When Clowning Around Becomes Criminal

 In Blog

The creepy clown epidemic, which began with a single sighting and gained traction on social media, has turned into a full-blown hysteria that has swept the nation.  Since the initial sighting in South Carolina on August 29, 2016, 32 more states have reported sightings of individuals dressed as clowns. Reports range from innocent sightings in large public spaces to serious threats of violence against communities and schools.

Texas is no exception the craze. Authorities across the state are cracking down on the bizarre activity and investigating any and all clown related reports that cross their desk.  Just this week, schools in Spring have been on lockdown after authorities received credible threats over social media from self-proclaimed ‘clowns.’ What started as simple clowning around has evolved into a phenomenon that carries possible criminal implications. With the immense news coverage of the craze, you may be wondering….

What charges could these clowns face?

CRIMINAL TRESPASS

In Texas, Criminal Trespass is defined in Texas Penal Code 30.05 as “a person entering or remaining in or on property of another, without the effective consent of the owner, and the accused had notice that entry was forbidden or was given notice to depart and failed to do so.” A criminal trespass charge in Texas is typically a Class B misdemeanor, carrying a penalty of up to 180 days in a county jail and up to a $2000 fine.

Many of the nationwide clown reports authorities are investigating would qualify as criminal trespass in Texas. In Saint Augustine, Florida, seven deputies responded to the scene of a reported criminal trespass involving a clown. A local homeowner called officers when he noticed an unknown adult man dressed as a clown trespassing in his backyard. The homeowner was able to snap a photo of the suspect before he fled into the woods. Police searched the area, but the clown was not located.

Another alleged trespass occurred in Sheboygan, Wisconsin, where police responded to an early evening call reporting a clown in a resident’s yard.  Similar to the incident in Saint Augustine, officers responded to the call and searched the area, but were unable to locate the suspect.  Sheboygan Police Sargent Ryan Schmidt released a statement to the press regarding the incident stating, “If there is someone intentionally harassing somebody or trespassing, which is probably what the initial call was, or disturbing the peace, we’ll deal with that as a criminal issue.”

TERRORISTIC THREATS

Texas Penal Code Section 22.07 outlines the offense of terroristic threat. In short, terroristic threats in Texas include any threat of violence to persons or property that is meant to frighten people, impair public affairs, or influence governmental activities.

The penalty for a terroristic threat depends on the classification of the threat.  For example, in most cases, making a threat intended to prevent the use of a public building is a Class A misdemeanor and carries a penalty range of up to one year in a county jail and/or up to a $4000 fine. More serious classifications, such as making a threat with the intention to place a group of people in fear of imminent serious injury is a third-degree felony and an offender could face anywhere between two and 10 years of imprisonment and up to a $10,000 fine.

Multiple teens across Texas have been charged with making terroristic threats after joining in on the clown craze. In Rockwall, a 13-year old student at Utley Middle School was charged with making a terroristic threat after she posted a “hit list” online naming students who would be “taken out” at a clown-related school shooting. Just south of Rockwall, in Mansfield, a 14-year old student faces similar charges for creating a Twitter page called “MTX Killer Clown” and posting now-deleted threats against their school. Similarly, a 16-year old girl in River Oaks has been charged with making terroristic threats after creating a fake clown-themed Twitter account and tweeting she would “shoot up Castleberry High School.” Authorities have reported that in all of these cases, the accused teens expressed remorse and claimed that their actions were nothing more than pranks. However, as Lieutenant Chuck Stewart with the River Oaks Police Department stated, “It has to be treated as a serious matter” and authorities across the state are doing just that.

Can you protect yourself against criminal clowns?

CASTLE DOCTRINE

With a new clown-based story being reported each time you turn on the news, you may be wondering how you can legally protect yourself against clown attacks and clown threats. In 2007, Texas enacted the Castle Doctrine, commonly referred to as the “Stand Your Ground” law, as Texas Penal Code 9.32(c). The Castle Doctrine relieves a person of the duty to retreat when he is justified in using deadly force against another if (1) he has a right to be present at the location where the deadly force is used, (2) he has not provoked the person against whom the deadly force is used, and (3) he is not engaged in criminal activity at the time that the deadly force is used. Texas Penal Code 9.32(d) further provides that in determining whether or not the actor’s belief was reasonable, the trier of fact may not consider whether the actor failed to retreat. In other words, a person generally does not have to retreat on their property and their decision not to retreat cannot be used as a fact against them in determining whether their belief that deadly force was needed was a reasonable belief or not.

While our law provides that verbal threats alone are insufficient provocation to invoke the Castle Doctrine, a threat accompanied with the use of a weapon may be sufficient to invoke the law’s protections. So, if a clown approaches you and says, “I will kill you”, there may not be enough provocation to use deadly force. However, if the clown says “I will kill you” while holding a baseball bat, the threat goes beyond mere words. The clown would then have the ability to carry out his threat which could justify the use of deadly force.  When it comes to trespasser clowns, the act of trespassing alone will not give rise to the lawful use of deadly force.  However, there is a presumption that deadly force is immediately necessary when someone has unlawfully entered your property by using force. Deadly force may also be used against an intruder at night who you reasonably believe will imminently commit theft or criminal mischief. So, while deadly force is allowed in specific trespasser and immediate harm situations, always hold your fire when faced with words alone.

