Saturday, August 17, 2019

Missouri Walmart Open Carrier 1st Degree Terrorist Threat Rejected by Prosecutor



At about 4:10 p.m. on 8 August, 2019 Dmitriy Andreychenco parked in the parking lot of the Walmart Neighborhood Market in Springfield, Missouri. He took an tactical ballistic vest out of the car, put it on, and slung a AR type rifle. He walked into the store. He was open carrying and testing his Second Amendment rights, as confirmed by his wife and his sister. He had his phone in his hand and was recording himself as he pushed a cart through the store. He never pointed the firearm at anyone or made any verbal or written threat. The Walmart manager stated he heard an employee say that Dmitriy was coming into the store with the vest and the rifle. He observed Dmitriy walking in the store aisles. He told an employee to pull the fire alarm in order to get people to evacuate the store.

Dmitriy evacuated the store with the rest of the customers. As he left the store, another armed citizen pointed a gun at him and held him for police.

The police took Dmitry into custody without incident. A video shows him acting calmly and carefully following police commands. Police quickly determined he was not a threat, as the store manager had assumed.



  Link to video

Shortly after his arrest, a police officer claimed Dmitriy deliberately decided to cause chaos, a claim not supported by the facts. Police should avoid making claims about a suspects frame of mind, absent evidence.

The police arrested Dmitriy on suspicion of  making of a terroristic threat in the first degree

I predicted the Green County Prosecutor would not file a formal charge of a terrorist threat in the first degree. The facts did not support such a charge.

Dan Patterson, the Green County Prosecutor, rejected the charge of terrorist threat in the first degree.

Instead, he charged Dmitriy with a terrorist threat in the second degree. The second degree charge is still a felony.

Here is the felony complaint. From greencountymo.gov:
The Prosecuting Attorney of the County of Greene, State of Missouri, upon information and belief, charges that the defendant, in violation of Section 574.120, RSMo, committed the class E felony of making a terrorist threat in the second degree, punishable upon conviction under Sections 558.002 and 558.011, RSMo, in that on or about August 8, 2019, in the County of Greene, State of Missouri, the Defendant recklessly disregarded the risk of causing the evacuation of a building, the Walmart Neighborhood Market at 3510 W. Republic St., Springfield, Missouri, by knowingly communicating an implied threat to cause an incident or condition involving danger to life, or, in the alternative, by knowingly causing a fear that a condition existed involving danger to life.
Prosecutors routinely overcharge, as a starting position for plea bargains. Dmitriy is being held on $10,000 bail.

Here are the Missouri statutes for second degree and third degree terrorist threats. From mo.gov:

574.120. Making a terrorist threat, second degree — penalty. — 1. A person commits the offense of making a terrorist threat in the second degree if he or she recklessly disregards the risk of causing the evacuation, quarantine or closure of any portion of a building, inhabitable structure, place of assembly or facility of transportation and knowingly:

  (1) Communicates an express or implied threat to cause an incident or condition involving danger to life; or

  (2) Communicates a false report of an incident or condition involving danger to life; or

  (3) Causes a false belief or fear that an incident has occurred or that a condition exists involving danger to life.

  2. The offense of making a terrorist threat in the second degree is a class E felony.

  3. No offense is committed under this section by a person acting in good faith with the purpose to prevent harm.
­­--------
(L. 2014 S.B. 491)
Effective 1-01-17
An important element of the offense is that the action is performed knowingly. The Supreme Court recently ruled on a case involving Second Amendment rights  and what "knowingly" means. From the decision:
As this Court has explained, the understanding that an injury is criminal only if inflicted knowingly “is as universal and persistent in mature systems of law as belief in freedom of the human will and a consequent ability and duty of the normal individual to choose between good and evil.”
The prosecution will have to convince a jury that (3) Dmitriy knowingly caused a false belief or fear that an an incident has occurred or that a condition exists involving danger to life.

That will be a difficult case to make. Dmitriy consistently told the story that we was testing his Second Amendment rights, and he expected Walmart management to talk to him, not pull a fire alarm. The Third  degree terrorist threat is probably the prosecutor's target. Here is the statute:

  574.125. Making a terrorist threat, third degree — penalty. — 1. A person commits the offense of making a terrorist threat in the third degree if he or she, with criminal negligence with regard to the risk of causing the evacuation, quarantine or closure of any portion of a building, inhabitable structure, place of assembly or facility of transportation, knowingly:

  (1) Communicates an express or implied threat to cause an incident or condition involving danger to life; or

  (2) Communicates a knowingly false report of an incident or condition involving danger to life; or

  (3) Causes a false belief or fear that an incident has occurred or that a condition exists involving danger to life.

  2. The offense of making a terrorist threat in the third degree is a class A misdemeanor.

  3. No offense is committed under this section by a person acting in good faith with the purpose to prevent harm.
­­-------
(L. 2014 S.B. 491)
Effective 1-01-17

It is still a high standard. Criminal negligence would be what a jury would need to be convinced of, most likely of  (3) Causes a false belief.

Much will depend on surveillance video and the phone video that Dmitriy made. Did Walmart shoppers start running from Dmitriy before the Walmart management pulled the fire-alarm? It is not clear if that happened. The manager says he pulled the alarm to get customers to leave the store. If the manager believed that Dmitriy was a threat, even though customers were not panicking, the case for criminal negligence becomes harder to make.

Dmitriy faces considerable legal fees for his Second Amendment activism. Perhaps he could have shown better judgement. Maybe someone will create a gofundme account to help with his legal fees. It may be that gofundme will refuse to allow a fund to be set up.

They have taken down other conservative funding efforts, such as the one by Israel Folau, a Christian Rugby star who was sacked for quoting a bible verse, or the private effort to fund a border wall, where gofundme refunded $20 million, rather than allow the effort to proceed.

I do not believe the NRA legal defense fund will be of any assistance.

It is clear Conservatives need an alternative funding site, that will not take down their charity efforts, because the site disapproves of Conservatives.

This case will be followed closely.

Email for  the Green County Prosecutor, Dan Patterson, can be found at this link.

©2019 by Dean Weingarten: Permission to share is granted when this notice and link are included.

Gun Watch 



5 comments:

ScienceABC123 said...

In a "free country" you can't criminalize exercising a right.

Anonymous said...

According to the written law, the store manager is guilty. The citizen was exercising his constitutional right to open carry. Just because the store manager freaked out at the sight of a weapon is no reason for a customer to go to jail. If you walked into a saloon in the 1880's carrying your weapon No one would freak out because every one else was armed as well. Just because not many customers chose to open carry doesn't make carrying a threat.

HighlanderJuan said...

Interesting story, and expected series of events given that the government and many really ignorant and/or malicious Americans are doing their best to destroy the rule of law in America.

I have just about given up on the idea of trying to make big government and big business lawful once again. I suspect the system is simply too far gone for lawful Americans to restore maturity and sanity to America. Many of the American people now 'get it' but it seems clear that those in government simply do NOT 'get it.'

The majority of the mature and smart American people simply want to be left alone. But. as we all can now observe, government cannot allow that - they have to intrude in all of our lives under the fraudulent claim they are protecting us. Screw all that protection. Leave us the hell alone.

Anonymous said...

The constitution says government is responsible for the general welfare of the public, there is no authority for government to take the rights of individuals away for any political reason One group will say I like this another group will say we don't like that too bad other group walk away.

Anonymous said...

I don't live to please other people, Pleasing God is a full time job. Explain your discontent to God. Take my guns and get a free appointment.