Posts Such As “Every Ice Gestapo Needs Too Be Shot” May Be Constitutionally Unprotected True Threats

From last week’s decision in U.S. v. Murfin by Judge Gregory Frizzell (N.D. Okla.):

At various times from July to October, 2025, Mr. Murfin allegedly posted the following five statements on the social media platform, “X” (formerly known as Twitter) under the alias “Azulenq”:

“Need too start shooting these ‘just following orders’ pigs. Ice agents are reenacting ww2 nazi germany and its not acceptable. Only good ice terrorist is buried 6 feet under.”;

“Every ICE agent needs shot between the eyes ‘just following orders’ isn’t acceptable and they already exposed they are human garbage.”;

“Every Ice gestapo needs too be shot. 2nd amendment right too carry everyone should stay armed and when these terrorists come by just kill them. They dont deserve too live after ‘just following orders’ we aren’t reliving ww2 germany. They dont want due process so show em.”;

“but we as US citizens should be gunning down these domestic terrorists. All ice gestapo can not use the ‘just following orders’ excuse. If you’re complicit in this act you’ve gotta be executed for this act.”; and

“Yeah ICE agents need to get shot in a 3,959 mile radius no where safe for gestapo pigs.”

Murfin was prosecuted under federal threat statutes, and the court allowed the case to proceed:

[The relevant statutes] “apply only to ‘true threat[s]’—i.e., threats outside the protective scope of the First Amendment.” “The Supreme Court in Virginia v. Black (2003) defined ‘true threats’ as ‘statements where the speaker means to communicate a serious expression of an intent to commit an act of unlawful violence to a particular individual or group of individuals.'” The speaker, however, “need not intend to actually act upon the threat.” As the Tenth Circuit has explained:

It is not necessary to show that [Mr. Murfin] intended to carry out the threat, nor is it necessary to prove he had the apparent ability to carry out the threat. The question is whether those who hear or read the threat reasonably consider that an actual threat has been made. It is the making of the threat and not the intention to carry out the threat that violates the law.

U.S. v. Dillard (10th Cir. 2015). A true threat must be “a serious threat as distinguished from words as mere political argument, idle talk or just.” … When analyzing a statement’s language, the Tenth Circuit has “warned against ‘rigid adherence to the literal meaning of a communication without regard to its reasonable connotations ….'” “A defendant cannot escape potential liability simply by using the passive voice or couching a threat in terms of ‘someone’ committing an act of violence, so long as a reasonable recipient could conclude, based on the language of the communication and the context in which it is delivered, that this was in fact a veiled threat of violence by the defendant …” Dillard.

Upon review of the indictment and the briefs submitted by the parties, the court concludes that a reasonable jury could construe Mr. Murfin’s statements to be true threats—that they are statements where the speaker means to communicate serious expressions of intent to commit acts of unlawful violence to a group of individuals. Mr. Murfin targeted messages of deadly action at ICE agents generally: “Need too start shooting these ‘just following orders’ pigs …. Only good ice terrorist is buried 6 feet under.”; “Every ICE agent needs shot between the eyes”; “Every Ice gestapo needs too be shot …. everyone should stay armed and when these terrorists come by just kill them.”; “we as US citizens should be gunning down these domestic terrorists …. If you’re complicit in this act you’ve gotta be executed for this act”; “ICE agents need to get shot.” Mr. Murfin’s statements are similar to those in Stevens and Tinoco, where the defendants also targeted messages of deadly action at a particular law enforcement officer or a group of law enforcement officers generally. U.S. v. Stevens (10th Cir. 2018) (“The psychotic pile of s— who MURDERED the unarmed civilian who broke down is going to be executed …. unless the Prosecuter [sic] & the Judge deny bail, they too will be executed …. The Tulsa PD Chief is going to be killed …. EVERYONE on that list is going to start being killed. Cops, Prosecutors, Judges, family members …. If killing every last one of you … is what it takes to drive that point home, so be it …. Cops are going to be killed …. Betty is not going to get 3 yeas [sic] probation and a pension, she is getting a bullet through her brain.”); U.S. v. Tinoco (10th Cir. 2018) (Mr. Tinoco said, “[i]f [the United States Border Patrol agents] were iron deficient, [Tinoco] had banana clips for [the agents], and [Tinoco] could give [the agents] iron and potassium”; “I’m going to have your head”; [l]et’s have a shootout and end this right now …. I’ve been at shootouts before. I know what I’m doing”; and “I can be sure to come at your brain with a hammer drill as if I was searching for fucking gold”).

