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:
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.
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.