If this opinion indicates that it is “FOR PUBLICATION,” it is subject to 

revision until final publication in the Michigan Appeals Reports.

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S T A T E O F M I C H I G A N

C O U R T O F A P P E A L S

PEOPLE OF THE STATE OF MICHIGAN,

Plaintiff-Appellee,

FOR PUBLICATION

June 24, 2021

9:05 a.m.

v No. 354369

Chippewa Circuit Court

LUCAS DANIEL GERHARD, LC No. 19-003949-FH

Defendant-Appellant.

Before: JANSEN, P.J., and M. J. KELLY and RONAYNE KRAUSE, JJ.

RONAYNE KRAUSE, J.

In this interlocutory appeal, defendant appeals by leave granted1the order denying his

motion to quash the charge of making a threat of terrorism, MCL 750.543m, on which he was 

bound over from the district court. Importantly, the issue is not whether defendant actually made 

a threat of terrorism, which would be a question for the trier of fact. Rather, the issue is whether, 

on these facts, defendant can be charged at all. The issue before us turns on whether a social media 

post made by defendant can constitute a “true threat.” We affirm.

I. FACTUAL BACKGROUND

Defendant was a student at Lake Superior State University (LSSU), which has a unique 

policy that allows students to bring weapons onto campus if the weapons are immediately 

registered and stored with the public safety office. On August 22, 2019, defendant posted an image 

to his “story” on Snapchat—a social media platform that allows users to send pictures, with or 

without text, that can be viewed by the user’s registered “friends” for 24 hours before the image 

disappears. Defendant posted an image depicting an AR-15 semi-automatic rifle with an attached 

bayonet, along with text stating: “Takin this bad boy up, this outta make the snowflakes melt, aye? 

And I mean snowflakes as in snow [winky face emoji].” Two LSSU students saw the post and 

alerted public safety. Both students expressed the belief that the word “snowflakes” referred to 

 

1 People v Gerhard, unpublished order of the Court of Appeals, entered November 19, 2020 

(Docket No. 354369). 
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Democrats or liberals, which defendant later confirmed was accurate. One student felt that the 

post was inappropriate, although not threatening, but the second student testified that the text made 

her believe that defendant intended to use the gun and shoot liberal students. Defendant reported 

that he took the post down after he learned that it could be interpreted as a threat.

Defendant arrived to campus the following day and checked in his AR-15 rifle with public 

safety at approximately 8:00 a.m. Two police officers questioned defendant about the post in his 

dormitory room later that afternoon. Defendant confirmed that “bringing this bad boy up” referred 

to his bringing the AR-15 to campus, and that “snowflakes” referred to Democrats. However, 

defendant stated that by “melt” he meant that he wanted to make the Democrats’ “minds melt”

when they found out that he was bringing a gun to school. Defendant was arrested the following 

day and charged with making a threat of terrorism pursuant to MCL 750.543m.

At the preliminary examination, defense counsel argued that the charges were a violation 

of defendant’s rights under the First Amendment, that the anti-terrorism statute was vague and 

overbroad, and that the statute did not apply because defendant’s Snapchat post was not a threat 

of terrorism. The district court disagreed, holding that MCL 750.543m had been interpreted by 

higher courts as constitutionally valid, and the question of whether defendant’s statement 

constituted a true threat was a question of fact for the jury. The district court found probable cause 

to believe that the elements of MCL 750.543m had been met, and it bound defendant over. 

Defendant filed a motion to quash the charge, arguing that the First Amendment protected his 

speech and that the district court therefore abused its discretion by binding defendant over. The 

circuit court disagreed and denied defendant’s motion. 