Mr. Murfin cannot escape liability by couching the statements in terms of a “need” to shoot or execute ICE agents. A reasonable reader of Mr. Murfin’s statements could conclude that the statements are “statements where the speaker means to communicate a serious expression of an intent to commit an act of unlawful violence to a … group of individuals.” Furthermore, a reasonable jury could find the statements to constitute serious threats as distinguished from “mere political argument, idle talk, or jest.” “[R]igid adherence to the literal meaning of a communication without regard to its reasonable connotations … would render the statute[s] powerless against the ingenuity of threateners who can instill in the victim’s mind as clear an apprehension of impending injury by an implied menace as by a literal threat.” …

With respect to statements posted on the Internet, the Circuit has noted:

Several attributes of the Internet substantially amplify the fear an individual can instill via threats or incitement. Such threats have the ability to reach a vast audience—far more than the traditional speaker or author published in a single venue. The threats may often come cloaked in anonymity, allowing authors to make menacing statements they would never consider making to an individual in person. And, given the prevalence and diversity of Internet fora and discussion boards, such exhortations may often find a receptive audience of like-minded individuals—perhaps audiences more willing to do the bidding of one urging violent action….

For these reasons, the court concludes that a reasonable jury could find that Mr. Murfin’s statements constituted true threats….

Mr. Murfin also argues that the Indictment should be dismissed with prejudice because plaintiff cannot plausibly make out a cognizable claim that his statements constitute incitement to imminent lawlessness or violence under Brandenburg v. Ohio (1969). “Under Brandenburg v. Ohio [395 U.S. 444, 447 (1969)], incitement speech is unprotected only if it is ‘directed to inciting or producing imminent lawless action and is likely to incite or produce such action.'” “But the line between threats and incitement, especially in cyberspace” is unclear “and no court has suggested that the categories of unprotected speech are completely distinct from one another.” Speech such as Mr. Murfin’s “fits squarely within the rationale for excluding true threats from First Amendment protection.” Dillard (“Imminence may contribute to a finding that a communication constitutes a true threat, but it is not a required element.”)….

For a similar recent decision, see the post See MAGA, Shoot MAGA” in TikTok Video Was Criminally Punishable Threat. For an older case along these lines, see U.S. v. Hussaini (S.D. Fla. 2022):

Mostafa Hussaini posted two videos on YouTube: in the first, he threatened to kill Christians by stabbing out their eyes with a knife; in the second, he promised to murder Black people by burning their bodies in a fire. After a concerned citizen brought the videos to law enforcement’s attention, a grand jury in our District indicted Hussaini on two counts of violating 18 U.S.C. § 875(c), which prohibits the transmission, in interstate or foreign commerce, of “any communication containing … any threat to injure the person of another.” …

[But i]t’s … no surprise that the only federal circuit court of appeals to address [the] question … whether § 875(c) requires that the threat be directed at a specific individual or group … has squarely rejected Hussaini’s position. See U.S. v. Cox (6th Cir. 1992) (“Cox would avoid responsibility under [§ 875(c)] by claiming that the alleged threat did not identify any specific person or group. We do not read the statute to be so limited, and Cox cites no cases that have placed this restrictive interpretation on the statute.”)….

AUSA Stephen N. Scaife represents the government.