By Jonathan Hutson
Joni Mitchell sang, “Don’t it always seem to go, that you don’t know what you’ve got ’til it’s gone.” When it comes to free speech, I know what I’ve got, but I am concerned that I may soon be silenced. And if I am censored, it ought to give all of us in public life, pause.
It is tempting to think that I’m overreacting. But I have to ask, what if I’m not? An attorney has filed a motion asking a judge in Kalispell to silence me. Of course, just because a lawyer files a motion doesn’t mean he will succeed. But you don’t know what it feels like until someone tries to intimidate you in this way. And I can tell you it doesn’t feel good.
Even if you’re inclined not to take it seriously, you have to take it seriously anyway. And I believe that any Montana Cowgirl reader would probably feel the same way.
In a nutshell, here’s what happened, and why free speech advocates should pay attention.
Mass shooting threat suspect David Joseph Lenio, 29, threatened to permanently silence the First Amendment rights of school children and Jewish people. Fortunately, he was arrested on February 16 before he could act on his threats. However, his defense attorney, Brent Getty, recently filed a motion asking Judge Heidi Ulbricht to admonish me not to repeat what I stated, here at Montana Cowgirl on November 16 about Lenio going to his storage locker to retrieve a “cache of weapons” after he had issued numerous threats to shoot grade school kids and Jewish leaders.
Police officials told several Montana newspapers that Lenio’s roommate said that on February 15, Lenio went to his storage locker and retrieved rifles, ammunition, and a gun safe. When police executed search warrants on Lenio’s apartment and van, they found a Russian-made, bolt-action rifle that fired NATO .762 rounds, a 9 mm semi-automatic rifle, and a .32 semi-automatic handgun with a round in its chamber, plus ammunition for all three guns. In his van, police discovered the semi-automatic pistol and three fully loaded .32-caliber magazines, along with marijuana, a pipe, and jugs of urine.
But Lenio’s defense lawyer has asked a court to take away my right to state the fact that guns are weapons, and that a collection of stored items, such as guns and ammunition, is a cache. Mr. Getty cites forensic evidence that one of the three guns — the 9 mm rifle — was missing parts and not maintained in working order, and hearsay that Mr. Lenio’s family had reportedly told investigators that the rifle “might be missing parts and probably isn’t functional.”
Did David Lenio know whether his guns were in working order or how quickly and easily they could be put in working order? We don’t know. Those are questions for a jury to determine.
Mr. Getty describes this rifle as a Hi Point Model 995, serial number A62384. There is no record in the filing of whether law enforcement officials have asked the ATF to trace this gun or Lenio’s two other weapons to determine how and when he acquired them, or whether they had previously been used in the commission of any crimes. I have not alleged or implied that Mr. Lenio’s guns were illegal or stolen.
If in fact Lenio’s weapons needed work, it is not unreasonable to think that he might try to put them in good working order. Unfortunately, there is also no record of whether the State has conducted a forensic examination of Mr. Lenio’s computer or smartphone to determine if he had done Internet searches on how to clean and repair rifles. But a casual search of YellowPages.com shows 32 listings for Guns & Gunsmiths near Kalispell. The New York Times reports, “In Kalispell, the seat of Flathead County, 250 people earn a living making guns or gun parts, a tenfold increase since 2005.”
So it is also not unreasonable to speculate as to why Mr. Lenio apparently moved his guns to Kalispell from Grand Rapids, Michigan on December 30, when he began tweeting threats to shoot up a Kalispell grade school. It is not unreasonable to wonder why he kept them in a gun safe in a storage locker if he did not intend any use for them. And it is not unreasonable to wonder why, hours after tweeting threats to kill school kids and put two bullets in the head of a rabbi, he retrieved, yes, a weapons cache from his storage locker.
A car that sits in a mechanic’s shop waiting to be repaired is still a car. A rifle that has missing or misaligned parts is still a rifle. And yes, it may be non-functional until it is taken out of storage and put in working order, maybe by the owner, or maybe with the ready assistance of a local gun dealer or gunsmith. Bars, casinos, and gun repairs are easy to find in Kalispell.
If Mr. Lenio had no plans to use his rifles, then why did he store and retrieve ammunition for them? If he had no plan to use his semi-automatic handgun, then why did police find it in his van with a bullet in the chamber, and three full clips of ammunition for it? All this brings me to Mr. Getty’s rationale for asking the court to silence me.
