Motion to dismiss a charge of making a threat of terrorism (MCL 750.543m); Constitutionality of the statute; Counterman v Colorado; People v Osantowski; People v Byczek; “Threat”; M Crim JI 38.4(3)

In an interlocutory appeal, the court held that MCL 750.543m is facially unconstitutional. Thus, it reversed the trial court’s denial of defendant’s motion to dismiss and remanded for entry of an order dismissing the charges of making a threat of terrorism and using a computer to commit a crime. The U.S. Supreme Court in Counterman “held that, in a true-threats case, ‘[t]he State must show that the defendant consciously disregarded a substantial risk that his communications would be viewed as threatening violence.’” Defendant asserted that “MCL 750.543m is facially unconstitutional because it does not require the prosecution to prove that he acted recklessly—i.e. that he disregarded a substantial risk that his communication would be viewed as threatening violence—when he sent a social media message suggesting that he would ‘shoot up’ a school.” The court agreed. It noted that in Osantowski and Byczek it “interpreted MCL 750.543m as constitutional because it only applies to true threats.” But those cases were “silent as to whether the defendant’s general intent to communicate a true threat must be judged by an objective standard or by a subjective standard.” Thus, they did not resolve the issue here. While the prosecution directed it to M Crim JI 38.4(3), the court found that the language of the jury instruction “is not aligned with the Counterman standard, which requires the prosecution to show a defendant’s subjective intent, by at least a standard of recklessness.” It also noted that in “considering whether a statute is or is not constitutional, it is the words of the statute that must be examined, not the model jury instructions.” Reviewing the statute, the court held that it is facially unconstitutional because it contains no “language suggesting that the prosecutor must prove that the defendant consciously disregarded a substantial risk that his communications would be viewed as threatening violence[.]”