Alex Romero, an ex-con with “305” tattooed on his right eyelid, is accused of threatening an off-duty Hialeah police officer picking up her daughter at daycare.
That threat, prosecutors say: Romero pointed a finger at her like a pistol and blurted something out of an action B-movie: “Officer Hernandez, I got you now!”
Officer Scarlett Hernandez had past run-ins with Romero. The department took the finger gun seriously. Detectives arrested Romero under a 2016 Florida law that made threatening cops, judges, and even firefighters with “death or great bodily harm” a misdemeanor crime.
But now, the Miami-Dade Public Defender’s Office is challenging the constitutionality of the law, saying it’s too broad and infringes on constitutionally protected free speech. In court filings, one his lawyers chalked it up to nothing more than “trash talk” – crude perhaps, but lawful.
“As almost everyone who was ever a child can testify, no one has ever been killed or injured by forming fingers into the shape of a gun and dropping the hammer (thumb),” Assistant Public Defender Paul Nuñez wrote. “There is no objective true threat here from that gesture.”
A hearing on the issue is scheduled for July 17.
In all, the Public Defender’s is challenging the law in at least four cases, the latest in a long history of complicated legal fights across the county over the limits of free speech – and what actually constitutes a “true” threat.
Over the past half-century, the U.S. Supreme Court has issues several major decisions regarding threats and free speech, but none have clearly defined how authorities should view a suspect’s intent when issuing a supposed threat. And states across the country have different laws governing threats, some that outline how to determine the intent of a suspect, others that don’t, said J. Josh Wheeler, the director of the Thomas Jefferson Center for the Protection of Free Expression.
“The state of the law when it comes to threats is muddy,” Wheeler said.
The landmark threat case involved a teen named Robert Watts, protesting the draft and the Vietnam War in 1966, told a rally that “if they ever make me carry a rifle the first person I want in my sights is LBJ.” He was convicted in federal court of threatening to kill President Lyndon Johnson.
The U.S. Supreme Court reversed the conviction, saying Watts’ statement was protected as “a kind of very crude offensive method of stating a political opposition to the President.” Watts words were not a “true threat” – but the justices did not actually define what was.
So defining it remains a perpetual conundrum for law enforcement and the courts, especially in the digital age, when social-media posts seen by the entire world can be interpreted differently by different people.
Just two years ago, the U.S. Supreme Court overturned the conviction of a Pennsylvania rapper who posted violent rap lyrics on Facebook that his ex-wife felt threatened her. Justices did not rule a federal law unconstitutional, but did say prosecutors did not do enough to prove his criminal intent.
That decision also led to the overturning of a conviction against a Broward woman who e-mailed and called a talk-radio show to hint at possible mayhem.
In South Florida, several state threat cases have made headlines.
That’s what happened last year when a West Miami-Dade teenager posted “I’ll kill u sergeant” on a Miami-Dade Police broadcast being live-streamed through the social-media app Periscope. The teen, Jean-Michael Montenegro, accepted a plea deal, probation and anger-management classes.
Montenegro was charged under a Florida law that makes it a felony to issue a written threat to kill or do bodily harm to anybody, not just public servants.
Just this week, a Miami Gardens man was arrested on the same felony charge after police said he used Facebook to threaten to kill Miami State Rep. Jose Felix Diaz. The arrest came two weeks after a politically disgruntled man shot a U.S. congressman and four others during a baseball practice in a Washington D.C. suburb.
“For public officials, the threat from the public is very real,” said Diaz, who supports all the laws on the books that protect elected leaders and law enforcement.
There’s another Florida law on the books that also makes it a felony to threaten a public official with “the intent to influence” their job.
In Romero’s case, however, he was charged under a Florida law that is not a felony, but a misdemeanor and is aimed at all threats – not just written ones – specifically against cops, prosecutors, judges, and elected officials.
Passed last year with little fanfare and no opposition, the law makes it a misdemeanor crime for anyone “who threatens” a public official “with death or bodily harm.” The law isn’t aimed specifically at written threats, and does not outline any specific intent.
That doesn’t sit well with Wheeler, of the Jefferson center.
“I think it’s a bad idea when a government can throw someone in jail for just being stupid when they don’t have any intent to make someone feel threatened,” Wheeler said.
And Romero’s words – and the intent behind them – are far from clear, say his public defenders.
The 26-year-old has a long rap sheet, including a two-year prison stint for burglaries and selling marijuana. He was known to Hialeah officer Hernandez.
On April 12, 2017, she was off-duty and picking up her child at daycare. As she loaded the child in the back seat of her car, according to police, a car pulled up with Romero seated in the back seat.
The window rolled down. “Officer Hernandez, I got you now!” Romero yelled, while making a gun gesture,” according to prosecutors.
His lawyers suggest Romero wasn’t stalking Hernandez and likely happened upon her by chance.
But for prosecutors, Hernandez’s own fear is what matters. She had brushes with Romero before and “took this threat seriously, especially considering she was with her child at her child’s daycare,” prosecutors wrote in a motion defending the law.
Romero isn’t the only case being challenged by the public defender’s office.
In late July, a Miami-Dade judge will consider the case of Shelton Floyd, 35, who is accused of threatening two Miami officers in Overtown while handcuffed and inside his car.
“I got that 762 and that 45 at the crib for you,” he allegedly said, using street slang for an AK47 rifle and a handgun.
He is also alleged to have said: “Ni**a I will f*** you up. I wish I had that 762 on me ni**a I would kill your ass” and “I have seen so much dead bodies one more won’t be nothing.”