Justice Carol Hunstein.
Justice Carol Hunstein. (Photo: John Disney/ALM)

The Georgia Supreme Court has ruled that a student who posted on Facebook about taking an assault rifle to school cannot find protection in the Constitution.

“Lord, please save me before o [sic] get the chopper out and make Columbine look childish,” Devon Major said in September 2014 post on his Facebook page complaining about his charter high school, Lanier Career Academy in Hall County. A school resource officer saw the post and reported it to police and the principal.

“City chopper” is a term for an AK 47 assault rifle, according to the Urban Dictionary.

Major admitted posting the statement. He was arrested and charged with threatening to commit a crime of violence against another “in reckless disregard of causing such terror” in violation of Georgia law.

Defense counsel John Walter Rick, formerly with the Hall County Public Defender’s Office, challenged the indictment, arguing that the statute is unconstitutional because it is vague and overbroad in violation of the First Amendment right to free speech and Fourteenth Amendment right to due process.

The public defender argued that the statute punishes protected speech by focusing on the state of mind of the person receiving the threat, rather than the speaker, and that recklessness does not require a showing of specific intent and therefore does not meet the definition of a “true threat.”

“We disagree,” wrote Justice Carol Hunstein in a unanimous opinion released Monday. “It is well established that recklessness requires a person to act with ‘conscious disregard for the safety of others.’”

“Contrary to Major’s assertions, recklessness clearly requires an analysis of the accused’s state of mind at the time of the crime alleged,” Hunstein said.

She also rejected Major’s argument that recklessly communicating a threat of violence does not meet the definition of a “true threat.”

“The United States Supreme Court has defined a true threat to include ‘those statements where the speaker means to communicate a serious expression of an intent to commit an act of unlawful violence to a particular individual or group of individuals,’” Hunstein said. “The speaker need not actually intend to carry out the threat.”

The justices upheld Hall County Superior Court Judge Bonnie Oliver in denying Major’s motion to dismiss the charge on constitutional grounds, siding with Northeastern Circuit District Attorney Lee Darragh and Georgia Deputy Attorney General Patricia Burton. The attorneys could not be reached immediately for comment.

Hunstein also rejected the argument the phrase, “Lord, please save me,” in the post was therapeutic or religious in nature and did not reflect an intent to commit a violent act.

“Whether an accused acted with the required criminal intent is a question of fact reserved for the jury, not this court,” Hunstein wrote. “Based on the evidence in the record before us, we find that the statute has not been unconstitutionally applied to Major.”

The Georgia Supreme Court has ruled that a student who posted on Facebook about taking an assault rifle to school cannot find protection in the Constitution.

“Lord, please save me before o [sic] get the chopper out and make Columbine look childish,” Devon Major said in September 2014 post on his Facebook page complaining about his charter high school, Lanier Career Academy in Hall County. A school resource officer saw the post and reported it to police and the principal.

“City chopper” is a term for an AK 47 assault rifle, according to the Urban Dictionary.

Major admitted posting the statement. He was arrested and charged with threatening to commit a crime of violence against another “in reckless disregard of causing such terror” in violation of Georgia law.

Defense counsel John Walter Rick, formerly with the Hall County Public Defender’s Office, challenged the indictment, arguing that the statute is unconstitutional because it is vague and overbroad in violation of the First Amendment right to free speech and Fourteenth Amendment right to due process.

The public defender argued that the statute punishes protected speech by focusing on the state of mind of the person receiving the threat, rather than the speaker, and that recklessness does not require a showing of specific intent and therefore does not meet the definition of a “true threat.”

“We disagree,” wrote Justice Carol Hunstein in a unanimous opinion released Monday. “It is well established that recklessness requires a person to act with ‘conscious disregard for the safety of others.’”

“Contrary to Major’s assertions, recklessness clearly requires an analysis of the accused’s state of mind at the time of the crime alleged,” Hunstein said.

She also rejected Major’s argument that recklessly communicating a threat of violence does not meet the definition of a “true threat.”

“The United States Supreme Court has defined a true threat to include ‘those statements where the speaker means to communicate a serious expression of an intent to commit an act of unlawful violence to a particular individual or group of individuals,’” Hunstein said. “The speaker need not actually intend to carry out the threat.”

The justices upheld Hall County Superior Court Judge Bonnie Oliver in denying Major’s motion to dismiss the charge on constitutional grounds, siding with Northeastern Circuit District Attorney Lee Darragh and Georgia Deputy Attorney General Patricia Burton. The attorneys could not be reached immediately for comment.

Hunstein also rejected the argument the phrase, “Lord, please save me,” in the post was therapeutic or religious in nature and did not reflect an intent to commit a violent act.

“Whether an accused acted with the required criminal intent is a question of fact reserved for the jury, not this court,” Hunstein wrote. “Based on the evidence in the record before us, we find that the statute has not been unconstitutionally applied to Major.”