COA affirms juvenile adjudication, finds that juvenile’s writings were “true threats”
State v. I.T.S., , 2025AP2517, 6/17/26, District II (ineligible for publication); case activity
Although I.T.S. argues that his writings composed during an in-school suspension were private and not true threats for the purposes of the First Amendment, COA affirms.
After Ira’s special education teacher caught him with a vape on school grounds, he was sent to serve an in-school suspension. (¶6). There were three sets of writings later discovered in the in-school suspension room. First, Ira made “a drawing with a gun and knives.” (¶7). Ira was warned that this drawing could get him in trouble if it was “taken out of context.” (¶8). Second, there was a folded stack of papers on Isaac’s desk on which Ira had written “Don’t open unless you got permission.” (¶9). The note stated “Plan to drop trap and Z spades on spring break.” (¶9). Third, Ira had hidden another folded paper inside the ceiling, which contained an alleged “hit list.” (¶10). The note contained further writings which, the State later argued, suggested a plan to commit some kind of criminal act. (Id.).
On appeal, Ira argues that the State failed to prove these were “true threats” as required by both the jury instructions for the charged offense (947.019(1)(e)) and the First Amendment as refined in the recent Counterman (SCOTUS) and Kindschy (SCOW) decisions. COA is unpersuaded.
Under the controlling case law, true threats are “serious expressions conveying that a speaker means to commit an act of unlawful violence.” (¶29). This requires application of both an objective and subjective test. Under the objective prong, courts look to the totality of the evidence to determine what the statements convey to a speaker on the other end. (¶30). Here, school officials took the notes seriously. (¶32). Likewise, the fact that Ira was arrested for these statements means they were taken seriously and, therefore, that they were objectively true threats. (Id.). Even though the alleged targets on the “hit list” testified and denied being scared, this is written off as teenage “bravado.” (Id.). Moreover, COA also places emphasis on the fact that this occurred at school, a factor that is “worthy of consideration” given the societal problem of gun violence in schools. (¶34). Moreover, COA is not persuaded by Ira’s argument that he did not “deliver” these threats. (¶33). Despite the fact that Ira stapled the notes shut, hid one in the ceiling, and wrote “do not open without permission” on another, COA distinguishes these from private writings found in a diary and claims they were “clearly intended to be seen by someone.” (Id.).
The subjective prong of the true threats analysis asks whether the speaker acted recklessly in making the statements at issue. Here, COA is satisfied that “Ira was aware of the concerns these notes would cause.” (¶35). Ira acknowledged his drawing of guns and knives could cause concern, referenced “cops” on another writing and, by hiding the notes, signaled his awareness of the riskiness of his conduct. (Id.).
Finally, COA dispatches Ira’s remaining arguments about the other elements of the substantive offense. These notes clearly created an “unreasonable risk” of public panic or fear and, given COA’s analysis thus far, Ira was aware of that risk. (¶36).
Notably, COA does not meaningfully discuss the unpublished authority apparently relied on by ITS, COA’s prior decision in A.N.G., where COA determined that a writing in a school workbook–shared with another classmate–was nonetheless a private writing never delivered and therefore not a “true threat.” The two cases seem diametrically opposed; we predict this will be the hook of I.T.S.’s petition for review.
We would also be remiss if we did not point out an interesting appellate issue for anyone litigating a similar “true threats” case. In A.N.G., the parties agreed, and COA applied, de novo review in determining whether these were “true threats.” Here, COA applies a more deferential standard of review. A lengthy footnote from A.N.G. suggests some uncertainty with respect to this issue.
Moreover, it is also worth noting the apparent circularity of the arguments against I.T.S. In an era of zero tolerance policies, and in a case where the teacher testified “a threat is a threat and I have to take everything seriously,” we wonder whether there’s any room for a child under these circumstances to ever claim there writings were not “true threats.”
We are, of course, sensitive to the concerns noted throughout the opinion about violence on school grounds. But these are not new concerns and SCOW already addressed, and rejected, such arguments in its Douglas D. decision, where it protected the right of a child to author a story on school grounds depicting violence against a specific teacher. We predict a petition for review on this case and will be monitoring future developments.