An elementary school student writes “BOMB INCOMING” on the wall of the boys’ bathroom at school. The student does not, in fact, know of any plans to bomb the school and has made no such plans himself. Has the student committed a crime or an act of juvenile delinquency? If so what crime or crimes has he committed?
Populate the poll below with your answer or answers and keep reading for mine.
In re D.W.L.B. Let’s start with the court of appeals opinion last week in In re D.W.L.B., ___ N.C. App. ___ (August 6, 2019). The petition in that case alleged that the juvenile
did make a report by writing a note on the boy’s bathroom wall at [his] Elementary School stating, “bomb incoming”; that being an act of violence is going to occur on educational property, that being [his] Elementary School, a public school in Jackson County; knowing and having reason to know that the report is false. GS 14-277.5.
The court held that this petition failed to allege a violation of G.S. 14-277.5, which makes it a Class H felony to make a false report concerning mass violence on educational property.
Making a false report concerning mass violence. The court said the petition was defective because it failed to allege that the juvenile made a report when he wrote the words on the bathroom wall. The petition did not allege that the juvenile directed the message “to anyone in particular or that anyone in particular actually saw it,” behavior that the court deemed essential to a violation of G.S. 14-277.5. Slip op. at 4. In addition, the court concluded that the allegations in the petition did not establish that the juvenile made a report because “it would not be reasonable for a person seeing the graffiti on the bathroom wall to construe said graffiti as a report of a credible threat.” Slip op. at 5. The court construed G.S. 14-277.5 to prohibit “only credible reports, that is, those that a reasonable person would believe could represent a threat.” Id. And the court reasoned that “no one would reasonably believe that the words “BOMB INCOMING,” written in a bathroom at some unknown time in the past and obviously by an elementary-school-aged student, represented a report of an actual threat that a bomb was incoming to the school.” Slip op. at 5-6.
Graffiti vandalism. The court went on to hold that the petition did properly allege a violation of graffiti vandalism, a Class 1 misdemeanor under G.S. 14-127.1.
Thus, In re D.W.L.B. narrows down the possible answers. This behavior constitutes graffiti vandalism, but not the making of a false report concerning mass violence on educational property.
What about the other crimes listed?
Making a false report concerning a destructive device. G.S. 14-69.1 makes it a Class H felony to make a false report concerning a destructive device in or close to a building, vehicle, aircraft, vessel or boat. The reasoning in D.W.L.B. indicates that the behavior described at the outset of this post would not constitute the making of a false report concerning a destructive device. But an earlier court of appeals case points in a different direction. In In re B.D.N., 186 N.C. App. 108 (2007), B.D.N, a middle-school student, typed “Bomb at Lunch” on a Texas Instruments calculator shared by students in various math class periods. B.D.N. typed in the message as a prank during her Friday math period. No one read the message until the following Monday, when a student in a different class period checked out the calculator. The court concluded that this evidence was sufficient to establish a violation of G.S. 14-69.1.
Unlike the D.W.L.B. court, which evaluated the sufficiency of the petition, B.D.N. evaluated the sufficiency of the evidence. And there was evidence in B.D.N. that another student saw the message and that the school was evacuated as a result of the threat. Nevertheless, the analysis in B.D.N. is hard to reconcile with the D.W.L.B. court’s conclusion that no reasonable person would construe the “BOMB INCOMING” message as a credible threat. Perhaps the age difference between a middle and elementary school student is a sufficiently distinguishing factor. So, in light of the student’s age in our example, my poll does not include a vote for violation of G.S. 14-69.1.
Communicating a threat of mass violence on educational property. Last year, the legislature enacted new G.S. 14-277.6, which makes it a Class H felony to communicate to another person a threat to commit an act of mass violence on educational property. That crime did not exist when D.W.L.B. wrote on the bathroom wall. If it had, would it have covered D.W.L.B.’s conduct?
