Wisconsin Court Dumps Conviction Of Middle School Kid Who Drew A Picture Of A Bomb

from the whispering-fire-in-a-home-theater dept

The intersection of school administration and law enforcement leads directly to insanity. All logic goes out the window when school administrators come across something that makes them feel slightly uncomfortable. Adding cops to the mix doesn't help anything. It only serves to turn every mildly misbehaving student into a criminal.

We're here to talk about bombs. I'm sorry. Let me clarify. Not actual bombs. Drawings of bombs. Drawings created by students who are likely to draw bombs, guns, and general violent mayhem without actually wishing any of that on their fellow students.

It took a couple of rounds in court to actually set this right. We've covered similar insanity over drawings of bombs here at Techdirt before, like the (temporarily) indefinite suspension of an autistic student who drew a bomb that looked like something straight out of a Looney Tunes short.

This bomb drawing was a little more intricate but no more threatening than the round black bomb with a fuse we've all seen in any number of cartoons no one saw fit to prosecute. (h/t Ari Cohn)

The Wisconsin Court of Appeals has finally ended the madness that began with terroristic threat and disorderly conduct charges being leveled against a middle school student.

The decision [PDF] recounts the unfortunate chain of events that ultimately needed to be addressed by the penultimate level of the state's criminal justice system.

The court found the following facts. In 2018, A.N.G. and T.B. were classmates in a middle school summer school program. During class one day, T.B. created a drawing on a page in his science workbook. T.B. did all the drawing and writing, but A.N.G. contributed ideas.

The drawing contained T.B. and A.N.G.’s names, images of what appears to be a cartoon-style bomb, a building labeled “school,” and a body lying on the ground. Around these images are written the following words: “pigs,” “preplay,” “bomb,” and “gun.” The court determined that the content of the drawing “conveys a threat of bodily harm.”

The Appeals Court points out something the lower court mentioned, but erroneously failed to give appropriate weight during its handling of the case.

However, as will be significant in analysis below, the court also specifically found that T.B. and A.N.G. did not intend for the drawing to be “for public consumption.” Instead, the court found, T.B. and A.N.G. intended to keep it “private.”

If it's private, no one's attempting to threaten others. That undercuts the charges brought against the student, which rely on communication of a threat. Instead, the court assumed even a private sharing of violent ideas between two students was enough to satisfy the charges because anything containing bombs and whatever would be viewed as "threatening" by interlopers the creators never intended to share their drawing with.

Returning to the circuit court’s decision, the court stated that it considered it “impossible,” “in the atmosphere in which we live,” that “a student would create a document like this and not assume a reasonable person would interpret” it as a “threat” that was “a serious expression of an intent to do harm.”

Wrong, says the Appeals Court. The surrounding circumstances matter. A person entertaining themselves by drawing depictions of violent dismemberment in their own home cannot be considered "threatening" to others in the legal sense because there's no communication of these subjective "threats" to others. Just because a teacher saw it and decided to get involved doesn't change the legal math.

However, as discussed below, this observation assumes an intended recipient of, or (using the term from First Amendment doctrine) “listener” to, the document, and in this case there was no intended recipient-listener.

The state's arguments are nonsensical and the court gives them no sympathy.

The State argues that the drawing was a true threat because it was not created as part of a classroom assignment or a creative school-related expression. The State also contends that it was not mere hyperbole or an innocuous joke. Further, the State argues that the drawing was not reasonably intended to be kept private because it was reasonably foreseeable to A.N.G. that it would be seen in the school setting by school staff or other students who would interpret it as a serious expression of a purpose to inflict harm, and that, when it was discovered, school officials did reasonably interpret it this way.

The court says the state's argument inverts First Amendment protections to strip them from anyone whose communications are inadvertently witnessed by others. An inadvertent discovery is not the same thing as a distributed communication originating from the now-unintended "sender."

I see no reasonable way to construe the findings of the circuit court and the uncontested testimony at the hearing to reflect that A.N.G. meant to cause the drawing to come to the teacher’s attention, or to the attention of any other school staff or students other than T.B., its co-creator. Based on the circuit court’s findings and the uncontested evidence, the teacher’s awareness of the drawing and decision to demand it were just accidental from A.N.G.’s point of view.

There's a criminal prosecution involved and yet the school's actions -- once the disturbing artwork had been inadvertently discovered -- do not reflect the state's assertions that administrators felt justifiably threatened by their discovery. If the school felt violence was imminent, it certainly didn't act like it did.