II. STANDARDS OF REVIEW

“A district court magistrate’s decision to bind over a defendant and a trial court’s decision 

on a motion to quash an information are reviewed for an abuse of discretion.” People v Dowdy, 

489 Mich 373, 379; 802 NW2d 239 (2011). A trial court abuses its discretion by choosing an 

outcome that falls outside the range of reasonable and principled outcomes. People v Babcock, 

469 Mich 247, 269; 666 NW2d 231 (2003). “A trial court necessarily abuses its discretion when 

it makes an error of law.” People v Duncan, 494 Mich 713, 723; 835 NW2d 399 (2013). “Whether 

conduct falls within the scope of a penal statute is a question of statutory interpretation,” which 

we review de novo. People v Flick, 487 Mich 1, 9; 790 NW2d 295 (2010). “Questions involving 

the constitutionality of a statute are also reviewed de novo.” People v McKinley, 496 Mich 410, 

415; 852 NW2d 770 (2014).

III. CONSTITUTIONALITY OF MCL 750.543m

Defendant first asserts that MCL 750.543m is unconstitutional. We disagree.

Defendant was charged with making a threat of terrorism under MCL 750.543m of the 

Michigan Anti-Terrorism Act, MCL 750.543a et seq. MCL 750.543m provides:

(1) A person is guilty of making a terrorist threat or of making a false report 

of terrorism if the person does either of the following:
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(a) Threatens to commit an act of terrorism and communicates the threat to 

any other person.

(b) Knowingly makes a false report of an act of terrorism and communicates 

the false report to any other person, knowing the report is false.

(2) It is not a defense to a prosecution under this section that the defendant 

did not have the intent or capability of committing the act of terrorism.

(3) A person who violates this section is guilty of a felony punishable by 

imprisonment for not more than 20 years or a fine of not more than $20,000.00, or 

both.

MCL 750.543b(a) defines an “act of terrorism” as a

willful and deliberate act that is all of the following:

(i) An act that would be a violent felony under the laws of this state, whether 

or not committed in this state.

(ii) An act that the person knows or has reason to know is dangerous to 

human life.

(iii) An act that is intended to intimidate or coerce a civilian population or 

influence or affect the conduct of government or a unit of government through 

intimidation or coercion.

MCL 750.543z provides: “Notwithstanding any provision in this chapter, a prosecuting agency 

shall not prosecute any person or seize any property for conduct presumptively protected by the 

first amendment to the constitution of the United States in a manner that violates any constitutional 

provision.”

Defendant properly recognizes that this Court has already held MCL 750.543m to be 

constitutional, albeit with some clarification. In People v Osantowski, 274 Mich App 593, 601-

605; 736 NW2d 289 (2007) (Osantowski I), rev’d in part on other grounds 481 Mich 103 (2008) 

(Osantowski II), this Court explained that the Legislature’s use of the word “threat” was meant as 

a reference to what the United States Supreme Court has defined as “true threats,” which are not 

constitutionally protected speech. A true threat “encompass[es] those statements where the 

speaker means to communicate a serious expression of an intent to commit an act of unlawful 

violence to a particular individual or group of individuals.” Virginia v Black, 538 US 343, 359; 

123 S Ct 1536; 155 L Ed 2d 535 (2003). This interpretation was “further bolstered by the existence 

of MCL 750.543z,” which prohibits prosecution for presumptively constitutional speech. 

Osantowski I, 274 Mich App at 603-604.

Defendant contends that Osantowski I was wrongly decided and an exercise in judicial 

legislation. We disagree. The First Amendment, applicable to the States through the Fourteenth 

Amendment, provides that the government “shall make no law . . . abridging the freedom of 

speech.” US Const, Am I. See also Black, 538 US at 358. “If there is a bedrock principle
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underlying the First Amendment, it is that that the government may not prohibit the expression of 

an idea simply because society finds the idea itself offensive or disagreeable.” Texas v Johnson, 

491 US 397, 414; 109 S Ct 2533; 105 L Ed 2d 342 (1989). Therefore, statutes that criminalize 

speech “must be interpreted with the commands of the First Amendment clearly in mind.” Watts 

v United States, 394 US 705, 707; 89 S Ct 1399; 22 L Ed 2d 664 (1969). “The protections afforded 

by the First Amendment, however, are not absolute, and we have long recognized that the 

government may regulate certain categories of expression consistent with the Constitution.” 

