Jackley, SFPD Make Thin Case for Terrorist Threat by Jaber

As we know, Attorney General Marty Jackley has charged Ehab Jaber with one count of making a terrorist threat. Being a Muslim gun owner’s lawyer will likely be a thankless task… but it may also be an easy win. Let’s review the charge, the law, the arrest affidavit, and the evidence, and see just how flimsy the terrorist threat charge may be.

In his April 21 complaint, Attorney General Marty Jackley says the defendant violated SDCL 22-8-13:

Attorney General Marty Jackley, complaint, State v. Jaber, Case #41CRI17-000282, filed 2017.04.21.
Attorney General Marty Jackley, complaint, State v. Jaber, Case #41CRI17-000282, filed 2017.04.21.

Highlighting the key language from the relevant statutes, the Attorney General contends the defendant “threaten[ed] to commit a crime of violence… with the intent to intimidate or coerce a civilian population.” Making such a terrorist threat is a Class 5 felony—five years, $10K fine, max. The Attorney General’s invocation of the language about “chemical, biological, or radioactive material, or any explosive or destructive device” seems out of place; Jaber displayed none of those items, only firearms, which SDCL 22-1-2 distinguishes from “destructive device” and “explosive.” The more language in SDCL 22-1-2(9) that might describe the defendant’s allegedly threatened crime of violence is “murder, manslaughter,… or any other felony in the commission of which the perpetrator used force, or was armed with a dangerous weapon….”

In the following affidavit in support of the arrest warrant, Sergeant Sean Kooistra of the Sioux Falls Police Department explains what he saw during his interaction with the defendant on April 9 and his subsequent review of three videos on the defendant’s Facebook page.

Sgt. Sean Kooistra, SFPD, Affidavit in Support of Arrest Warrant, State v. Jaber, #41CRI17-000282, 2017.04.21, p.1.
Sgt. Sean Kooistra, SFPD, Affidavit in Support of Arrest Warrant, State v. Jaber, #41CRI17-000282, 2017.04.21, p.1.
Sgt. Sean Kooistra, SFPD, Affidavit in Support of Arrest Warrant, State v. Jaber, #41CRI17-000282, 2017.04.21, p.2.
Sgt. Sean Kooistra, SFPD, Affidavit in Support of Arrest Warrant, State v. Jaber, #41CRI17-000282, 2017.04.21, p.2.
Sgt. Sean Kooistra, SFPD, Affidavit in Support of Arrest Warrant, State v. Jaber, #41CRI17-000282, 2017.04.21, p.3.
Sgt. Sean Kooistra, SFPD, Affidavit in Support of Arrest Warrant, State v. Jaber, #41CRI17-000282, 2017.04.21, p.3.

In paragraph 2, the officer describes the subject entering a parking lot, parking, backing out, driving quickly (but not, apparently, illegally) toward another lot, and parking. The officer deems this behavior “suspicious” but cites no threat.

Paragraph 3 describes no threat, only legal exercise of First and Second Amendment rights.

Paragraph 4 indicates the defendant was evasive about his name but not about the fact that he was armed or that he was recording the event. The officer says the encounter ended without incident.

Paragraph 6 describes on online video in which the defendant makes no threat.

Paragraph 7 finally gets to the only evidence of anything resembling a threat. It describes a second video, the one that drew significant attention in the media.

Watch that video at the bottom of my Monday post. “If you really want to be scared,” the defendant says before displaying any of his weapons, placing his entire display in the conditional. He does not point any of the weapons at the camera. He does not hold any of the weapons in a ready-to-shoot gesture. He displays ammunition but loads none of it in his weapons; instead, he places the ammunition back in the storage compartment in his vehicle.

His final words on the video are “This is f—ing bulls—.” He conducts this entire tirade while wearing a t-shirt that (as acknowledged by the officer in paragraph 8) clearly says, “I am only dangerous if you are stupid.”

The defendant says not one word in this video that indicates an intent to fire any of his weapons at anyone at the anti-Islamic event from which he was ejected or at anyone else. Simply, the defendant issues no threat, either verbal or physical. Rather, the defendant mocks those who would consider him a threat.

