Author’s note: On March 28, 2025, and after this month’s Newsletter was finalized, the Supreme Court entered a peremptory order that vacated the Court of Appeals’ decision in Kvasnicka, and, without expressing an “opinion on whether MCL 750.543m violates constitutional free-speech protections,” remanded for reconsideration as to whether other statutory provisions or canons of statutory construction could be used to avoid deeming MCL 750.543m facially unconstitutional and completely unenforceable. We will provide an update in next month's issue.

In People v Kvasnicka, __ Mich App __ (2025) (Docket No. 371542), the Michigan Court of Appeals held that MCL 750.543m, the statute that defines the twenty-year felony commonly referred to as “terroristic threats,” is facially unconstitutional, and therefore, unenforceable. Just seven days after the opinion issued, the Wayne County Prosecutor filed an application for leave to appeal the opinion to the Supreme Court, a motion for immediate consideration, and a motion to stay the precedential effect of the Court of Appeals decision pending the appeal. The Michigan Attorney General filed an amicus brief in support of the application and motions, and issued a press release “warn[ing] that without swift action, the ruling could leave courts and prosecutors in uncertainty.”¹ 

Defense attorneys and defendants charged with or convicted of making terroristic threats are also confused about what the decision means and what they should do next. The uncertainty is understandable, as it is extremely rare for a statute defining a criminal offense to be struck down in its entirety. It appears that the Michigan Court of Appeals and Supreme Court collectively invalidate about one statute defining a criminal offense per decade. In 2012, the Court of Appeals invalidated a law making it a felony to possess a stun gun inside one’s home,² and in 2002, it declared a misdemeanor that prohibited the use of “any indecent, immoral, obscene, vulgar or insulting language in the presence or hearing of any woman or child” void and unenforceable.³ This article explains the history of the terroristic threats law, the basis for and significance of the Court of Appeals’ ruling, and how defendants charged with or convicted of violating MCL 750.543m are likely to proceed.

Seven months after September 11, 2001, Michigan enacted the ‘Michigan Anti-Terrorism Act’, MCL 750.543a, et seq., which created four new offenses: terrorism,⁴ hindering prosecution of terrorism,⁵ soliciting or providing material support for terrorism⁶ and making terroristic threats or falsely reporting an act of terrorism.⁷ Actual terrorism is punishable by up to life in prison, while each of the other three offenses are punishable by a 20-year maximum sentence. 

The first time that the Michigan Court of Appeals or Michigan Supreme Court interpreted MCL 750.543m was in People v Osantowski. Mr. Osantowski was a 17-year-old high school student when he sent several messages over the internet to a girl in Washington, claiming that he would be famous after killing his family and everyone at his school. The girl reported their conversation to her parents, who relayed them to the authorities in Michigan. Police raided Mr. Osantowski’s house and found an AK-47 and a homemade ‘pipe bomb’. He was charged with and convicted of terroristic threats, using a computer to commit a crime (making terroristic threats), and possession of a firearm while committing a felony (terroristic threats). He was sentenced to a 30-month minimum sentence for terroristic threats, consecutive to a two-year sentence for felony firearm. 

On appeal, Mr. Osantowski argued that MCL 750.543m(1)(a) was unconstitutionally vague, overbroad, and infringed the First Amendment because “the statute does not require either an overt act to effectuate the threat or the communication of the threat to the intended victim.”⁸ The Court of Appeals rejected these arguments, and held that when properly constructed, the statute only criminalizes true threats, and therefore, did not violate the First or Fourteenth Amendment.⁹ It also rejected Mr. Osantowski’s argument that if MCL 750.543m is constitutional, it must be interpreted to require proof of the defendant’s intent to intimidate,¹⁰ holding that the mens rea element was encompassed within the nature of the type of speech the statute prohibits: “ ‘True threats’ encompass those 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,” so “the only intent that the prosecution had the burden to prove was defendant's general intent to communicate a ‘true threat.’¹¹ 

The Michigan Supreme Court reversed the Court of Appeals on a sentencing issue, but denied Mr. Osantowski leave to appeal his convictions,¹² and the US Supreme Court denied his petition for certiorari.¹³ Mr. Osantowski also unsuccessfully challenged the constitutionality of the law in a habeas petition,¹⁴ before being released from prison on parole in 2010.¹⁵ 

The Court of Appeals would re-affirm and expand its holding in Osantowski in People v Byczek, 337 Mich App 173 (2021). Mr. Byczek was charged with making a terroristic threat after he got into an argument over the phone with an Iron County Sheriff’s Deputy about whether he was required to submit a written request to obtain the documents he was seeking or money he was owed. Mr. Byczek eventually told the deputy if he was not given what he was asking for, “it was going to be hashtag Las Vegas,” an apparent reference to a mass shooting that had occurred two weeks earlier, and enough for a unanimous jury to find him guilty of making a terroristic threat.¹⁶ After being sentenced to 7- to 30-years in prison for the conviction, Mr. Byczek argued on appeal that his statement regarding Las Vegas was not a “threat” within the meaning of the statute, so there was insufficient evidence to convict him. 

