The American Civil Liberties Union has filed a federal lawsuit on behalf of a Muhlenberg County man who was jailed for eight days last year after song lyrics he posted on his Facebook page prompted law enforcement to charge him with felony terroristic threatening.
On Monday, the ACLU filed papers in U.S. District Court on behalf of James E. Evans, who was charged with first-degree terroristic threatening in August after Evans posted some of the lyrics to the song “Class Dismissed (A Hate Primer)” from the band Exodus on his Facebook page.
The complaint names as defendants both Muhlenberg County and Muhlenberg County Police Department Officer Michael Drake, who filed the probable cause affidavit against Evans. The complaint says Drake allegedly “knowingly and intentionally made a material misstatement of fact” when preparing the affidavit that led to Evans’ arrest.
The complaint also says Drake allegedly “knowingly and intentionally omitted relevant and material information from his affidavit that, had it been included, would have established that probable cause did not exist to arrest (Evans) for any alleged criminal wrongdoing.”
The complaint says Evans, who was not a student or involved with the schools, posted the lyrics on his Facebook page on Aug. 24.
The lyrics Evans posted contained the lines: “Student bodies lying dead in the halls/A blood splattered treatise of hate/Class dismissed is my hypothesis/Gun fire ends the debate/All I ever wanted was a little affection/But no one ever gave it to me/My hate primer’s the result of my rejection/You’ll die for it, and I’ll die for thee.”
At the time the song was released, the band described the song in interviews as being about the incidents such as mass shootings at Virginia Tech and Columbine High School. After Evans was arrested, band songwriter Gary Holt said the song “in no way endorses” school violence, and the song “was written through the eyes of a madman.” In a statement, the band expressed their support for Evans.
The complaint says Evans had posted song lyrics on his Facebook page before. The complaint says law enforcement officials from several agencies became aware of the posting on Aug. 24, and a trooper for the Kentucky State Police and the chief of the Greenville Police Department identified the posting as song lyrics that day.
The complaint says Evans was interviewed at his home by Central City police officers, but the officers did not arrest or charge Evans with an offense. The interview, which was recorded, includes one of the officers telling Evans, “‘I’m not trying to tell you what to do. You have the right to freedom of speech. I’m not trying to infringe on that.'” Evans’ wife told officers Evans does not possess any weapons, the complaint says.
Drake filed his probable cause affidavit on Aug. 24; the complaint cites Drake’s affidavit, which says Evans “committed the offense of Terroristic Threatening, to wit: by threatening to kill students and or staff at school.”
The complaint says Drake, “did not provide any details about the alleged crime,” such as “specific language used to communicate” the threat, whether “the alleged threat specified a specific school, building, vehicle or event,” whether “the alleged threat included a threat to use a weapon of mass destruction” or “the manner in which the alleged threat was communicated.”
State law says, to qualify as first-degree terroristic threatening, a threat must include a false statement that a person “has placed a weapon of mass destruction” on public property or school property. A person who places a simulated weapon of mass destruction can also be charged with first-degree terroristic threatening.
First-degree terroristic threating is a class C felony, punishable upon conviction by between five and 10 years in prison. The complaint says Evans was arrested on the charge Aug. 26 and was held in jail for eight days. The charge was later dismissed.
The complaint claims Drake sought an arrest warrant against Evans although “the facts and circumstances were insufficient to establish probable cause to believe (Evans) had committed a criminal offense.” The complaint claims Evans suffered from malicious prosecution, and “suffered a deprivation of his liberty” by being incarcerated and being put through the court process.
The lawsuit seeks damages, “including punitive damages” and attorney fees, as well as “any and all other relief to which (Evans) may be entitled.”
Drake said Tuesday he was aware of the suit, but had not yet seen it.
“I can’t really talk about it right now,” Drake said. An attorney sent a story about the lawsuit from a website about heavy metal music to Drake, but, “I haven’t been served with it yet,” he said.
No hearings on the suit have yet been scheduled.
James Mayse, (270) 691-7303, firstname.lastname@example.org, Twitter: JamesMayse