"The Product of Impulsive, Irresponsible, Exceedingly Immature Behavior, Rather Than a Serious, Contemplated Threat to Harm Police Officers"

An excerpt from Friday's order by Judge Kathleen Williams (S.D. Fla.) in U.S. v. Martinez:

On February 29, 2024, Martinez was indicted on the sole count of transmitting a threat in interstate commerce … after uploading to his private Instagram account a thirty-eight-second recording of him inside his vehicle, pointing a sight-equipped firearm in the direction of a police vehicle driving ahead of him. In the Video, dated November 20, 2023, then twenty-one-year-old Martinez is heard saying "I'm on yo ass like white rice my boy," saying, "red dot, red dot," and laughing. {In fact, the driver of the police vehicle was female School Board Office Yovney Perez.}

Unbeknownst to Martinez, Miami-Dade Police Department Detective Danilo Fuentes … had created a profile impersonating a young woman, in order to gain access to Martinez's private account as a follower. Though the "Instagram story" automatically became unavailable after twenty-four hours, Fuentes saw the Video.

Fuentes had been monitoring Martinez's account for some time and knew Martinez's identity, the type of car he drove, and his address. Fuentes called to check on Perez, who he ascertained was driving the police vehicle in the Video. Perez was unaware of Martinez until alerted by Fuentes. Although Fuentes testified to engaging in periodic surveillance of Martinez's home, no notes were taken during these surveillance activities, no department-wide alerts regarding Martinez were issued, and Martinez was not arrested until two months after posting the Video. Martinez's posting of the Video was charged as a true threat to police officers, generally.

At trial, the jury was shown the Video as well as a few dozen of Martinez's Instagram posts from the months immediately prior to the Video. The posts included photos and videos showing Martinez holding firearms or pointing firearms at the camera, off a high-rise apartment balcony or towards a dog. Many were captioned with generalized violent language like "let's go to war," "eye for an eye," and "Who left 'em dead inside the neighborhood? It was I."

ATF Special Agent Martin Amaran … opined that the firearm in the Video was real and that the posts support the idea that the violence of the rhetoric was escalating. Miami-Dade Police Department Detective Angel Delgado … testified that certain red clothing and hand signs exhibited by Martinez in prior posts are gang affiliated. The jury also heard from Perez, who testified to feeling fearful upon being shown the Video after the fact. However, none of the posts identified Perez or mentioned the police in any way.

The defense called an investigator, Luis Fernandez, who testified that many of the captions included in Martinez's posts were song lyrics of popular rap artists. Additionally, Martin Flores … testified as an expert to the diffusion of gang culture into rap and popular culture, especially among young men of all demographics across the country.

Martinez was convicted, but the court granted defendant's motion for a judgment of acquittal. The court concluded that there was (just barely) enough proof to find beyond a reasonable doubt that the statement was a true threat:

The Government is correct that the display of a real firearm increased the seriousness and threatening nature of Martinez's communication. A reasonable jury was also entitled to view Martinez's other photos posing with firearms and including violent captions as contributing to a perception of intimidation.

However, several other aspects of the charged conduct and surrounding context cast the Video as the product of impulsive, irresponsible, exceedingly immature behavior, rather than a serious, contemplated threat to harm police officers. Notably, Martinez never articulated a threat or plan to harm officers in any of his previous posts. In the Video, Martinez pointed his firearm's laser sight towards the police vehicle, said, "red dot, red dot," and laughed. Consequently, the posting of the Video several hours later, without any caption, was, at most, an implicit threat against law enforcement. This is in stark contrast to the explicit threats more commonly charged as true threats.

Next, Martinez did not knowingly send the Video to anyone who would understand themselves to be a target. In fact, Martinez's Post automatically disappeared on his private account after twenty-four hours. While a true threat can be made to one other than the target, it is axiomatic that a threat made directly to the target or in a way likely to reach them demonstrates clear intent to intimidate. Here, the evidence showed Martinez posted the Video only on his private Instagram account for a small group of followers; there was no reason he would have been aware that any police officers were among that group.

