and director of the First Amendment Clinic at Michigan State University. “But I do not think what he did was a true threat that would amount to where he would have been arrested under the anti-terrorist statute.”

She recommended dropping the word “recklessly” from the bill’s definition of a person making a terrorist threat as a person who ”knowingly, intentionally, or recklessly makes a statement that would intimidate, frighten or coerce a victim.”

“I was very concerned when I saw the line where it says ‘knowingly, intentionally or recklessly makes a statement,’” said Costello.

Costello said, “The word ‘recklessly’ casts a very wide net.”

The terrorism statute was correctly applied to the individuals accused of plotting to assassinate and kill Gov. Gretchen Whitmer, she said.

The majority of people who spoke at the hearing or emailed in support of the bill did so as a direct result of Gerhard’s situation and what they see as both a miscarriage of justice and a “snowflake meltdown.”

“I just heard about the Lucas Gerhard situation,” wrote Stephen Dawley of Troy. ​​”He joked that his rifle would make snowflakes melt, and you can see that it did indeed. A snowflake classmate had a meltdown when she saw the rifle.”

Rep. Gary Eisen, R-St. Clair Township, sees Gerhard’s case as having a domino effect unless legislation such as this bill is enacted.

“Because we opened the door for one thing, then somebody else says, ‘Well, you know, I really don’t like bow and arrows,’” Eisen said. “It could possibly open the door for something as simple as a baseball bat.”

“And the next thing you know, we’re just going to go after people we don’t like because they know how to take care of themselves.”

The cosponsors plan to revise the language in accordance with what they heard in testimony. 

LaFave said he is excited about the issue. He intends to work with Kimberly Buddin, the policy counsel at the American Civil Liberties Union of Michigan, to include their concerns.

Buddin sent in a card of opposition for the hearing, but was not available for comment when contacted.

Once revisions are made, the bill will be brought back to committee for a vote.

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