The Volokh Conspiracy
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Likely Sarcastic Facebook Post Can't Justify Arrest of Author for Threats
Police generally need to investigate matters further, to see if the post was really a threat or sarcasm -- and if they don't investigate further, and don't have a good reason for the immediate arrest, they can be sued for a Fourth Amendment violation, and be denied qualified immunity.
From Ross v. City of Jackson, decided Friday by the Eighth Circuit:
On January 25, 2015, James Ross was a 20-year-old resident of Cape Girardeau, Missouri, and an active user of the social media website, Facebook. Facebook allows users to connect with each other by establishing "friend" relationships and posting items to a personal feed that can be viewed by the user's friends. That evening, one of Ross's Facebook friends posted an image (or meme) that showed a number of different firearms below the title "Why I need a gun." Above each type of gun was an explanation of what the gun could be used for—e.g., above a shotgun: "This one for burglars & home invasions"; above a rifle with a scope: "This one for putting food on the table"; and above an assault rifle: "This one for self-defense against enemies foreign & domestic, for preservation of freedom & liberty, and to prevent government atrocities."
Ross interpreted this post as advocating against gun control measures. Ross, an advocate in favor of gun control measures, commented on the post: "Which one do I need to shoot up a kindergarten?" Ross then logged off Facebook and went to bed.
The post (including Ross's comment) was soon deleted, but not before a cousin of the person who originally posted the meme took a screenshot of it. The cousin then forwarded the screenshot to a yet another person, a mutual cousin, without any annotation or additional commentary. That individual, in turn, shared it with her husband—Ryan Medlin, a member of the City of Jackson Police Department….
Medlin got the post at 5:30 pm, forwarded it to two colleagues, Anthony Henson and Toby Freeman, and between 7 and 8 pm the next day they arrested Ross at his job.
One of the officers told him they were there because of a post on the internet, but neither officer asked Ross any questions about the post or his comment. Nor did they ask Ross any questions about his interest in, or ownership of, firearms. Unprompted, however, Ross told the officers that his comment on Facebook was not serious, that it was meant to be a joke, and that he was willing "to clear this up right here."
Ross was placed in handcuffs and escorted out of the store to a police car in full view of his co-workers….
Ross was charged with misdemeanor disturbing the peace, and two weeks later the charges were dismissed.
The Eighth Circuit held that the arrest violated the Fourth Amendment, because the police lacked probable cause to believe the speech was threatening—and this was so clear that the police were not entitled to qualified immunity:
[A Fourth Amendment] violation occurs when there is a warrantless arrest that is not supported by probable cause to believe that a crime has been committed…. Ross was arrested under Mo. Rev. Stat. § 574.115.1(3) (2015), which as relevant, made it a crime to "communicate[ ] a threat to cause an incident or condition involving danger to life … [w]ith reckless disregard of the risk of causing the evacuation, quarantine or closure of any portion of a building, inhabitable structure, place of assembly or facility of transportation." Missouri courts have imposed a narrowing construction on this language—in keeping with [First Amendment] dictates—such that it applies only to "true threats."
In particular, Missouri courts have held that it was not a violation of this statute when a "defendant's communication was not a 'true threat,' as defined by the United States Supreme Court …, because it was not a declaratory statement, did not express an intent to cause an incident involving danger to human life, and did not place his friend in fear that the threat would be carried out." And, similarly, in [that case], the Missouri court concluded that posts on the social media website Twitter referencing "pressure cookers and allusions to the Boston Marathon bombing were tasteless and offensive, [but] the context of [the defendant's] tweets was such that a reasonable recipient would not [have] interpret[ed] them as serious expressions of an intent to commit violence." …
The officers were justified in their efforts to investigate Ross's post. In current times and in light of current events, the statement demonstrated, at a minimum, questionable judgment. But the state statute at issue does not apply to any speech that is not a "true threat," and—under Missouri precedent—a reasonable officer would have understood that…. "[O]fficers have a duty to conduct a reasonably thorough investigation" only when there is an "absence of exigent circumstances" and they would not be "unduly hampered" by "wait[ing] to obtain more facts before seeking to arrest." And if any further investigation had led the officers to believe there was an immediate or imminent danger, they would have been justified in acting on that information. Here, however, no exigent circumstances prevented the officers from gathering additional information before making an arrest.
In this case, even a "minimal further investigation" would have revealed that Ross's post was not a true threat. The officers conducted no investigation into the context of the statement, Ross's history of violence [he had none], or Ross's political beliefs about gun ownership or gun control measures. [Footnote: For example, the original meme was about why someone might need a gun, and gave examples explaining what the various types of guns could be used for. In that context, Ross's comment—which directly paralleled the language of the meme—was responding by suggesting another, far more upsetting, use to which he believed such a gun might be put. See Watts v. United States (1969) ("The language of the political arena … is often vituperative, abusive, and inexact."). The comment was in the form of a rhetorical question, which identified no school where a shooting would happen. And the comment was made on a social media website that the Supreme Court has recently called "a quintessential forum for the exercise of First Amendment rights" analogous to "a street or park."]
Viewing the evidence in the light most favorable to Ross, the officers saw the comment, discovered where Ross worked, and then went to his job site with the sole intent of placing him under arrest. Ross tried to explain what was meant by his comment and provide the officers with more context about the post, but the officers did not give him that opportunity until after he was booked at the police station. And, after interviewing Ross, officers indicated that they did not think the charges would stick, i.e., they did not believe he had truly made a "terrorist threat." Ross was nonetheless charged and held in custody for several days until he was able to post bail. In sum, it is beyond debate that—had the officers engaged in minimal further investigation—the only reasonable conclusion was that Ross had not violated § 574.115.1(3)….
