(Source: MIRS.news, Published 02/14/2025) An appeals panel held Michigan’s statute that makes false threats of terrorism a crime is unconstitutional. 

In a published opinion from Court of Appeals Judge Michael J. Kelly, the panel agreed with defendant Michael Joseph Kvasnicka that the statute, MCL 750.543m, is unconstitutional because it doesn’t require the prosecution to prove that Kvasnicka acted recklessly when he sent a social media post threatening to shoot up a Trenton school. 

Wayne County Assistant Prosecutor Maria Miller said the prosecution disagrees with the opinion and will seek an appeal in the Michigan Supreme Court. 

“Our position is that the statute is not unconstitutional, it requires a true threat of terrorism. We clearly had that in the facts of our case,” she said in a statement to MIRS on Friday. “This opinion completely misconstrues Michigan and U.S. Supreme Court precedent.” 

If the ruling stands, it would mean prosecutors cannot bring charges under the statute as written. 

The statute says a person is guilty of making a terrorist threat if he or she threatens a terrorist act and “communicates the threat to any other person.” 

But the statute does not suggest a prosecutor “must prove that the defendant consciously” was aware that others could regard the statement as threatening violence. 

As a result, the case returns to the circuit court for dismissal of the charges. 

Kvasnicka, of Grosse Ile, was charged in September 2023 with making a false report or threat of terrorism when he sent a social media message to a young girl that she was “not gonna be laughing once I come to your school and shoot it up or blow it up like [C]olumbine.” 

The prosecution argued the dictionary defines “threat” as an expression of intent to inflict harm and asked the court to consider that jury instructions require a jury to find a defendant made a true threat. 

The panel said it was “perplexed” the prosecutor wants the court to rely the jury instruction when the “words of the statute … must be examined” to determine if it is unconstitutional. 

The panel wrote that while a jury is asked to consider how a threat is perceived by “‘others,’ its reference to a reasonable person makes clear that the jury is tasked with deciding what a reasonable person in the defendant’s shoes would have thought, not necessarily what the defendant would have thought himself.” 

That, the panel noted, is not aligned with U.S. Supreme Court standards, “which requires the prosecution to show a defendant’s subjective intent, by at least a standard of recklessness.” 

Appeals Judges Mark T. Boonstra and Allie Greenleaf Maldonado participated in the opinion.