Paragraph 9 describes a third video in which the defendant describes his perception of the fear felt by the people attending the April 9 event and by the whole of “white America.” This video makes no threat; it shows the defendant’s belief that fear already runs rampant in society and his perception that such fear deserves mockery.

That’s all the evidence the affidavit presents. No evidence shows the defendant engaging in a crime of violence or preparing to commit a crime of violence. The evidence shows the defendant engaging in entirely legal conduct and expressing disdain for, if not disbelief at, the fear his legal conduct and his mere presence appear to arouse in other citizens.

If the above evidence is all the state has, the state had better drop the terrorism charge fast and focus on the meth charge.


31 Responses to Jackley, SFPD Make Thin Case for Terrorist Threat by Jaber

  1. mike from iowa

    Good on you, Cory. Someone certainly needs to tell Jefferson Beauregard Jackley how to do his job.

  2. I wonder where the pressure came from to charge this man for committing a terrorist threat when it appeared from the beginning that SFPD believed the man was not committing a terrorist threat. I have no doubt it had everything to do with the fact that he is Muslim.

  3. He (the accused) could only have made it worse had he been blah.
    He’s certainly right about the “terrified” part.
    And to think we’ll probably have to chose between either Marty Jackboot or kristi and whatever sane person the Democrats can sacrifice.

  4. Hey, when we leave links, can we give some context? Hickey’s Facebook post reads as follows:

    Man accused of terrorist threats: ‘I’ve lost everything’ https://t.co/yYtLIicTBs @argusleader / Let’s bless this guy and post his $2500 bond. I’ll put up $250. Anyone else in? He needs to know Christians love Muslims but take issue with Islam [Steve Hickey, FB post, 2017.04.25].

    That strikes me as a solid, respectable Christian sentiment. Hickey goes further than I am willing. I’m not posting bail for anyone; I’m just writing amateur pro bono briefs. ;-)

  5. Joe Nelson

    He was intimidating, and intentionally so.

    His thought process appeared to run along the line of “You think that a Muslim open carrying weapons is scary and terrifying? I disagree, however I am going to show you my collection of hand guns and assault rifles, which I acknowledge you will find scary and terrifying, and tell you to ‘Be scared’ and ‘Be terrified’.”

    Maybe I can recognize it because I am a parent, and I can tell very easily when one of my kids is antagonizing one another.

    Heck, If I know someone is afraid of spiders, and proceed to show them spiders saying “Be afraid, be scared”, I am clearing intentionally intimidating the person. When you do it with firearms though? That’s a crime. When you threaten an entire civilian population, as in the white Americans he mentioned, you cross into felony/terrorism territory. He intended to intimidate a civilian population, which meets the definition of a terrorist threat according to the law.

    Of course, it will be on the prosecution to show intent. I imagine the defense will state that he was joking and mocking. Not sure if that will suffice though. I suppose a jury will have to decide.

    For all you defending him, if you think he did nothing wrong, perhaps you can show your solidarity by driving to the same or similar parking lot with a car full of weapons, and broadcast live that if white America is afraid of Muslims who open carry, then they SHOULD “be scared and be terrified”. It evokes images of Selma, and sit ins, and bus strikes. Be the change! Call the ACLU, they might defend him pro bono! Do not rest until every American is free to publicly and facetiously threaten and intimidate civilian populations of every race with firearms!

  6. Tyler Schumacher

    Joe, who was he intimidating? Certainly not the people gathered there, as they would be some of the least likely people to see his live stream. That makes your analogy fall a little flat. What was he trying to gain from his supposed intimidation (typically a requirement to be considered intimidation)? If you don’t look too closely, then yes, you could get a sense of threat, displaying weapons, shouting expletives, and saying “Be afraid.” But if you take the time to actually listen to him, it is clear that no threat was made. Not the best of choices, but not a crime.

