I was curious how placing LEDs as part of a viral marketing campaign could constitute a felony. So I used my magic-power as law student and looked it up:
(a) Whoever possesses, transports, uses or places or causes another to knowingly or unknowingly possess, transport, use or place any hoax device or hoax substance with the intent to cause anxiety, unrest, fear or personal discomfort to any person or group of persons shall be punished by imprisonment in a house of correction for not more than two and one-half years or by imprisonment in the state prison for not more than five years or by a fine of not more than $5,000, or by both such fine and imprisonment.
(b) For the purposes of this section, the term “hoax device” shall mean any device that would cause a person reasonably to believe that such device is an infernal machine. For the purposes of this section, the term “infernal machine” shall mean any device for endangering life or doing unusual damage to property, or both, by fire or explosion, whether or not contrived to ignite or explode automatically. For the purposes of this section, the words “hoax substance” shall mean any substance that would cause a person reasonably to believe that such substance is a harmful chemical or biological agent, a poison, a harmful radioactive substance or any other substance for causing serious bodily injury, endangering life or doing unusual damage to property, or both.
. . .
(d) The court shall, after a conviction, conduct a hearing to ascertain the extent of costs incurred, damages and financial loss suffered by local, county or state public safety agencies and the amount of property damage caused as a result of the violation of this section. A person found guilty of violating this section shall, in all cases, upon conviction, in addition to any other punishment, be ordered to make restitution to the local, county or state government for any costs incurred, damages and financial loss sustained as a result of the commission of the offense. Restitution shall be imposed in addition to incarceration or fine; however, the court shall consider the defendant’s present and future ability to pay in its determinations regarding a fine. In determining the amount, time and method of payment of restitution, the court shall consider the financial resources of the defendant and the burden restitution will impose on the defendant. ALM GL ch. 266, § 102A1/2
Breaking it down: a court would need to find that the device was placed “with the intent to cause anxiety, unrest, fear or personal discomfort .” I’m beginning to understand why the defendants were talking about hair after their court appearance, and why the judge thought the charges were ridiculous. There is no way that the prosecutors can prove that intent – the mens rea is completely absent.
Furthermore, the definition of hoax device as one that “would cause a person reasonably to believe that such device is an infernal machine” indicates yet another gaping hole in the case. The blogosphere is buzzing with commentators pointing out that a Lite Bright would not have a threatening appearance to reasonable people, that the police overreacted. However, with intent completely gone, I doubt a court will find on this issue. Would you want to be the judge (in a post-9/11 world) who tells the police they overreacted?
Furthermore, even if they do have a view of the statute or actions that might imply intent, why are they going after two artists and not Turner Broadcasting? If the intent behind the items was to cause fear, then why would those who placed the items, for pay, have any less intent then those who hired them to do so? The statute’s language, by including anyone who “causes another to knowingly or unknowingly possess, transport, use or place” would seem to include these parties as well. Is it that the prosecution does not want to face the BigLaw attorneys that Turner would hire; that such attorneys would not only get the case dismissed as to all parties, but might even retaliate with a malicious prosecution lawsuit in civil court? They have already stated publicly that jurisdiction is not an issue, and that they intend to file a civil suit against Turner.