It is widely reported that the shooter in our latest school shooting was a classic rotten kid: in constant disciplinary trouble in school, getting into fights, getting expelled, killing small animals, boasting about his gun collection, joining a racist militia group, and posting on social media about his violent intentions. His schoolmates even joked that he was the kid most likely to shoot up the school. In the clear light of hindsight, it is argued that somebody should have done something. But what? The would-be shooter in Florida had as yet committed no crime. He truthfully checked all the boxes on the federal background check form—he had neither been indicted nor convicted of a felony, nor been in a mental institution, nor, so far as has been reported, used drugs. The criminal law has only a limited reach to forestall crimes that may or may not ever be committed.
One possible recourse is to make threats themselves criminal, even if unaccompanied by action. It has long been a crime to threaten the president, or to falsely threaten to bomb an aircraft. The rationale of such statutes is that the need to respond to the potential for real injury is itself a burden on society. As a practical matter, this kind of criminal statute allows the police to intervene and to get the threatener into some kind of imprisonment, psychiatric or otherwise. The Model Penal Code criminalizes “terroristic threats,” those made with the intent to intimidate another, to cause evacuation of a public place, or to cause public inconvenience. N.J.S.A. 2C:12-3 enacts the Model Penal Code provision, and our New Jersey statute already makes terroristic threats a crime of strict liability when there is a state of declared national or state emergency. The Legislature should consider a similar broadening of the required mens rea to include threats against schools and workplaces, which must now all be taken seriously. Query, though, whether the kind of “someday I’d like to” boast that was involved in the Florida case amounts to a criminal threat. At some point, particularly in the political context, the First Amendment imposes a requirement that the threat be imminent.
