First, a bit of background on Billy’s story:
Billy is a Specialist (E-4) and a member of the Virginia Army National Guard: Bravo CO, 3rd BN, 116th Infantry Brigade Combat Team. Billy has served in combat overseas. On Monday August 20, 2012 Billy was doing PT (exercising for the non-military types) in full gear, which means he was wearing his ballistic vest, with ceramic plates, magazines (which were empty), and the rest of the ‘battle rattle.’ He was also carrying an Airsoft pellet gun with a highly visible orange/red tip.
At approximately 0700HRS Billy was stopped by three Martinsburg, West Virginia police officers. He was then arrested and taken into custody. Billy has been charged with committing a terrorist act, a felony, and with wearing body armor during the commission of a felony.Apparently local law enforcement were joined at Billy’s home by members of the Federal Bureau of Investigation, the Department of Homeland Security, and, possibly, members of the Federal Emergency Management Agency. After a bomb squad cleared his residence the agents and law enforcement officers searched and located ‘military equipment,’ which is unsurprising, given that Billy is a soldier.
At some point after that, members of DHS questioned Billy in jail. He has also undergone a psychological evaluation. I believe we can expect the State to make hay of any psychological issues that Billy may be diagnosed with, in an attempt to deflect focus from the actual facts of the case. The Prosecuting Attorneys may very well use any psychological results to recast the entire affair as, ‘this is a soldier in need of help,’ as a face-saving measure, given that the underlying charges will most surely wither under judicial review. It is another tactic becoming more common with prosecutions of veterans and military personnel: They are damaged, they are dangerous, they must be treated, even if they didn’t do anything wrong.
Billy’s next court appearance is on Wednesday August 29, 2012. A rally is planned for 10:00 am at the Martinsburg, WV courthouse. The link to the Facebook event page for the rally is below.
We believe that Billy’s charges are baseless and cannot stand legal scrutiny. Despite this, the Berkeley County Prosecuting Attorney has made a statement that she believes the charges are appropriate. In an attempt to shift the focus of the public’s attention, she has alleged that Billy was intoxicated (drunk) when he was taken into custody. Even if Billy was under the influence of alcohol, he is innocent of any felony criminal act. At worst, perhaps an ordinance violation for being under the influence in public.
Here is the link to Billy’s Facebook support page:
Here is the link to the Facebook rally page:
Here is the link to the petition that has been started, asking for Billy’s immediate release:http://www.change.org/petitions/to-those-officials-connected-to-the-case-of-william-alemar-release-of-william-alemar?utm_campaign=autopublish&utm_medium=facebook&utm_source=share_petition&utm_term=3010088
Now I will discuss the charges against Billy and my personal opinions and breakdown of those charges, and how the available facts apply.
The Berkeley County West Virginia Prosecuting Attorney’s office has charged Billy with Committing a Terrorist Threat and with Wearing Body Armor During Commission of a Felony.
In order to convict Billy of these charges, the State must prove each ‘essential element’ of the individual charges. In this case, the State must first prove that Billy committed a terrorist act, and then must prove that Billy wore body armor while committing the terrorist act in order to achieve a conviction on both charges. Each of these elements must be proved ‘beyond a reasonable doubt,’ which is the absolute highest burden of proof within the jurisprudence of the United States.
Each charge’s elements generally consist of the following:
1) There must be a law prohibiting the acts in question.
2) There must be criminal intent, or ‘mens rea,’ Latin for ‘guilty mind.’
3) There must be a criminal act, or ‘actus reus,’ concurrent with the criminal intent.
4) There must be ‘causation,’ or proof that the actual harm intended to be prevented has occurred.
I will attempt to break down each charge, and their essential elements, as I understand them. Please bear in mind that, while I am an attorney, I am not admitted to practice law in West Virginia, and, therefore, my understanding of West Virginia statutory interpretation may be somewhat flawed.
First, the charge of Committing a Terrorist Act:
The law prohibiting such an act is West Virginia Code §61-6-24. I have taken the liberty of underlining the portions of the statute that I believe are applicable to Billy’s case.
§61-6-24. Threats of terrorist acts, conveying false information concerning terrorist acts and committing terrorist hoaxes prohibited; penalties.