I’m not sure. I think reasonable minds could disagree about whether “BOMB INCOMING” is a threat to commit an act of mass violence. One the one hand, a threat does not have to be explicit and precise and may be conveyed by veiled language. Cf. United States v. Voneida, 337 Fed.Appx. 246 (3d Cir. 2009) (unpublished) (upholding jury finding that college student transmitted threatening communication in violation of 18 U.S.C. § 875(c) when he posted statements on his personal social media page two days after Virginia Tech mass shooting that included “‘Someday: I’ll make the Virginia Tech incident look like a trip to an amusement park’”); United States v. Bly, 510 F.3d 453, 456–59 (4th Cir. 2007) (letter sent by former doctoral student was true threat to university board members and academic officers when it made demands and stated, among other threats, that “‘bullets are far cheaper and much more decisive’” than legal action as “‘[a] person with my meager means and abilities can stand at a distance of two football fields and end elements of long standing dispute with the twitch of my index finger’”); Haughwout v. Tordenti, ___ A.3d. ___ 332 Conn. 559, 573–79 (2019) (concluding that “[a]lthough most of the plaintiff’s comments were individually not an ‘explicit threat,’ that phrasing does not render them protected speech, because ‘rigid adherence to the literal meaning of a communication without regard to its reasonable connotations derived from its ambience would render [statutes proscribing true threats] powerless against the ingenuity of threateners who can instill in the victim’s mind as clear an apprehension of impending injury by an implied menace as by a literal threat’”). Given the current climate of increasing threats and incidents of school violence, words like “BOMB INCOMING” can create fear in those who read or hear them. Cf. Lovell v. Poway Unified School District, 90 F.3d 367, 372–73 (9th Cir. 1996) (concluding that “any person could reasonably consider the statement ‘[i]f you don’t give me this schedule change, I’m going to shoot you,’ made by an angry teenager [to school guidance counselor], to be a serious expression of intent to harm or assault,” especially “when considered against the backdrop of increasing violence among school children today”).
On the other hand, the statement in our example is vague and does not refer to any direct, impending action by the person who wrote it. And, if the statement is known to have been written by an elementary-aged student, it is less likely to be perceived as a true threat.
Several years ago, the court of appeals in State v. Mortimer, 142 N.C. App. 321 (2001), considered whether a student who posted a message on the screen saver of a computer in the school’s computer lab stating “The end is near” communicated a threat in violation of G.S. 14-277.1.
Emotions were raw when Mortimer posted his message. The shootings and bombings at Columbine High School had occurred just two weeks earlier. Parents, school officials, and students were on edge as a rumor had circulated that the high school Mortimer attended would be bombed that morning.
Nevertheless, the court of appeals concluded that the State failed to establish that Mortimer’s message was a threat. The court explained:
The meaning of the statement “the end is near” is impossible to ascertain. The end of what is near? Who will bring about the “end” and how? Numerous state witnesses testified at defendant’s trial that they did not know what the statement meant. Given the context in which the statement was written—Hoggard High School was in a state of fear over the tragedy at Columbine and local rumors of bomb threats—one possible interpretation of “the end is near” is that the writer intended to bomb the school. However, the leap to such a conclusion beyond a reasonable doubt is extremely speculative and, we think, not a reasonable inference.
Id. at 323.
The court also deemed it significant that Mortimer was “never connected with any of the alleged bomb threats at the school” and that “[t]here was no evidence [he] had any plans to physically injure anyone or damage school property.” Id. at 323-24. The message was a prank, which differentiated it, in the court’s view, from a threat “clearly stating what the speaker intended to do.” Id. at 331-32.
“BOMB INCOMING” may be less vague than Mortimer’s missive, but its meaning still is speculative.The phrase does not make it clear what action, if any, its writer intends to take. And if context is a relevant consideration in analyzing whether a defendant communicated a threat of mass violence, the fact that the elementary school student had no bomb, no supplies for a bomb, and no knowledge of or plans for a bomb may mean that the behavior described above would not constitute this crime.
So, in my poll, I’d vote for just one crime: Graffiti vandalism.