  7. Joe Nelson

    Tyler,
    The law says that intimidation constitutes a threat. He was intentionally being intimidating, a “You think I’m terrifying? I will show you terrifying!”

    His threat and intimidation was directed to the to his public audience on Facebook and the people in the conference, i.e. any person who thinks a Muslim who openly carries a firearm is dangerous, what he calls “white America”.

    Just because your target doesn’t see the video, doesn’t mean they are still not the target. I doubt the President of the United States watches a lot of live streamed videos on Facebook, but I am sure that if someone threatened him on such a video, that person would be visited very soon by law enforcement. So my analogy does not fall flat.

    As far as a requirement to be considered intimidation? Is that written somewhere? Does a bully seek to gain something when they bully, or can they do it just for the power they feel when the bully? I do not think one has to gain something in order to intimidate someone.

    I am sure the jury will be shown the videos, and be presented with arguments from both sides. We will have to wait and see what happens.

  8. When I get pulled over, the cop is in charge, not me. It’s yes sir, no sir, or I’m not sure about that – sir. If a guy wants to play head games with a cop, then he is an idiot who might actually be able to help set a precident to fellow idiots about what happens when they don’t perfectly comply with law enforcement like normal respectable people do.

    And if a guy happens to NOT be a ‘normal’ respectable person, it is still clearly in his self interest to play the part of one when talking to law enforcement – or his life can get real confusing – real quick.

    I learned this at 16 years old – watching how cops treated black people in the town I grew up in. If you act and look like an idiot, you’re going to get treated like one. That’s how the world works in every facet of society. Good luck bucking society, Mr. Jaber. You’re gonna need it.

  9. Tyler Schumacher

    Joe – The dictionary is one place it’s written. Gain was perhaps not the most fitting word, as you typically intimidate someone to get them to do something (and ‘requirement’ perhaps a tad strong, even with the qualifier).

    Was his video directed to the public, or was it a video open to the public but directed to his friends/followers showing his disgust with people’s fear?

    As you watch the video, do you honestly have any fear that he’s even contemplating any violence? I guess that’s our disconnect. I can’t find a way to feel threatened by the video.

  10. Why in the bloody heck is the guy driving around with an arsenal of guns? WTF?

  11. Joe Nelson

    test

  12. Joe Nelson

    Well, for some reason it will not let me post my comment, except for that test one. Let’s try it in batches then:

    Tyler,
    Dictionary? My stand by is the good old Merriam-Webster:

    Definition of intimidate
    intimidated; intimidating
    transitive verb
    : to make timid or fearful : frighten; especially : to compel or deter by or as if by threats

    No mention of getting or acquiring something, except possible eliciting an attitude or behavior from the victim?

  13. Joe Nelson

    I think it is clear that when he is saying “Be scared.” it is to the “white America” which is “f**king terrified”, especially the people whose cars he saw in the parking lot, and the people he recorded with his phone earlier when he was inside.

  14. Joe Nelson

    LOL, OMG. It would appear that the comments do not like the F-word. Your policy, Cory?
    any way, rest of comment:

    When I watch the video, I see an angry, frustrated, possible feeling marginalized man with access to a sizable arsenal, with no concern that he is coming off as scary and terrifying. I find it intimidating, and would not want to be around him when he is in such a mood with quick access to firearms. If he feels the need to brandish his weapons and be intimidating because he feels marginalized or misunderstood, how long until it does escalate into actual violence? He very much strikes me as a man who gets pleasure from upsetting the status quo and getting a reaction out of people. Maybe next time he would have fired off a few rounds into the air? Not hurting anyone, heck he could even load it with blanks. But it will sure make him feel powerful and important. Conjecture on my part, I know, but we don’t have a lot of info to work with.

    Is he contemplating any violence in this video? Hard to tell, but he is not being charged (to my knowledge) with conspiracy to commit a crime. He is being charged with making a terrorist threat, via intimidating behavior and words directed at a civilian population.