Black, 538 US at 358. One of those categories is “true threats.” Id. at 359-360. Furthermore, “a 

presumption exists that a statute is constitutionally sound, and this Court will construe it as such

unless its unconstitutionality is clearly apparent.” People v Newton, 257 Mich App 61, 65; 665 

NW2d 504 (2003) (quotation marks and citation omitted).

We decline to revisit Osantowski I. See MCR 7.215(J). In any event, we are unpersuaded 

that doing so would be warranted. Our clarification in Osantowski I, 274 Mich App at 603, that 

MCL 750.543m applies only to “true threats” was a reasonable and supported interpretation of the 

existing language of the statute that rendered it consistent with the First Amendment and with 

MCL 750.543z. Further, because the definition of “act of terrorism” under MCL 750.543b(a) and 

the requirements of MCL 750.543m encompass the elements identified in the definition of a “true 

threat” expressed in Black, 538 US at 359-360, our interpretation in Osantowski I rendered MCL 

750.543m constitutionally valid. 

IV. APPLICABILITY OF THE FIRST AMENDMENT

Defendant next argues that the First Amendment applies to this matter. We agree in part. 

As discussed, the First Amendment is applicable to the states and prohibits the states from 

punishing speech for being offensive or disagreeable. There is no doubt that defendant’s charge 

arises out of “speech” that defendant made, so the First Amendment applies to this matter. 

Nevertheless, as also discussed, the First Amendment’s protections are not infinite. The First 

Amendment permits some content-based restrictions in a handful of categories of speech, 

including “advocacy intended, and likely, to incite imminent lawless action; obscenity; 

defamation; speech integral to criminal conduct; so-called ‘fighting words;’ child pornography; 

fraud; true threats; and speech presenting some grave and imminent threat the government has the 

power to prevent, although a restriction under the last category is most difficult to sustain.” United 

States v Alvarez, 567 US 709, 717; 132 S Ct 2537; 183 L Ed 2d 574 (2012). Therefore, although 

the First Amendment applies to this matter, its protections may not extend to the specific speech 

at issue.

V. PRELIMINARY ASSESSMENT OF TRUE THREAT

Defendant argues that, even if MCL 750.543m is constitutional, the requirements of the 

First Amendment, Osantowski I, and MCL 750.543z require the district court to make an initial 

determination, as a prerequisite to prosecution, that defendant made a “true threat.” We agree in 

part. He further argues that the lower courts erred as a matter of law by concluding that defendant 

was properly bound over for trial. We disagree.

“In a preliminary examination, a district court’s function is to determine whether the 

evidence is sufficient to cause an individual marked by discreetness and caution to have a 
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reasonable belief that the defendant is guilty as charged.” People v Justice, 454 Mich 334, 343; 

562 NW2d 652 (1997). Importantly, the inquiry is not into actual guilt or innocence, and the 

requisite quantum of proof is far less than “beyond a reasonable doubt.” Id. at 343-344. Rather, 

reasonable doubts or conflicts in the evidence must be reserved to the trier of fact. People v Hill, 

433 Mich 464, 469; 446 NW2d 140 (1989). The only requirement is that “[t]here must be evidence 

on each element of the crime charged or evidence from which those elements may be inferred.” 

People v Doss, 406 Mich 90, 101; 276 NW2d 9 (1979) (quotation omitted). The prosecutor must, 

therefore, provide some evidence that defendant held a “general intent to communicate a ‘true 

threat.’ ” Osantowski I, 274 Mich App at 605. Nevertheless, it is typically “a question of fact for 

a jury to determine whether a statement constitutes a true threat.” Id. As defendant concedes, a 

“true threat” does not turn on whether the speaker intends to carry out the threat, but on whether 

the speaker intends to communicate the threat. Black, 538 US 359-360.

Defendant is correct insofar as the district court was required to make a preliminary finding 

that there was some evidence that defendant intended to communicate a true threat when he made 

his Snapchat post. However, defendant further argues that the district court was obligated to make 

an initial determination as a matter of law whether his speech constituted a true threat. Defendant 

is incorrect. Defendant observes that “[w]hen facts are found that establish the violation of a 

statute, the protection against conviction afforded by the First Amendment is a matter of law.” 

