There is an interesting criminal case out of Hawaii where Jay Lowell, a diver who pulled off the breathing apparatus (regulator) of a conservationist, pleaded guilty to a misdemeanor. The case itself is different in a response to the filming by a coral reef conservation group For the Fishes, but also the specific charge: Terroristic threatening.
The incident occurred on May 8, 2014 when Lowell encountered Rene Umberger, director of the coral reef conservation group. She and colleagues were were videotaping Lovell and another diver as they collected fish for the aquarium trade. While such captures are legal, they are strongly criticized by conservationists for depopulating and harming the coral reef. The video below shows Lowell swimming quickly at Umberger and ripping out her regulator. Umberger quickly reinserted the regulator but called the police after the incident. She insisted that it was her long experience as a diver that saved her.
The criminal charge is not surprising. He should have been charged with simple assault. However, Hawaii County deputy prosecuting attorney Jeff Burleson instead used the terroristic charge. The expansion of terrorism charges have concerned civil libertarians for years. This is a case of straightforward assault, but prosecutors are now using such provisions to ramp up charges. The Hawaii statute says:
§707-716 Terroristic threatening in the first degree. (1) A person commits the offense of terroristic threatening in the first degree if the person commits terroristic threatening:
(a) By threatening another person on more than one occasion for the same or a similar purpose;
(b) By threats made in a common scheme against different persons;
(c) Against a public servant arising out of the performance of the public servant’s official duties. For the purposes of this paragraph, “public servant” includes but is not limited to an educational worker. “Educational worker” has the same meaning as defined in section 707-711;
(d) Against any emergency medical services provider who is engaged in the performance of duty. For purposes of this paragraph, “emergency medical services provider” means emergency medical services personnel, as defined in section 321-222, and physicians, physician’s assistants, nurses, nurse practitioners, certified registered nurse anesthetists, respiratory therapists, laboratory technicians, radiology technicians, and social workers, providing services in the emergency room of a hospital;
(e) With the use of a dangerous instrument or a simulated firearm. For purposes of this section, “simulated firearm” means any object that:
(i) Substantially resembles a firearm;
(ii) Can reasonably be perceived to be a firearm; or
(iii) Is used or brandished as a firearm; or
(f) By threatening a person who:
(i) The defendant has been restrained from, by order of any court, including an ex parte order, contacting, threatening, or physically abusing pursuant to chapter 586; or
(ii) Is being protected by a police officer ordering the defendant to leave the premises of that protected person pursuant to section 709-906(4), during the effective period of that order.
(2) Terroristic threatening in the first degree is a class C felony. [L 1979, c 184, pt of §1(2); am L 1989, c 131, §1; gen ch 1992; am L 2006, c 230, §31; am L 2007, c 79, §2; am L 2010, c 146, §2; am L 2011, c 63, §4; am L 2013, c 255, §1]
The second degree misdemeanor is simply defined as:
(1) A person commits the offense of terroristic threatening in the second degree if the person commits terroristic threatening other than as provided in section 707-716.
(2) Terroristic threatening in the second degree is a misdemeanor. [L 1979, c 184, pt of §1(2); gen ch 1993]
– See more at: http://codes.lp.findlaw.com/histatutes/5/37/707/III/707-717#sthash.1cFhqKec.dpuf
This places Lovell under probation with a threat of six months in jail for any violations.
Umberger insisted that she could have been killed because she was at a depth of about 50 feet (15 meters) and might have suffered an embolism if she had panicked and surfaced too quickly. Burleson insisted that, because Umberger felt threatening, he was free to call the incident a form of terroristic threatening. Ironically, Lowell also claimed that he felt threatened and responded in self-defense — a pretty implausible claim.
While I believe that Lowell was rightfully prosecuted, the expanding use of terrorism charges as a tactical move by prosecutors is highly disturbing. It is an example of how law experience unintended expansion through opportunistic moves by prosecutors. By ramping up such charges, prosecutors force people to plead guilty rather than face longer sentences. What Lowell did was despicable, but this looks much like pushing someone down stairs rather than a true terroristic threat.
What do you think?
Source: Daily Mail