    I should say that I have never been into guns, or gun culture. I understand why it is a part of American culture, but I guess I always saw them as tools, and you only need one if you have a task to do where you need it. I have never felt intimidating by people open carrying, or when I see hunters with their guns and rifles. But, I have never heard one of them saying that I should be afraid, even in a joking manner, because they had a gun. Anyone from Texas on here? I hear there is a lot of open carry down there, and I would be curious as to your input on all of this.

  15. Joe Nelson

    Ahh, from the Comments policy “Cuss words are generally unnecessary.” I was just quoting the same source as you were, as seen in your screen shot. I am curious, is there a general cuss word filter, or are you able to go in and manually add words that will make a comment not post? I am tempted to test the system, intrigued by what words are off the table. Not here, maybe in the Policy post.

  16. Yeah, I try the F word every now on and then on here to see if the policy might ever change but it never does :( *sigh

    Joe, you are on the money.

    And, additionally, Jaber suffers from the same small penis syndrome that rural gun nuts do. They should find a lot in common with Jaber – fighting for their right to mass murder and pay the penalty later.

  17. It seems as in this video, that if you brandish a gun and do not point it at anyone, you are not guilty even in a state where that is forbidden. http://www.dailymail.co.uk/news/article-3801796/He-allowed-drive-away-alive-White-motorist-armed-GUN-filmed-driving-slowly-crowd-protesters-Charlotte.html Of course, the guy is a white guy with a gun, big difference. Jackley has shown that he is willing to financially break a person for the sake of politics as he has done with this innocent man. There was no threat. There is only injustice and retribution from our regime. Jaber is no more guilty than the protest marchers to Starbucks.

    Where is the NRA? As this is a clear government attempt to disarm a law abiding private citizens right to his 2nd Amendment, why is the NRA quiet on this matter? Jaber has a concealed weapons permit as he indicated, where is Stace Nelson and the blond trigger gal from Rapid City?

  18. Ya gotta try to prevent those mass murders somehow – some way. I’m with the cops on this one.

  19. So then you are okay with the police interpreting the Constitutional rights of individuals regarding the 2nd Amendment then, correct? If the police see anyone with gun posting a photo or video without making a threat against someone, that is grounds for arrest and forfeiture, correct? If police see an armed march, they should without fail, stop and disarm and then book the carriers as a threat to society regardless of gender, race or religion, correct? Seems kind of fascist to me and I am against that in all its forms. I support the 2nd Amendment and all the rest of the other ones.

  20. mike from iowa

    Where’s the NRA in all of this? Don’t Muslims have 2nd amendment rights? If terrorists are allowed to buy all the guns they want…..

  21. Tyler Schumacher

    Joe, yes, the especially part is what I was referring to. Which is why I said typically, and indicated that I did not do the best job wording my comment.

    Intimidation (which I still don’t see) covers the intent aspect of § 22-8-13. But you’re still missing the ‘threatens to commit a crime of violence…or an act dangerous to human life involving any use of chemical, biological, or radioactive material, or any explosive or destructive device’.

  22. Jerry is right on. Give us a white “guy driving around with an arsenal of guns,” and we’d be hearing all about his 2nd Amendment privilege to do so.

  23. Joe Nelson

    Tyler,

    22-1-2(9) “Crime of violence,” any of the following crimes or an attempt to commit, or a conspiracy to commit, or a solicitation to commit any of the following crimes: murder, manslaughter, rape, aggravated assault, riot, robbery, burglary in the first degree, arson, kidnapping, felony sexual contact as defined in § 22-22-7, felony child abuse as defined in § 26-10-1, or any other felony in the commission of which the perpetrator used force, or was armed with a dangerous weapon, or used any explosive or destructive device;

    22-18-1.1. Aggravated assault–Felony. Any person who:
    (1) Attempts to cause serious bodily injury to another, or causes such injury, under circumstances manifesting extreme indifference to the value of human life;
    (2) Attempts to cause, or knowingly causes, bodily injury to another with a dangerous weapon;
    (3) Deleted by SL 2005, ch 120, § 2;
    (4) Assaults another with intent to commit bodily injury which results in serious bodily injury;
    (5) Attempts by physical menace with a deadly weapon to put another in fear of imminent serious bodily harm; or
    (6) Deleted by SL 2005, ch 120, § 2;
    (7) Deleted by SL 2012, ch 123, § 4;
    (8) Attempts to induce a fear of death or imminent serious bodily harm by impeding the normal breathing or circulation of the blood of another person by applying pressure on the throat or neck, or by blocking the nose and mouth;
    is guilty of aggravated assault. Aggravated assault is a Class 3 felony.