The Court of Appeals majority held that “to demonstrate that a defendant is guilty of making a terrorist threat under MCL 750.543m(1), the prosecution must prove that the defendant (1) threatened to commit an act of terrorism and (2) communicated the threat to another person.” This meant that the prosecution was only required to prove “the defendant's general intent to communicate a true threat; that is, the ‘communication of a serious expression of an intent to commit an act of unlawful violence to a particular individual or group of individuals,’ made with “an intent to ‘intimidate or coerce.’¹⁷ According to the majority, in enacting MCL 750.543m(1)(a), the Legislature intended to provide for “a lesser mens rea than is required for a complete substantive offense,” and so it did not require “that a defendant have the mens rea of intending to intimidate a particular population or government; the transmission of a threat to commit an act that would have that effect is sufficient.”¹⁸ There was sufficient evidence to convict because a jury could reasonably find “that by saying “it's going to be hash tag Las Vegas” defendant communicated that he was going to commit a willful and deliberate act (1) that would be a violent felony under the laws of this state, (2) that he knew or had reason to know was dangerous to human life, and (3) that would be intended to intimidate or coerce a civilian population or to influence or affect the conduct of government or a unit of government through intimidation or coercion.¹⁹ Judge Boonstra vigorously dissented from this aspect of the majority’s opinion, asserting that it was contrary to the Legislature’s intent and warning that its interpretation of the statute and deference to prosecutors and juries would lead to political prosecutions.²⁰ According to Judge Boonstra, “the entire framework for the prosecution and trial of this case was built around a misconception of the law, i.e., that the prosecution need only prove that a threat, rather than the act threatened, was intended to intimidate or coerce, in order to secure a conviction of threatening an act of terrorism in violation of MCL 750.543m(1).²¹ 

The Michigan Supreme Court denied leave to appeal without explanation.²² 

Just two months after the Michigan Court of Appeals affirmed Mr. Byczek’s conviction for making a terroristic threat, the Colorado Court of Appeals affirmed Billy Counterman’s conviction of stalking, causing emotional distress. This decision would ultimately result in the Court of Appeals reversing its decisions in Byczek and Osantowski and concluding that MCL 750.543m(1) is facially unconstitutional.

After he sent numerous intimidating Facebook messages to local country music singer, Mr. Counterman was convicted of violating a Colorado law that prohibits “knowingly … make[ing] any form of communication with another person … that would cause a reasonable person to suffer serious emotional distress and does cause that person … to suffer serious emotional distress²³ The Colorado Court of Appeals rejected Mr. Counterman’s argument that the statute was unconstitutional as applied to his communications, and held that his messages to the singer, such as “I've had tapped phone lines before. What do you fear?” and “You're not being good for human relations. Die. Don't need you,” when taken as a whole, constituted a true threat and were not entitled to constitutional protection.²⁴ The Colorado Court of Appeals also rejected Mr. Counterman’s assertion that the jury should have been instructed that it could only find him guilty if it found his communications constituted a true threat because the error was unpreserved and was not plain.²⁵ 

The US Supreme Court granted Mr. Counterman’s petition for certiorari and held that to establish that a statement is a ‘true threat’, unprotected by the First Amendment, the government must show that the speaker acted recklessly in regard to the threatening nature of the statement and how it would be interpreted.²⁶ Mr. Counterman’s conviction was invalid because “[t]he State had to show only that a reasonable person would understand his statements as threats,” and “did not have to show any awareness on his part that the statements could be understood that way.”²⁷ 

The majority concluded criminalizing the communication of true threats without requiring the prosecution to establish the defendant intended or knew that his words would be construed as a true threat could have a chilling effect on constitutionally protected speech because a “speaker’s fear of mistaking whether a statement is a threat; his fear of the legal system getting that judgment wrong; his fear, in any event, of incurring legal costs … may lead him to swallow words that are in fact not true threats.²⁸  Therefore, the Court held that to convict a defendant of an offense involving the communication of a true threat, “[t]he State must show that the defendant consciously disregarded a substantial risk that his communications would be viewed as threatening violence.²⁹

On remand from the US Supreme Court to the Colorado Court of Appeals, Mr. Counterman did not argue that the Colorado stalking statute was unconstitutional because it lacked a mens rea element, only “that the Supreme Court's mandate requires reversal and that the case be remanded for a new trial.³⁰ The Colorado Court of Appeals agreed and remanded for a new trial. 