Dennis v United States, 341 US 494, 513; 71 S Ct 857; 95 L Ed 1137 (1951). However, defendant 

overlooks that whether his speech constituted a true threat is itself a question of fact; and if the 

trier of fact were to conclude that defendant did not make a true threat, it is already established as 

a matter of law that he could not be guilty of making a threat of terrorism. Instead, defendant 

would put the cart before the horse and eliminate the protection of a jury evaluating whether 

particular speech constituted a true threat. 

Although not binding upon us, we find persuasive that the United States federal courts have 

generally agreed. See Abela v General Motors Corp, 469 Mich 603, 607; 677 NW2d 325 (2004). 

In United States v Baker, 890 F Supp 1375, 1385 (ED Mich, 1995), the District Court held that 

whether a speech constituted a true threat was a question for the jury, unless the speech could not 

possibly constitute a true threat. This is consistent with the purpose of a preliminary examination 

to ensure that there is some evidence that the speech could be a true threat. The Tenth Circuit 

explained that it is a question of law whether a reasonable jury could find a statement to be a true 

threat, but whether the speech actually is a true threat would generally be a question for the jury. 

United States v Stevens, 881 F 3d 1249, 1252 (CA 10, 2018). The Second Circuit held that whether 

the First Amendment applies to a statute is a question of law for the court, United States v Kelner, 

534 F 2d 1020, 1028 (CA 2, 1976), but unless the trial court finds as a matter of law that particular 

speech could not be a true threat, whether the speech is a true threat “is a question generally best 

left to a jury.” United States v Malik, 16 F 3d 45, 51 (CA 2, 1994). The Third Circuit likewise 

explained that the trier of fact should generally decide whether a speech is a true threat, although 

the trial court is empowered to determine that the speech is so obviously not a threat that a charge 

should be dismissed as a matter of law. United States v Stock, 728 F 3d 287, 297-298 (CA 3, 

2013). Several other circuits have also held that whether a particular speech constitutes a true 

threat is not a question of law for the court, but a question of fact for the jury. Alexander v United 

States, 418 F 2d 1203, 1206 (CA DC, 1969); Feminist Majority Foundation v Hurley, 911 F 3d 

674, 692 (CA 4, 2018); United States v Daughenbaugh, 49 F 3d 171, 173-174 (CA 5, 1995);

Melugin v Hames, 38 F 3d 1478, 1485 (CA 9, 1994).
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The clear conclusion is that the preliminary examination for a charge of making a terrorist 

threat under MCL 750.543m should include consideration by the district court of whether the 

speech at issue could not possibly be considered a true threat. However, defendant is incorrect in 

asserting that the district court should decide as a matter of law whether it actually is a true threat. 

The district court properly carried out its duty by determining that the Snapchat post could 

constitute a true threat. The circuit court likewise properly concluded that although defendant had 

several “very good arguments” for why a jury should find him not guilty at trial, the bindover was 

proper because the post could be a true threat.

VI. PROBABLE CAUSE

Defendant finally argues that the district court erred in finding probable cause to bind him 

over for trial, and the circuit court erred in failing to quash the charge. We disagree.

We initially note that the student who reported feeling threatened by defendant’s post was 

apparently not an intended recipient of the post. As a general matter, a person “may not be 

punished because [he or she] negligently overlooked the possibility that someone else would show 

[a person not intended as a recipient] the Snapchat contents.” In re JP, 330 Mich App 1, 18-19; 

944 NW2d 422 (2019). However, the evidence at the preliminary examination indicated2that 

defendant had shared his Snapchat post with a large group of students, many of whom did not even 

know each other, and the student who felt threatened did not see the post only because she had 

intentionally removed herself from that group following an earlier disagreement with defendant. 