Trappers’ Slang, or The Origin and Meaning of the Word Cache
Mr. Getty doesn’t like it that I used the word “cache” in reference to Mr. Lenio’s guns, gun safe, and ammunition. He doesn’t like the word cache because he claims that according to Merriam-Webster.com, (the online edition of the dictionary) a cache refers only to items that have “been hidden in a secret place because they are illegal or have been stolen.” But there is much more that Mr. Getty leaves out. As reasonable readers of Merriam-Webster’s online dictionary can see for themselves, Mr. Getty is hoisted by his own petard because the dictionary actually states that the “full definition” of cache is
1a: a hiding place especially for concealing and preserving provisions or implements; b: a secure place of storage; 2: something hidden or stored in a cache
The full definition is much broader than Getty would like us to think. It’s a secure place of storage, like a squirrel caches nuts.
So I have just one word for Getty’s effort to silence me: Nuts!
Meanwhile, as I write this, Lenio is still living and working in Grand Rapids, Michigan, despite the fact that he’s apparently violated conditions of his release at least 348 times that we know of. Right now, 37 other inmates have been rearrested and locked up in the Flathead County Detention Center on charges of violating their release conditions. So why should Lenio, the white son of an investment banker, receive preferential treatment, and be allowed to reside in his parents’ comfortable home in Grand Rapids, Michigan — without even having to post any bail — despite his apparent serial violations of the judge’s order to stay off of social media?
If Lenio’s Twitter obsession were limited to say, cat pictures, we might not have anything to worry about. But it is important to recall that the waves of tweets that led to his arrest were about mass shootings and his fantasy of dying in a hail of police bullets. There was much that suggested that he was a danger to others and to himself. And much, much more. Among the more recent retweets he posted in defiance of the terms of his release, he retweeted a statement that if someone says they want to kill you, you should believe them.
I hope that the State of Montana and the FBI will believe Mr. Lenio when he suggests that when someone says he is going to kill someone, we should believe him.
Now here’s a cautionary tale. Barry Kirk of Columbus, Ohio threatened a mass shooting in 2009 but was not punished. A year later, he was fined and given one year’s probation for telephone harassment. On November 24, 2015, police arrested him and charged him with shooting and killing three members of a Columbus family, including a 7-year-old boy. His wounded 12-year-old sister staggered to the phone, dialed 911, and said, “Please help.”
Back in 2009, Kirk had told investigators that he would shoot “without hesitation.” They apparently did not take him seriously. Now comes David Lenio, violating his release conditions while spreading the word on Twitter that when someone says they are going to kill someone, you should believe them. This is right above a series of tweets that Lenio retweeted about people wanting to kill other people. Here he is, practically waving his arms, jumping up and down, and saying you should believe a person who threatens to kill. He gets to repeatedly tweet about killing people, but his lawyer wants the court to silence me from repeating the words “weapons cache” to describe the stored guns and ammunition that he retrieved?
Here’s what I believe about Mr. Getty’s efforts to silence me. I believe I won’t surrender my First Amendment rights. “Nuts!” is all he is going to get.
The prosecutor, Deputy County Attorney Stacy Boman, filed a motion agreeing with Mr. Getty’s demand that she not describe the guns and ammunition retrieved by Lenio from storage as a “cache of weapons.” It is her right to allow the defense attorney to edit her public statements, just as it is my right to freely state the facts using no less accurate language.
Deputy County Attorney Boman’s motion, dated November 24, states:
“Defendant seeks to prevent the State and its witnesses from referring to the firearms seized in this case as a “cache of weapons” during the trial. At trial, the State will not refer to the firearms in this case as a “cache of weapons.” The State does intend to present evidence regarding the firearms found in Defendant’s possession and evidence regarding Defendant retrieving a firearm and bringing it to his residence.”
On November 27, I submitted my Declaration to the Clerk of Court, along with a Certificate of Service dated November 25, showing that I had simultaneously served copies to the prosecutor and defense attorney.
My Declaration points out:
“Since I hold a B.A. in French and a Master’s in French and used to teach French, I know that the English word cache comes from the French verb cacher, which means to hide or store away, especially with reference to ammunition, food, or other supplies. See the Online Etymology Dictionary, which states that the French word cache comes from French Canadian trappers’ slang, and means “a hiding place for stores,” and can mean “anything stored in a hiding place.” URL: http://www.etymonline.com/index.php?term=cache
My Declaration states: “I have used the word cache in the broad, traditional, and commonly understood sense, to convey a collection of stored items, as in a food cache or an ammunition cache.”