(a) As used in this section:
(1) “Economic harm” means all direct, incidental and consequential pecuniary harm suffered by a victim as a result of criminal conduct. Economic harm includes, but is not limited to, the following:
(A) All wages, salaries or other compensation lost as a result of the criminal conduct;
(B) The cost of all wages, salaries or other compensation paid to employees for time those employees are prevented from working as a result of the criminal conduct;
(C) The cost of all wages, salaries or other compensation paid to employees for time those employees spent in reacting to the results of the criminal conduct; or
(D) The overhead costs incurred for the time that a business is shut down as a result of the criminal conduct.
(2) “Hoax substance or device” means any substance or device that is shaped, sized, colored, marked, imprinted, numbered, labeled, packaged, distributed, priced or delivered so as to cause a reasonable person to believe that the substance or device is of a nature which is capable of causing serious bodily injury or damage to property or the environment.
(3) “Terrorist act” means an act that is:
(A) Likely to result in serious bodily injury or damage to property or the environment; and
(B) Intended to:
(i) Intimidate or coerce the civilian population;
(ii) Influence the policy of a branch or level of government by intimidation or coercion;
(iii) Affect the conduct of a branch or level of government by intimidation or coercion; or
(iv) Retaliate against a branch or level of government for a policy or conduct of the government.
(b) Any person who knowingly and willfully threatens to commit a terrorist act, with or without the intent to commit the act, is guilty of a felony and, upon conviction thereof, shall be fined not less than $5,000 nor more than $25,000 or confined in a state correctional facility for not less than one year nor more than three years, or both.
(c) Any person who knowingly and willfully conveys false information knowing the information to be false concerning an attempt or alleged attempt being made or to be made of a terrorist act is guilty of a felony and, upon conviction thereof, shall be fined not less than $5,000 nor more than $25,000 or confined in a state correctional facility for not less than one year nor more than three years, or both.
(d) Any person who uses a hoax substance or device with the specific intent to commit a terrorist act is guilty of a felony and, upon conviction thereof, shall be fined not less than $10,000 nor more than $50,000 or confined in a state correctional facility for not less than one year nor more than five years, or both.
(e) The court shall order any person convicted of an offense under this section to pay the victim restitution in an amount not to exceed the total amount of any economic harm suffered.
(f) The court shall order any person convicted of an offense under this section to reimburse the state or any subdivision of the state for any expenses incurred by the state or the subdivision incident to its response to a violation of this section.
(g) The conviction of any person under the provisions of this section does not preclude or otherwise limit any civil proceedings arising from the same act.
Thus, the law itself prohibits not only the commission of a terrorist act, as defined by (a)(3), but also the threat to commit a terrorist act, as outlined by (b). Further, a terrorist act or threatened terrorist act does not require the use of actual materials, and the use of a ‘hoax substance or device’ is sufficient to support a conviction under the statute. Subsection (a)(2) sets forth the definition of a ‘hoax substance or device,’ and it is quite possible that Billy’s Airsoft pellet rifle falls within the very broad scope of this definition, as it ‘is shaped, sized, colored, marked, imprinted, numbered, labeled, packaged, distributed, priced or delivered so as to cause a reasonable person to believe that the substance or device is of a nature which is capable of causing serious bodily injury.’
The law also requires intent, or mens rea. Committing a terrorist act requires that Billy actually conducted some act that falls within the statutes definition of a ‘terrorist act.’ At present, we have no information that Billy did, in fact, commit such an act. However, the law also prohibits the threat of a terrorist act. It is my guess that the State is actually going to proceed under this portion of the statute. To satisfy the intent element, the State must prove beyond a reasonable doubt that Billy knowingly and willfully threatened commission of a terrorist act. Whether or not he actually intended to follow through with the threat is irrelevant. To date, no information has been made public that Billy did, in fact, threaten any terrorist act, or any other threats at all. It is quite obvious, even to a layman, that the intent must be proved, as well as the threat itself.
This brings us to the ‘actus reus’, or criminal act itself. What we know is that Billy was jogging in his military-issued equipment. We also know that he was apparently carrying a pellet gun. Neither of these individually, nor jointly, would rise to the level of either the commission of a terrorist act, or the mere threat to commit a terrorist act. There is absolutely no indication that Billy made any threatening gestures or verbal threats to anyone. There is also no indication that Billy intended to make any threatening gestures or verbal threats toward anyone. From the available information, some observers were concerned about Billy running in his gear, and some may have been, as characterized by the Prosecuting Attorney, ‘terrified’ by Billy’s behavior. Without any act on Billy’s part, however, this alone does not rise to the level of the conduct prohibited by the statute.