    Perhaps brandishing weapons and saying “Be afraid.” and “Be f**king terrified” constitutes physical menacing, and since he was in the parking lot still, was in close enough in proximity (imminent) to inflict serious bodily harm.

    I patiently await the trial to see what arguments are made (if the trial is even open to the public).

  24. Joe, I see no reason that this trial would not be open to the public. If Jackley really thinks he has a case, he’ll want to be seen standing up to radical Islamic terrorism to win Trump’s favor and get a leg up on Noem in the GOP primary.

    Joe offers a reasonable (or at least not totally nuts) interpretation of the defendant’s speech act: the defendant waved guns in the proximity of a group of people to make them afraid.

    I also offer a reasonable (I will argue more so) interpretation of the same speech act: the defendant engaged in act act of protest to expose the hypocrisy and absurdity of the irrational fears held by some members of the public. As the shirt he wore in the video suggest, the only reason to be afraid of the defendant is a lack of understanding of the First Amendment and the Second Amendment.

    Our interpretations differ. Thus, there is reasonable doubt about the meaning of the defendant’s speech act. Thus, the defendant will walk, because the state cannot prove an “intent to intimidate or coerce a civilian population” beyond a reasonable doubt. (Joe, I appreciate your digging into “crime of violence” and “aggravated assault,” but I don’t think we get that far down if we can’t establish that the defendant’s actions satisfy the words of the “terrorist threat” statute.)

    The state has the affirmative burden to demonstrate beyond a reasonable doubt that the defendant issued a threat. The defendant issued no threat, as demonstrated by the videos. The defendant posed no threat, as affirmed by the officers who interacted with Jaber on the night of the events in question. The state will lose.

    Yeah, ACLU, you should take this case.

  25. [Yes, Joe, the comment widget includes an f-bomb filter. That does complicate discussing this case, but we’ll find a way, just like NPR. :-) ]

  26. Jerry—guy drives into a crowd, holds a gun outside his window to make it plainly visible to people on the scene? That seems more threatening than what Jaber did.

  27. But if we do follow Joe into the aggravated assault statute, check out this 2005 SD Supreme Court ruling that said that a bigger person standing a foot away from and towering over a smaller person and shouting for 3–4 minutes does not constitute “physical menace.” In this case, the defendant shows that he has deadly weapons, but he demonstrates no clear intent to use those deadly weapons. He appears to be making the point that his legal possession of those weapons is sufficient to arouse fear among other citizens, for which fear he cannot be prosecuted.

  28. bearcreekbat

    If Jabor’s motive or intent is the only disputed element of the offense, then he is cooked. It takes very little evidence to support a jury’s inference of the required evil intent.

    On the other hand, a gun is no more a deadly weapon than a knife, club, or car. They all have the potential to be used in a harmful and prohibited manner, but their mere existence doesn’t seem to threaten active or passive behavior.

    We have seen recent terrorist attacks with cars and trucks as the weapons of choice. Jabor drove a car. Is that enough, along with his Facebook rants, to be a terrorist threat?

  29. Kathy Bergquist

    “Men are afraid that women will laugh at them. Women are afraid that men will kill them.”

    ― Margaret Atwood

    Welcome to female-hood.

  30. Bear, I guess with no lawyer willing to take Jaber’s case yet, we’ll be stuck with a public defender to make that argument. I think that argument can win, but, as you say, to overcome the question of intent and the ease of jurors accepting the intent Jackley would superimpose on an easy outsider target, we’re going to need a Patrick Duffy to rise from the public defender corps.