[E]ven if I were to assume that school personnel could reasonably be classified as “listeners,” how these “listeners reacted to the” drawing (as Perkins refers to the first factor) does not weigh heavily towards classifying the drawing as a true threat. Based on the testimony of the teacher and administrators involved, the circuit court found that the drawing was “obviously concerning [to the school] and obviously the school took steps within the school setting to address these issues.” Yet, they did not take it so seriously that there was an evacuation or a search of the school. Further, instead of seeking to have A.N.G. removed from the school, administrators placed A.N.G. in an in-school suspension and did not impose more significant discipline. The assistant principal testified that she takes seriously all expressions that she construes to be threats, suggesting a low threshold for school reaction to any and all conduct that might represent a danger.

Constitutional rights for students may be limited but they're not nonexistent.

Weighing all of the above considerations under the Perkins factors, I conclude that A.N.G.’s private drawing was not a true threat in the constitutional sense. Based on all of the circumstances, a reasonable “speaker” in A.N.G.’s position would not foresee that a reasonable “listener”—someone he never in fact envisioned—would interpret the drawing as a serious expression of a purpose to inflict harm. Case law interpreting the First Amendment protects from prosecution the expressions under the particular facts here.

Away goes the delinquency petition tied to two trumped-up charges that never fit the crime the student never committed. When you put kids, cops, school administrators, and a post-9/11 "everything is a threat" mentality in the same room, idiotic decisions get made and lawsuits get filed. A little bit of rational thinking would go a long way. Unfortunately for this student, it took two years for cooler heads to prevail.

Filed Under: bombs, drawings, kids, law enforcement, schools, wisconsin


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  • icon
    That One Guy (profile), 3 Jun 2020 @ 3:08pm

    Way to blow your own argument/foot off...

    Yet, they did not take it so seriously that there was an evacuation or a search of the school. Further, instead of seeking to have A.N.G. removed from the school, administrators placed A.N.G. in an in-school suspension and did not impose more significant discipline.

    'They were a terrible threat to the school and those in it!'

    'And how did you respond to that threat?'

    'We punished them by making them stay in the school for longer than they otherwise would have.'

    'The building you claimed you were concerned that they were going to destroy or otherwise cause significant damage to?'

    'Yes.'

    'And did you perform any search for an actual bomb, or attempt to prevent other students from being harmed by removing them from the building?'

    'Well... no... that would have required work and caused a huge hassle, so we didn't see any reason.'

    'But you maintain that the student was a threat?'

    'Oh absolutely.'

    reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 4 Jun 2020 @ 7:17am

      Re: Way to blow your own argument/foot off...

      'Why?'

      'Because the student was a threat. They had impure thoughts about the school building.'

      'OH! That changes everything. Guilty as charged. Now what is their greatest fear?....'

      reply to this | link to this | view in chronology ]

  • icon
    aerinai (profile), 3 Jun 2020 @ 3:21pm

    Just glad they never saw the depraved cartoons we drew in high school...

    reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 3 Jun 2020 @ 4:40pm

      Re:

      Yeah, I hate how often I now get to say, "when I was that age" when lamenting how absurd things are for kids these days.

      In middle school I would draw violent depictions of 2d landscapes full of helicopters shooting people and blowing up mountain bases with body parts flying and people stabbing each other with swords and bodies dissolving in acid vats.

      If a teacher ever saw them, I was told to get back to work on my assignment. The drawings weren't confiscated, reported, or concerning.

      reply to this | link to this | view in chronology ]

      • identicon
        Matteste, 4 Jun 2020 @ 12:20am

        Re: Re:

        Similar story here.

        I remember creating a clay figure depicting 9/11 when I was 12 and it didn't even raise an eyebrow from my teacher. Been similar with other stuff before that as well.

        reply to this | link to this | view in chronology ]

  • icon
    tz1 (profile), 3 Jun 2020 @ 3:53pm

    It might have been another Columbine

    They dont' stop bullying - the School teaches authority is useless and they will let people beat you up early. There was also the kid that ate his pop-tart into the shape of the gun. And the kid in texas that repackaged a radio shack clock and was hauled out in handcuffs (the right made excuses - he was a muslim).

    reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 4 Jun 2020 @ 11:28am

      Re: It might have been another Columbine

      They dont' stop bullying - the School teaches authority is useless and they will let people beat you up early.

      Because if they try to stop it they'll, and the taxpayers by extension, be sued by the bully's idiot parents for daring to lay a finger on their "precious" child. With extra damages extracted from the district's general fund for the irrecoverable harm caused by their brat's mental distress over the "ordeal."

      There was also the kid that ate his pop-tart into the shape of the gun.

      Because if they did nothing and a parent found out, they'd be sued for "endangering the lives of the students" by not taking such obvious threats seriously. Let alone what would happen if there was an actual shooting afterwards.

      And the kid in texas that repackaged a radio shack clock and was hauled out in handcuffs (the right made excuses - he was a muslim).

      Because..... yeah. That's pure racism. As well as religious favoritism. The parents should be grateful the kid wasn't shot by a responding SWAT team. Not that it is justified, but again, because all legal hell would break loose if that kid so much as looked at another student the wrong way afterwards.