OPEN CARRY LAW

Another issue that comes into play when discussing self-defense, is the effect of open carry laws. The open carry law, House Bill 910, took effect in Texas on January 1, 2016, and has already made its way into the clown craze narrative. The laws authorize individuals to obtain a license to openly carry a handgun in the same places that allow the licensed carrying of a concealed handgun, with a few exceptions. Earlier this week in Plano, authorities warned those masquerading themselves as clowns that their actions could have deathly implications, after a young man was accosted by what he described as a scary clown.  The incident occurred on the walking trail at Russell Creek when an individual dressed as a clown and carrying a bat approached the young man and asked, “Do you wanna play a game?”  The young man shielded himself from the bat with one hand and punched the clown in the face with enough force that the clown retreated into the woods. The young man told reporters that he normally carries a weapon but was not on the day of the attack. David Tilley of the Plano Police Department warned those involved in the clown hysteria, “This can be a deadly game. We’re in Texas. People carry.”

Could your response to the clown craze land you in trouble with authorities?

FALSE REPORTING

Along with criminal charges being brought against those dressing as the clowns themselves, authorities are also charging individuals who make false reports to law enforcement or create false alarms within their communities. In Texas, there are two offenses in the penal code that relate to such charges.  Section 37.08 of the Texas Penal Code criminalizes false reporting to a peace officer, federal special investigator, or law enforcement employee, if a person with intent to deceive,  knowingly makes a false statement that is material to a criminal investigation and makes the statement to: (1)  a peace officer or federal special investigator conducting the investigation; or (2)  any employee of a law enforcement agency that is authorized by the agency to conduct the investigation and that the actor knows is conducting the investigation. Such an offense is a Class B misdemeanor, carrying a punishment of up to 180 days in a county jail and/or up to a $2000 fine.

A similar, but more serious crime is found in Section 42.06 of the Texas Penal Code. A person commits an offense of creating a false alarm or false report if he knowingly initiates, communicates or circulates a report of a present, past, or future bombing, fire, offense, or other emergency that he knows is false or baseless and that would ordinarily: (1)  cause action by an official or volunteer agency organized to deal with emergencies; (2)  place a person in fear of imminent serious bodily injury;  or (3)  prevent or interrupt the occupation of a building, room, place of assembly, place to which the public has access, or aircraft, automobile, or other mode of conveyance. While this offense is a Class A misdemeanor and carries a penalty range of up to one year in a county jail and/or up to a $4000 fine, if the false alarm or report involves a public or private institution of higher education or involving a public primary or secondary school, public communications, public transportation, public water, gas, or power supply or other public service, the offense is a state jail felony and carries a penalty of six months to two years in a state jail facility.

Because authorities are devoting so much time to investigating clown-related reports, police departments are nearing a zero tolerance policy when it comes to false reporting. In New Mexico, the Hobbs Police Department issued a public statement on its Facebook page bringing this issue to light.  As they explained, false sighting reports “tie up valuable emergency communications and police response personnel.” According to the New York Times, as of September 29th, twelve people faced charges of making false reports. In the article, experts cite mass hysteria as one of the contributors of the large number of false reports to law enforcement agencies. It would follow that the effects on law enforcement capabilities due to the flood of false reporting could likely lead to heightened unrest within the community, and ultimately result in increased criminal activity.

MURDER

Many citizens have also expressed outrage at the clown craze, leading authorities to release statements deterring clown-related mischief.  In Fort Worth, the police department issued a statement warning the people carrying out clown pranks that “their acts could cross the line into criminal activity and they could be subject to arrest,” and also warned that “in this day and age, the general public is hyper-vigilant and more willing to protect themselves and their families using force if necessary.”

This idea was echoed across the nation, where in Florida, Pasco county authorities told the media “our citizens are frustrated with everything going on in society and this is another issue to address.”  He further stated “we are warning teens and young adults not to get involved in this fad of dressing up as clowns to cause fear, because eventually someone is going to perceive their actions as a threat and take justice into their own hands.

In Denton, a police officer has found herself amidst a cloud of controversy for her response to the  @ClownParanoia “Clown Sightings” Twitter account. The Clown Sightings page posted a picture of a clown sitting on a public bench in an undisclosed urban area. Officer Latrice Pettaway reportedly posted on Facebook, “Please handle it. Pop a cap in the first clown you see. Someone needs to just hit one and the rest of these fools will learn.”

While many may relate to Officer Pettaway’s frustration, dressing up as a clown is in and of itself not a criminal offense and murder statutes in Texas do not provide protection for vigilante justice. One commits the offense of murder, per is Section 19.02 of the Texas Penal Code, if he “intentionally or knowingly causes the death of an individual; (2)  intends to cause serious bodily injury and commits an act clearly dangerous to human life that causes the death of an individual;  or (3)  commits or attempts to commit a felony, other than manslaughter, and in the course of and in furtherance of the commission or attempt, or in immediate flight from the commission or attempt, he commits or attempts to commit an act clearly dangerous to human life that causes the death of an individual.”  If convicted, an offender would face imprisonment of five to ninety-nine years.  So, while the clown-craze most certainly needs to come to an end, taking matters into your own hands would ultimately put you in the same situation as many of the clown imposters find themselves in– facing serious criminal charges.

With special thanks to Deborah Bankhead for her assistance researching and writing this article.

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