Furthermore, the post was widely shared on campus. This is clearly not a situation in which a 

person shares a private post with a limited number of known associates, only to discover that one 

of those associates breached his trust by sharing it further. Rather, defendant clearly intended his 

post to be essentially public. There is no evidence that the post was made accidentally, or that 

defendant was unaware of its contents or its audience. The evidence establishes that defendant 

intended to communicate the contents of the post with “any other person,” including the people he 

regarded as “snowflakes.”

To constitute a true threat, defendant must have made the communication “for the purpose 

of issuing a threat, or with knowledge that the communication will be viewed as a threat,” rather 

than merely recklessly. Elonis v United States, 575 US 723, 740; 135 S Ct 2001; 192 L Ed 2d 1 

(2015). Defendant appears to tacitly concede that his post was antisocial and ill-conceived, but 

argues that it was merely a reference to his expectation that bringing his gun to campus would 

cause the minds of “snowflakes” to “melt.” As the circuit court observed, a jury could choose to 

believe that argument, and nothing in this opinion should be taken as foreclosing defendant from 

making such an argument at trial. However, at the preliminary examination stage of proceedings, 

the question is whether it is impossible for a statement to constitute a true threat, not whether it is 

possible for the trier of fact to deem it not a true threat. We conclude that the lower courts both 

properly found the matter to be a question for the jury.

 

2 Evidence produced at trial may differ, but as discussed, the question at this stage of proceedings 

is whether there is some evidence of each element of the charged offense, not whether a defendant 

is actually guilty of the charged offense.
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The meaning of a particular speech must be considered in its context. Watts, 394 US at

708. This may require consideration of current events and popular culture. People v Byczek, ___ 

Mich App ___, ___; ___ NW2d ___ (2021) (Docket No. 350341), slip op at p 8. Defendant argues 

that bringing guns to campus was not noteworthy; it is therefore incongruous that he would expect 

bringing a gun to campus to even raise an eyebrow, let alone “melt the brains” of people of a 

particular political orientation. Defendant also notes that guns are often brought to campus “for 

activities connected to hunting, sport shooting, outdoor firing ranges, and more.” However, in 

addition to considering the wider social context, affixing a bayonet drastically changes the 

apparent context: bayonets are fundamentally used for hand-to-hand combat. See MerriamWebster’s Collegiate Dictionary (11th ed). The bayonet affixed to defendant’s gun therefore 

implies that its intended use is against humans, not game animals or paper targets. The metaphor 

of “mak[ing] the snowflakes melt” is more consistent with placing “snowflakes” in fear, or 

possibly even killing them, than with causing them offense—especially if bringing guns to campus 

was otherwise not extraordinary. Conversely, school and other mass shootings currently receive 

significant media attention. Consequently, social media posts referencing guns, schools, and 

intentionally-obfuscated references to any kind of implied ensuing harm will necessarily be 

considered in light of that media attention. We note that both students who testified, including the 

student who did not feel threatened, indicated a belief that other students on campus might feel 

targeted or intimidated by the post.

When all of the above concerns are considered together and in context, there was ample 

basis for the district court to find probable cause that defendant knew, at the time he made his 

Snapchat post, that recipients who fell into the category of persons he considered “snowflakes” 

would receive and feel threatened by the post.3

VII. CONCLUSION

To the extent defendant argues that MCL 750.543m is unconstitutional, we disagree. To 

the extent defendant argues that the facts failed to establish that he made a true threat for purposes 

of whether the speech in his Snapchat post was protected by the First Amendment, we again 

disagree, but his arguments are appropriate for consideration by the jury. The district court 

properly bound defendant over for trial. Affirmed.

/s/ Amy Ronayne Krause

/s/ Kathleen Jansen

/s/ Michael J. Kelly

 

3 Defendant does not specifically challenge whether he threatened an “act of terrorism” as defined 

by MCL 750.543b(a), but rather only whether his speech constituted a “true threat” for First 

Amendment purposes. This Court’s grant of leave to appeal was limited to the issues raised in 

defendant’s application for leave, which likewise addressed his First Amendment challenge but 

did not specifically challenge whether the elements of MCL 750.543b(a) were sufficiently 

established. We therefore limit our analysis to defendant’s First Amendment challenge.