Let me tell you about Travis Corcoran.
Corcoran lives in Arlington, Mass., and till July 4 of this year, the self-described “anarcho-capitalist” made his living running comic book store Heavy Ink. He first ran into trouble after the shooting of Congressman Gabby Giffords, when he posted the following:
In response, the police apparently temporarily took Corcoran’s firearms license, and some customers of Heavy Ink organized a boycott.
On July 4, in an apparent response to the heavy security measures proposed for the Esplanade, he made another violently-themed tweet:
Unlike with the Long Island case, Corcoran was not simply searching for something that someone malevolent might also search for: anybody could do that. He was fantasizing about violence, but in a way that is not specific to any named individual. So let’s have a look at the law on such threats, and then I’ll let you know what has happened to Corcoran. I’d welcome your thoughts on what should have happened.
Massachusetts’ jury instructions as to the laws relating to criminal threats read as follows:
First: That the defendant expressed an intent to injure a person, or property of another, now or in the future;
Second: That the defendant intended that his (her) threat be conveyed to a particular person;
Third: That the injury that was threatened, if carried out, would constitute a crime; and
Fourth: That the defendant made the threat under circumstances which could reasonably have caused the person to whom it was conveyed to fear that the defendant had both the intention and the ability to carry out the threat.
Corcoran’s first tweet did not threaten any “particular person” (“politicians and their staff”), and neither did his second (“statists”). It seems straightforward, therefore, that he would not be convicted under Massachusetts’ criminal threat laws. Nor does Massachusetts’ law against intimidation of officers of the commonwealth apply, because there is no evidence that Corcoran was threatening officers of the commonwealth as opposed to members of the US Congress. Under 18 USC § 875, Corcoran might be charged with “transmit[ting] in interstate or foreign commerce any communication containing any threat to kidnap any person or any threat to injure the person of another” (carrying a charge of up to five years), but again it would be difficult to prosecute given that no “person” is identified and the threat is exceedingly nonspecific. The most closely relevant Supreme Court precedent, Watts v. United States (1969), ruled speech constitutional even if it was a hyperbolic threat that named the President specifically. So, with respect to the tweets themselves, Corcoran appears to be legally in the clear.
After seeing these tweets, the Joint Terrorism Task Force “linked the tweet to Corcoran after obtaining a subpoena through the Attorney General’s office.” There are two stages identified here. First is the fusion center issue: that the Joint Terrorism Task Force, operating out of the Boston Regional Intelligence Center, is pro-actively scanning Twitter for language that it finds threatening. Since these threats were not specific, they did not constitute evidence of a legal violation, but the JTTF nevertheless applied for an administrative subpoena. Massachusetts’ administrative subpoena law has been the target of much criticism from the ACLU of Massachusetts, who note:
The law, originally drafted to nab bookies, was amended in 2008 on the pretext of increasing sentences for sex offenders (“Jessica’s Law”). At the time, the ACLU warned that that the power “wasn’t limited to investigations of suspected sex offenders or child abuse cases. It was a general grant of unchecked power to District Attorneys and the Attorney General that can be used against all residents of Massachusetts.”
The provision enables prosecutors to acquire private communications records from internet and other communications providers merely by issuing an “administrative subpoena”–a demand letter–without ever telling you that your records are being sought. Local DAs and the Attorney General need only “reasonable grounds” to believe that the records were “relevant and material to an ongoing investigation”–which is a very low standard. The government says you can’t challenge their determination–at least apparently not until you are indicted.
In this situation, even though the standard is already too low, it does not seem that it was actually met. There should not have been an “ongoing investigation” to which these records were “relevant and material”, because there was no evidence of an actual crime being planned or committed. Nevertheless, the JTTF got their subpoena, Twitter complied, and the JTTF notified Arlington PD “that the tweet may have come from Corcoran.”
The Arlington Advocate reports that on the night of July 4, “state and local police officers, including several from the state’s Special Tactical Operations team, arrived at Corcoran’s home to question him. Police said Corcoran allowed officers to search his home after consulting with his attorney.”
In comments on a gun rights blog, Corcoran tells his side of what happened next:
“I repeatedly refused the cops’ requests for a voluntary walk-through of the house. I repeatedly refused to answer any questions. The cops repeatedly told me that if I had nothing to hide, I should just allow a walk-through, and if I was a good guy, I’d have a “conversation” with them. In the end they illegally seized my FID [Ed. – firearms identification] (just plain CAN NOT do it, but they took it and wouldn’t give it back) and they illegally seized Jennifer’s firearms. [Ed. – News reports suggest that these included two handguns and five rifles, including a high-powered .322 caliber rifle, and that contravening state law, they were not stored in locked containers or be fitted with trigger locks. Two replica muskets that were also found are not required to be stored in locked containers under state law.] My lawyer was appalled but not surprised. At the end, some of the cops who ransacked the house tried to shake hands with me. “No hard feelings”. I refused and said “Gentlemen, please think about what you’re doing. On the Fourth of July, the day we celebrate freedom… You are ‘just doing your jobs’. Look in the mirror. You’re the bad guys.” Response: “I’m sorry you feel that way. Have a good Fourth. We got to watch the cops carry the illegally seized firearms out through the front door, WHICH HAD A COPY OF THE DECLARATION OF INDEPENDENCE TAPED TO IT, then past an American flag and a Gadsden flag.
I built this house myself. My godchildren live two blocks away. My business is 0.2 miles away. !@##$ IT. We’re going to New Hampshire TOMORROW to look for real estate; we’re leaving Occupied Massachusetts; I look forward to breathing free in America.”
Two days later, on Twitter, @tjic (presumably Corcoran), angry at his treatment, posted, “Putting the house up for sale, moving to NH. Scouting towns today after bkfst [sic]. MA is a police state; cops deserve to die.” (The house is not yet up for sale.) Again – a violent tweet, but without content specifically pointing to any more specific target than “cops”.
It looks as if under the Massachusetts firearms statute, Corcoran would be liable for a term of imprisonment of up to one year for the improper storage of firearms; but that is only if the search leading to the discovery of the improperly stored firearms is ruled to have been legal. Corcoran’s account suggests that the police did not have a search warrant for the house, but searched it anyway, which would usually render the fruits of the search inadmissible in court. I have called Arlington PD to check on whether there was a warrant, but unfortunately their officer handling press inquiries is currently on vacation.
This, like the Cameron d’Ambrosio case, is an example of how intemperate online comments can snowball quickly into criminal indictments, and how, in the name of crime prevention, procedural constraints such as the Fourth Amendment are easily disregarded. I’m a Democrat, and not a particularly enthusiastic fan of the Second Amendment, and am therefore almost certainly a “statist” in Corcoran’s mind; but it seems clear that the administrative subpoena law is being misused in situations where there is no actual crime, and that his house ought not to have been searched.