{Martinez's Instagram account moniker is 187shotta, which Delgado testified is a reference to a murder statute. Like Martinez's other prior posts, this generic violent reference may have added to the Video's menacing character. But, like those posts, the account name does not evince any intent to harm police.}

Moreover, the lack of evidence of alarmed or fearful reactions to Martinez's Video by his followers, or any indication that his viewers were incited to violent action, undermines the notion that Martinez's Post was a true threat. See United States v. Wheeler (10th Cir. 2015) (describing "recipients' responses" to a communication as relevant to a true threat determination); United States v. Baker (N.D. Fla. 2021) ("In assessing whether a communication entails a true threat, courts also take into consideration the reaction of recipients of the alleged threat."). The Government presented no evidence that anyone commented on the Video or any of Martinez's prior posts to establish that the posts were engendering either fear or urgency to do violence. Nor did anyone alert Martinez or law enforcement directly.

Likewise, despite police knowing Martinez's identity and whereabouts, officers did not document any surveillance of Martinez after the Post, did not disseminate a general alert to the law enforcement community, and did not arrest Martinez until two months after he posted the Video. This inactivity suggests police officers did not interpret Martinez's Video as communicating an imminent and true intent to harm officers.

Ultimately, however, despite the Court's reservations, the Court cannot say that no reasonable jury could have viewed Martinez's seeming fascination with firearms and his use of violent captions, together with the Video, as objectively threatening.

But the court concluded that the prosecution hadn't introduced enough evidence "to also prove beyond a reasonable doubt that Martinez subjectively knew the Video would be taken as a true threat or intended to convey a true threat to police officers" (the mental state required for the federal threats statute under Elonis v. U.S. (2015)):

A review of cases under § 875(c) and other statutes requiring a similar subjective intent reveals two broad categories of proof supporting knowledge or intent. In some circumstances, a defendant's communication is so "violent, explicit, and resolute" that the communication, or series of communications, is strong evidence of one's intent or knowledge. In other words, some threats are so unmistakable that the issuer must have either intended to threaten or known a reasonable person would interpret their words as a serious threat.

Other evidence, such as an admission, may also prove a defendant's mental state when communicating a threat. Knowledge may also be proven through evidence of notice, such as when a defendant makes threatening statements after being served a restraining order or being warned that similar previous statements have been taken seriously or may be grounds for prosecution.

The Government contends that Martinez's case falls into the first category—they claim that the Video, in the context of his prior posts, was such an obvious true threat that the communication alone proves Martinez's subjective intent. [A]s explained [in the previous section,] this evidence was only just sufficient to allow a reasonable jury to conclude the Video was objectively threatening. And given the multiple factors that would indicate otherwise—the lack of an explicit threat, the use of a private Instagram account, and the absence of any external feedback that his posts were either problematic or inciteful—Martinez's posts alone were not unmistakably threatening such that they proved his subjective intent.

{The Government also points to postings by Martinez, in which he wore red clothing, referenced "bloods," or displayed signs that Delgado testified are gang affiliated. However, the Government presented no evidence that the Video itself was a requirement of gang membership or was in furtherance of any particular gang activity. In the absence of this evidence, the conclusion that Martinez intended his posts as a gang-related reprisal to police is simply too speculative to credit.}

The Government did not introduce any evidence within the second category from which a reasonable jury could conclude Martinez had the requisite knowledge or intent. The Government introduced no direct evidence of Martinez's mental state, such as an admission of knowledge or intent, psychological expert testimony, or testimony of a friend or relative with knowledge of Martinez's thinking.

Likewise, the Government admitted no other circumstantial evidence probative of knowledge or intent. At no time, for instance, had Martinez been warned by police, his followers, an attorney, or anyone else to tone down or remove his posts. He had not been previously convicted, arrested, or served a restraining order based on any threatening activity. And there was no evidence that Martinez had any prior relationship with or animus towards any specific police officer or police department from which an intent to threaten could be inferred. If anything, evidence that Martinez's posts' captions included song lyrics from well-known rap songs and Flores's expert testimony discussing the popularization among youth culture of gang symbols would suggest that Martinez may have viewed his own posts as creative expressions rather than serious threats.

Consequently, the jury was left to "stack inference upon inference" to guess at Martinez's mental state. This degree of guesswork and unsupported speculation cannot sustain proof of guilt beyond a reasonable doubt.

Jenny Wilson (Klugh Wilson), one of my star former students, represents Martinez.