Let’s all agree that the primary meaning of cache offered in the full dictionary definition in Merriam-Webster.com stands, and that my use of the term applies to the situation by any reasonable standard.
A Car in Need of Repairs Is Still a Car
According to my Declaration:
Mr. Getty would have the court believe that one of defendant Lenio’s three guns, which had apparently not been maintained in working order when Lenio cached it in a storage locker like a squirrel caches nuts, is no longer to be considered a weapon.
I believe that it would be fallacious to argue that a car which merely needs new tires and an oil change to be functional could no longer be called a car. I believe that a person who takes possession of a gun that has dirty, missing, or misaligned parts could state, with good reason, that he had in his possession a gun, which is to say a firearm or a weapon.”
My Declaration concludes:
I believe my descriptions of Mr. Lenio’s retrieval of his two stored rifles, gun safe, and ammunition from his storage locker are fair and accurate, do not indicate bias or convey prejudice to a reasonable person, such as the editors of Merriam-Webster.com, who offer a broad, traditional, and commonly understood definition of cache. I believe that the State has no compelling interest in imposing prior restraint on my First Amendment rights to publish essays or guest columns, or to author or co-author opinion pieces, or to make factual statements and accurate descriptions to the news media that no reasonable person would interpret as either factually incorrect or prejudicial.
In stating that a squirrel caches nuts, I in no way imply that the squirrel’s nuts are illegal or stolen. However, I do believe it would be reasonable to conclude that a squirrel who suddenly retrieves nuts after collecting, transporting, and storing them is more likely, not less likely, to use them.
When Judges Become Censors
Mr. Getty makes an unreasonable demand for prior restraint forbidding the dissemination of information from public records, already known to and published by the news media, and thus public. Mr. Getty disingenuously argues that my statements that defendant Lenio retrieved a cache of weapons is inaccurate and thus prejudicial, when common sense, as well as the authority he cites — Merriam-Webster.com — proves the opposite to be true.
According to the news media accounts of public records, which I cite, Lenio retrieved from storage two rifles, a gun safe, and ammunition for all three of his guns, including his semi-automatic handgun, which had a bullet in the chamber and three loaded ammunition clips.
Therefore, it is fair and accurate to state that this mass shooting threat suspect retrieved a weapons cache.
Under the right of access to public records, recognized under the First and Fourteenth Amendments to the U.S. Constitution, and under the Right to Know provision of Article II, Section 9 of the Montana Constitution, Montana Cowgirl and its contributors have a right to know as well as a right to engage in an editorial process free from government intervention, which is the core guarantee of a free press. These rights have to be balanced by the defendant’s right to a speedy trial before an impartial jury.
The Montana Supreme Court has stated in Montana ex rel Missoulian v. Montana Twenty-First Judicial Court that under the State Constitution, “We hold that the right to know extends to receiving any information which pertains to the criminal law process, regardless of whether that information emanates directly from the courthouse or indirectly from those who are participating in the system as law enforcement officers, attorneys, parties or witnesses and who may wish to communicate with the public or the press about the process.”
Mr. Getty muddles the facts and cites an online dictionary that actually dispels his argument for prior restraint, even as he fails to meet the standards, as the Montana Supreme Court discusses in the Missoulian case, of showing either “a clear and present danger” or even a “substantial probability” that my exercise of free speech rights, or publicity about facts known to the media from public records, jeopardizes his client’s right to a fair trial.
If the court were to consider prior restraint, then the media and any parties restrained should first be given notice and have the opportunity to be heard, and the court should explain what reasonable alternatives have been considered and why those reasonable alternatives could not adequately protect the defendant’s fair trial rights.
There is no evidence in the record of this case that would support a conclusion that defendant David Lenio’s right to a fair trial is threatened or that prior restraint would be a reasonable solution. Less restrictive alternatives, such as extensive questioning of potential jurors, are available. As the dissent in the Missoulian case argues, when judges become censors, the opportunity for arbitrariness is great, and there are few timely and effective checks and balances to undo the damage. Prior restraint, including unwarranted gag orders, would be a preemptive strike against the fundamental rights of freedom of speech, freedom of the press, and the public’s right to know, which would destroy the values that open, public trials promote.