      Your entire complaint is summed up by "Because the parents would sue the pants off of the school district otherwise. They can't even fund a school let alone a lawsuit. Of course they overreact." Again, blame the parents. They demand their version of life be taught to their kid, but are unwilling to fund it, use the school as a daycare, are uncaring about kid's behavior or academic progress (as long as it doesn't make them look bad), and if anything happens the school must have a zero-tolerance response, or they'll be handed their ass in court by said parents. Effectively, "it's a raise my kid, the way I say, for me." attitude that is responsible for all of this crap.

      reply to this | link to this | view in chronology ]

  • icon
    McGyver (profile), 3 Jun 2020 @ 4:09pm

    Wow, a 2D drawing...

    reply to this | link to this | view in chronology ]

  • icon
    virusdetected (profile), 3 Jun 2020 @ 4:22pm

    Stupidity knows no bounds, but we do need to be concerned about the prevalence of idiocy among those who claim to teach our children, because they are teaching that those in authority are idiots.

    Oops, they seem to be teaching reality.

    reply to this | link to this | view in chronology ]

  • icon
    Upstream (profile), 3 Jun 2020 @ 5:26pm

    There should be more to this story

    There are so many things that had to have gone terribly wrong here. Even after the horrible judgement of the teachers / school administrators:

    What kind of power tripping insane prosecutor files these charges? Where is that prosecutor now? Unfortunately, probably still prosecuting.

    IANAL, but wouldn't any competent defense attorney file a motion to dismiss the charges? Wouldn't any reasonable judge accept it?

    And what are we to make of the judge or jury that decided to convict?

    All of this points to another serious flaw in the legal system: When a higher court writes a decision like this, they almost always omit the names of the people who's bad actions they are overturning. They say "the State" without naming the prosecutor. They say "the Court" without naming the judge. They say "the Defense" without naming the lawyer. This can make it very difficult and time-consuming, but not impossible, to to the research and find out who the original players in the travesty were. And they do this intentionally. It amounts to attempting to cover-up miscarriages of justice. More evidence that the whole system is rotten.

    reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 3 Jun 2020 @ 7:58pm

      Re: There should be more to this story

      ... the judge in the circuit court is Troy L. Nielson... as pointed out in the very first line of the decision...

      Veronica Isherwood is the district attorney for the case... as identified in 10 seconds... of which 5 were spent in realizing that I couldn't copy/paste from the decision...

      And the defense did move to dismiss...as stated in the 2nd paragraph of the decision...

      reply to this | link to this | view in chronology ]

      • icon
        Upstream (profile), 3 Jun 2020 @ 8:43pm

        Re: Re: There should be more to this story

        Thanks to the AC for actually looking into the decision. I had not tried. When I did try opening it in Tor browser it did not open, even after disabling NoScript. I could open it in Firefox. However a search of the document did not turn up any instances of "Veronica" or "Isherwood." And I could copy and paste from the document. Hmm. Website or browser weirdness, I guess. I think most of my comment remains valid, though.

        reply to this | link to this | view in chronology ]

        • icon
          Tanner Andrews (profile), 7 Jun 2020 @ 1:34pm

          Re: Re: Re: There should be more to this story

          Thanks to the AC for actually looking into the decision. I had not tried.

          Yeah, that was my first response to the story: let me direct the browser to download the PDF pointed to by the link in the story. My second response was to open the resulting PDF in a PDF viewer.

          Credit to the appeals judge (evidently in some cases Wisconsin allows for a 1-judge ``panel'') for seeing that the state's case was unsupportable. Points off for taking 19 pages and yet never saying ``talk to your respective doctors about brain implants''.

          reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 3 Jun 2020 @ 5:35pm

    In the atmosphere in which we live must be the new "in this day and age". The excuse for so much authoritarianism - authoritarianism which is the true creator of the atmosphere in which we live in this day and age.

    reply to this | link to this | view in chronology ]

  • identicon
    Pixelation, 3 Jun 2020 @ 6:10pm

    Pendulum

    Over reaction because, bad things happened and we can't ever let it happen again. Automatic human response without any introspection. Kind of like our "Reactionary-in-Chief".

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 3 Jun 2020 @ 6:48pm

    This looks like a job for...

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 3 Jun 2020 @ 11:58pm

    It's all about responsability. Or rather, the wish of the school to not have any.

    I tried to think about what the reasoning is behind the actions the school has taken, and what I came up with is the following dilemma:

    • If they didn't report this, and somehow the kids did perform a terrorist act (then or later), they will be held responsible for not reporting it.
    • If they do report it, it's 'out of their hands'.

    So by reporting it they had an 'easy out' of responsability.

    The real responsable thing for the school to do would have been to sit down with the child (and possibly their parents) and have a little talk about it.