Next is causation. As I just mentioned, the Prosecuting Attorney is, as far as I know, premising the charge upon some members of the public’s subjective reactions to Billy’s appearance. There is no information available that would support any finding that Billy intended to ‘intimidate or coerce the civilian population,’ as required by (a)(3)(b)(i).
Taken as a whole, given what we know now, there appears to be no actual basis for the charge, and, further, there appears to be no evidence to substantiate any of the essential elements of the crime of committing, or threatening to commit, a terrorist act, let alone evidence sufficient to prove each of the above essential elements beyond a reasonable doubt. The mere response of members of the public, without any intent on Billy’s part, is wholly insufficient to obtain a conviction. In fact, I firmly believe as a criminal defense attorney myself that the charges are completely meritless and will be dismissed.
I should also mention the issue of ‘prosecutorial discretion.’ The Prosecuting Attorney’s office has the ability to dismiss, to decline to prosecute, to modify, or to prosecute any charges brought against a defendant. As has been made apparent by the Prosecuting Attorney’s office in this case, they have opted not to exercise their discretion to dismiss or decline to prosecute the charges against Billy. Similarly, despite their statements that Billy was intoxicated at the time of his arrest, no charges of disorderly conduct or public intoxication have been brought. The two original charges still stand. Thus, the Prosecuting Attorney’s office has made a conscious choice to pursue the charges as initially brought.
Next, we look at the charge of wearing body armor while committing a felony offense, which is covered by West Virginia Code §61-7-15.
§61-7-15. Persons prohibited from committing violent crime while wearing body armor; penalties.
(a) A person who wears or is otherwise equipped with body armor while committing a felony offense, an element of which is force, the threat of force, physical harm to another or the use or presentment of a firearm or other deadly weapon, is guilty of a felony and, upon conviction thereof, shall be confined in a correctional facility for not less than two nor more than ten years or fined not more than ten thousand dollars, or both.
(b) As used in this section, “body armor” means a jacket, vest, or other similar apparel or device constructed to provide ballistic resistance to penetration and deformation and intended to protect the human torso against gunfire. The term may include, but is not limited to, apparel that incorporates inserts, or variations in construction of the ballistic panel over small areas of the torso, for the purpose of increasing the basic level of protection of the armor (whether ballistic or blunt trauma) on localized areas. Body armor may be constructed of Kevlar or other similar fabric and may be reinforced with other materials. Body armor may incorporate “threat” or “trauma” plates (which are inserts that fit into the vest that will stop more powerful rounds) or may, as “threat armor”, incorporate hard panels.
As is obvious from section (a), if a person is wearing body armor while committing a felony with an element of force or ‘the threat of force, physical harm to another or the use or presentment of a firearm or other deadly weapon[.]’ I must state that Billy was carrying two knives on his person, which may, under the definition of ‘knife’ in WV Code §§61-7-2(3) and (9), may be considered ‘deadly weapons.’ Having said that, there is no evidence that Billy used, brandished or presented the knives while he was jogging, and, therefore, did not threaten force or use force against anyone with them.
Subsection (b) would obviously apply, as Billy was apparently wearing his issued ballistic vest/plate carrier, and did, in fact, have the plates within the vest. However, without meeting the requirements of subsection (a), this is a moot point.
In summation, it does not appear that the Prosecuting Attorney’s office can prove up even a single element of either of the charges brought against Billy. The Prosecuting Attorney’s office’s actions, seen in this light, are, therefore, inexplicable and, from an objective legal standpoint, irrational. It may be that there are other factors involved, such as political aspirations, or perhaps attempts to placate perceived demands of the public, which have led to Billy’s continued prosecution and detention.
I must once again stress that my reading of the statutes in question is imperfect, as I do not practice law in West Virginia, and am not admitted to the State Bar of West Virginia. I must also state that there may be facts and circumstances that have not yet been made public, which could have a material impact upon the case. I have based my opinion solely upon the information that has been available as of the time I write this.