An Arizona man is asking a U.S. court to dismiss a charge of making threatening online comments toward law enforcement days after participating in an online exchange with people who had carried out a deadly attack in Australia.
A lawyer for Donald Day Jr. of Heber, Arizona, said in a filing Tuesday that the two counts of interstate threats against his client should be thrown out because the indictment doesn’t allege that Day made statements of intent to harm any specific person.
Mark Rumold, who represents Day, also said Day’s online comments were not serious expressions of an intent to carry out violence and instead were protected speech under the First Amendment of the U.S. Constitution.
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The U.S. Attorney’s Office in Phoenix, which is prosecuting Day, declined to comment Thursday on the dismissal request.
Six people were killed in the attack in Australia in the rural community of Wieambilla on Dec. 12, 2022, investigators said. Two Queensland state police officers and a bystander were fatally shot by Gareth Train, his brother Nathaniel Train and Nathaniel’s wife, Stacey Train, in an ambush at the Trains’ remote property.
Officers went to the property to investigate reports of a missing person. Police killed the three Trains, who have been described as conspiracy theorists, during the six-hour siege. Police described it as a religiously motivated attack.
Gareth Train began following Day on YouTube in May 2020. A year later, they were communicating directly.
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Day, who has pleaded not guilty to the charges in Arizona, is now jailed while he awaits trial after a judge concluded he poses a danger to the community and could flee from authorities.
The indictment issued in late November alleged Day had "engaged in a course of conduct demonstrating a desire to incite violence and threaten a variety of groups and individuals including law enforcement and government authorities" from the beginning of 2022 until February 2023.
Prosecutors said in the indictment that Day made comments in response to a video posted by two of the people who had killed the officers in Australia and said "if you don’t defend yourself against these devils and demons, you’re a coward." The video was posted after the killings.
In his post, Day said he wished he could have been there with them and profanely said "that those bastards will regret that they ever" messed with them. Four days later, Day posted a video in which he said two of the people who carried out the violence against the officers did what they had to do because they would not submit "to a monster, to an unlawful entity, to a demonic entity."
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Day’s attorney said the charges against his client should be dismissed because neither involves a threat to a "natural person" or alleges a "true threat."
In one count, Day is accused of making threats four days after the killings in Australia to injure any law enforcement official who would come to Day’s home in eastern Arizona, about 145 miles from Phoenix. Rumold wrote that it was impossible to determine whether Day was threatening any particular person when he wrote that "the devils (who) come for us" will die.
On the other count, Day is accused of making online threats in 2023 to injure a person whose full identity isn’t provided in the indictment, though Day’s attorney said that person was Tedros Adhanom Ghebreyesus, director general of the World Health Organization. Rumold disputed that Day’s comments about the WHO official can be classified as "true threats" as a matter of law.