    But that would have been extra work...

    reply to this | link to this | view in chronology ]

  • icon
    Ehud Gavron (profile), 4 Jun 2020 @ 4:46am

    Quick question about the Constitution...

    I haven't had a social studies class in a while so maybe someone can help refresh me.

    Constitutional rights for students may be limited...

    Where in the Constitution does it say rights don't apply to students or that those rights are limited, and why would we beg that question?

    E

    reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 4 Jun 2020 @ 6:55am

      Re: Quick question about the Constitution...

      There have been a number of court cases in the past that give the school administrators power to ignore a student's rights...

      • warrantless searches of a student's locker
      • school newspapers being told what they can and cannot print by the school admin.

      I understand some of the arguments made for this but in general I do not agree with how most of these are handled. Rather than haul a student off in cuffs or whatever this can be used as a teaching experience... you know... what schools are supposed to do.

      By going down the road they decide to take... cuffs/suspension/etc... you take the chance of making the student more disenfranchised. They should learn why what they did (point a finger gun, draw a bomb) is problematic in today's environment. Because I said so is not an valid answer. From one point of view what was done was innocuous and now you are just causing confusion.

      reply to this | link to this | view in chronology ]

    • icon
      Thad (profile), 4 Jun 2020 @ 10:10am

      Re: Quick question about the Constitution...

      There have been numerous Supreme Court rulings that schools have the right to restrict student speech beyond what state entities are typically allowed to restrict under the First Amendment. Ken White had a good episode on the subject in an episode of his podcast, Make No Law: The Schoolhouse Gates.

      Morse v Frederick is a (relatively) recent case where the SCOTUS ruled, 5-4, that a school was allowed to punish a student for holding up a sign that said "BONG HITS 4 JESUS".

      I think it's clear from context that when Tim says "Constitutional rights for students may be limited," that's a factual statement, not an endorsement. Whether or not we agree with the limitations the Supreme Court has allowed on student speech, the fact remains that the Court has allowed those limitations, and that's the law of the land as it currently stands.

      reply to this | link to this | view in chronology ]

  • icon
    Bloof (profile), 4 Jun 2020 @ 5:04am

    This sure is the right way to go about things if you want to stop school violence, not gun control measures, not genuine attempts to care for the mental health of students and fight bullying and toxic masculinity... Legal action over pictures of bombs, that's the ticket!

    reply to this | link to this | view in chronology ]

    • identicon
      dr evil, 4 Jun 2020 @ 5:27am

      Re:

      there is where we went wrong... decades of blaming the tools (guns), believing that toxic masculinity is a thing ... and more. Sociopaths and psycopaths DEPEND on people to disarm themselves, to believe that some other cause (society did it to them) etc to empower themselves. and you all fell for it.

      the only way that has EVER worked was to remove (excise) the abnormality.

      reply to this | link to this | view in chronology ]

  • identicon
    Bobvious, 4 Jun 2020 @ 5:38am

    "It took a couple of rounds"

    "TRUMPed-up charges"

    Hey this standup routine is just writing itself.

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 4 Jun 2020 @ 4:26pm

    This is the same kind of B.S. as making a GUN from your hand which a kid did and got suspended or something like that. It's been a few years. Ya, 2014, 10-year-old boy Suspended from school for making a Finger Gun. There's another in 2013 with a 6 year old suspended from Elementry School for his finger gun.

    You can Google this stuff up. It's nothing NEW. It has nothing to do with TRUMP. This is how insane schools have gotten over the years. This was happening under OBAMA!!!! Not that it's Obama's fault either. This is a normal thing young kids do. I did it myself long ago. I sure have no interest to go around shooting people. If you try breaking into my house, well, see how well that works out. Protecting myself and family!!!

    Finger guns are nothing. Call of Duty and other types of games like that are more real. I used to be a big quake 3 Arena gamer back in the day. None of this stuff made me want to go out and shoot people. In fact, it's the last thing I want to do. I will if forced to though. I think the biggest issue is so many single-parent homes.

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 4 Jun 2020 @ 7:04pm

    We need more involuntary commitment

    Not for the kid but the chickenshit administrators out there. Clearly if they are so irrational that a mere drawing of a bomb is a bomb threat and yet they don't evacuate in the face of a bomb threat they are clearly a danger to self and others given the complete lack of internal consistency. They might see a kid chasing after a ball into the street and decide the best course of action is to swerve onto the sidewalk and hit the kid to prevent them from running into the road with such fractured logic!

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 15 Jun 2020 @ 6:05am

    Hard To Know What To Do

    Criminal charges do seem harsh, but it's also hard to know where to draw the line with a student. This student had also been disciplined for a prior incident where he told a classmate to move or he would "turn this hallway into a shooting gallery" at what point do threats and drawings warrant legitimate concern?

    reply to this | link to this | view in chronology ]


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