Judge drops part of online threat case

A Flathead District Court judge has dismissed one of two charges pending against a Kalispell man accused of making online threats that claimed he wanted to shoot Kalispell school children and kill Jewish people.

Judge Heidi Ulbricht dismissed one felony count of criminal defamation on Tuesday, ruling that the state statute that criminalizes defamation is too broad and that David Joseph Lenio’s threatening remarks fall under the category of constitutionally protected free speech.

Ulbricht also cleared the way for Lenio to stand trial for intimidation.

Lenio, 28, made a number of online posts in February where he lamented being paid low wages and reasoned that his time might be better spent executing innocent school children.

“I bet I could get at least 12 unarmed sitting ducks if I decide to go on a killing spree in a school,” Lenio tweeted on Feb. 12. “Sounds better than being a wage slave.”

Later that day he wrote: “What do you think costs more in most U.S. cities? A gun with enough ammunition to kill 100 school kids or the security deposit on an apartment. ... What would I rather do? Be a #wage slave for the rest of my life or tell society f--- you & do your kids a favor by shooting up a #school?”

Two days later in a Twitter rant, he talked about taking out an entire classroom of students to “score 30+.” In the rant Lenio also called the Holocaust a lie and wrote that it “is now time to hunt the Nazi hunters.”

Lenio previously tweeted on Dec. 30, 2014, that he would like to shoot up Kalispell schools, and referred to the Sandy Hook school shooting in Connecticut in 2012.

Lenio was reported to police after his angry tweets were spotted by an anti-gun violence advocate.

When the Kalispell Police Department investigated on Feb. 16, officers were told by Lenio’s roommate that Lenio had brought guns and ammunition to the home the night before.

After obtaining a search warrant, officers found a 9-mm semi-automatic rifle and a Russian-made bolt-action rifle. Lenio’s vehicle contained a .32 caliber semi-automatic pistol and more ammunition. Marijuana and jugs of urine also were found in the vehicle.

Lenio was arrested later that day on his way home from Whitefish Ski Resort.

In an interview with police, Lenio claimed that he was only trying to bring attention to social issues and asked if police had responded to his threats by increasing their guard over school children.

“I thought I was careful to make it so I didn’t threaten anybody and break any laws,” Lenio told police and FBI investigators in a recorded interview.

While Judge Ulbricht agreed that Lenio’s tweets were protected by the Constitution and that he successfully toed the line of free speech, she didn’t agree that Lenio had not threatened anyone.

“Keeping in mind that the Court may use common sense and draw permissible inferences from the affidavit, Lenio’s alleged statements that he was glad that law enforcement had been more active in schools as a result of his postings, establishes at least a mere probability that Lenio sought to have another — law enforcement officers — perform an act in response to his postings about killing kids and shooting up schools,” Ulbricht wrote. “The charging documents show at least a mere probability that Lenio committed the offense of intimidation.”

Lenio has been out of jail since July. He is living with his father in Grand Rapids, Michigan, and is barred from posting on social media until the case is resolved. A jury trial is set for Nov. 2.

Flathead County District Attorney Ed Corrigan was out of the office Wednesday afternoon and could not comment on whether or not his office intended to appeal the judge’s decision.

Reporter Megan Strickland may be reached at 758-4459 or by email at mstrickland@dailyinterlake.com.