Mr. Kvasnicka was charged with making terroristic threats because he warned a girl he was speaking with on social media that she was “not gonna be laughing once I come to your school and shoot it up or blow it up like [C]olumbine”³¹ He filed an interlocutory leave application after the Wayne County Circuit Court denied his motion to dismiss in June 2024. Last month, a unanimous Court of Appeals panel, with Judge Boonstra presiding, ordered that the charge be dismissed, and held that that MCL 750.543m(1)(a)(i) is void. “[B]ecause there is no statutory language suggesting that the prosecutor must prove that the defendant consciously disregarded a substantial risk that his communications would be viewed as threatening violence, we conclude that MCL 750.543m(1)(a)(i) is unconstitutional”32

The Wayne County Prosecutor has asked the Supreme Court to grant leave to appeal and reverse, but published Court of Appeals decisions, like Kvasnicka, become binding precedent when they are issued, even if one or both parties seek leave to appeal, and even after the Supreme Court grants leave.³³ This means that lower courts will be required to comply with Kvasnicka’s ruling that MCL 750.543m(1)(a) is facially invalid unless and until the Michigan Supreme Court stays that precedential effect of Kvasnicka or reverses its central holding. 

A decision declaring a penal statute facially unconstitutional is “fully retroactive,” rendering it “void on the date it was passed.”³⁴ Circuit courts have “jurisdiction over all felonies from the bindover,”³⁵ but “[w]here an information charges no crime, the court lacks jurisdiction to try the accused, and a motion to quash the information or charge is always timely.”³⁶ Court may relieve any party from a final judgment where “[t]he judgment is void.”³⁷

Individuals charged with making a terroristic threat are entitled to the exact same relief the Court of Appeals granted to Mr. Kvasnicka. They should promptly move to dismiss the charge, and any other charges predicated on making terroristic threats, such as using a computer to commit a crime or felony firearm. Courts must dismiss any unconstitutional charge,³⁸ binding precedent dictates that MCL 750.543m(1)(a) is facially unconstitutional, and “lower courts must follow decisions of higher courts even if they believe the higher court's decision was wrongly decided or has become obsolete.³⁹

Individuals convicted of making terroristic threats who can still appeal directly should do so and should request the appointment of appellate counsel to assist them in their direct appeal if they cannot afford to hire an attorney. 

If possible, defendants convicted at trial should file a postconviction motion in the trial court to vacate the conviction and sentence and dismiss the charge based on Kvasnicka directly. If filing a postconviction trial court motion is no longer possible because, for example, they have already filed a brief on appeal, they can file a motion to remand so they can motion the trial court to vacate the sentence and dismiss the charge.

Defendants convicted by plea of making terroristic threats may need to exercise additional caution, however. While they are almost certainly entitled to plea withdrawal, if they pled in exchange for dismissal of other charges or some other consideration, then plea withdrawal almost certainly means reinstatement of the dismissed charge(s) and forfeiture of the consideration.⁴⁰ Those who pled guilty to another offense in exchange for dismissal of a terroristic threat charge may also be entitled to plea withdrawal based on the illusory consideration they were provided in exchange for waiving their right to a trial.⁴¹

 

Individuals convicted of making terroristic threats that are no longer entitled to appeal directly are entitled to seek relief from judgment of their conviction by filing a 6.500 motion, even if they have previously filed a 6.500 motion, and/or unsuccessfully challenged the constitutionality of their conviction. 

Defendants may file a successive motion for relief from judgment based on “a retroactive change in law that occurred after the first motion for relief from judgment was filed.”⁴² While no existing precedent has addressed whether Kvasnicka is retroactive, the US Court of Appeals for the Fourth Circuit has already held that Counterman announced a new substantive rule of constitutional law that was unavailable to other defendants before it issued.⁴³ As a result, it held that defendants convicted of federal crimes involving true threats could file successive motions to vacate their convictions for offenses, pursuant to 28 USC 2255, the federal analogue to Chapter 6.500 of the Michigan Court Rules. While courts are generally precluded from granting relief from judgment based on an argument that was previously decided against the defendant in a prior appeal or 6.500 motion, this rule does not apply if “a retroactive change in the law has undermined the prior decision.”⁴⁴ Even if the Supreme Court were to reverse Kvasnicka, it cannot reverse Counterman, and anyone who has been convicted of making terroristic threats was convicted in violation of Counterman because the prosecution was not required to prove beyond reasonable doubt that they consciously disregarded a substantial risk that his communications would be viewed as threatening violence. 

Jurisdictional defects may also be raised in a successive motion for relief from judgment and also serve as a basis for courts to grant relief from judgment.⁴⁵ As noted above, the declaration that MCL 750.543m(1)(a) is facially unconstitutional rendered it retroactively void,⁴⁶ and “[w]here an information charges no crime, the court lacks jurisdiction to try the accused.”⁴⁷ “[O]ur caselaw establishes that the trial court's judgment of sentence, rendered when the trial court lacked subject-matter jurisdiction, was void ab initio.⁴⁸ 

This Court of Appeals’ decision in Kvasnicka could, and almost certainly will, afford relief to numerous people. It is unclear just how many defendants are presently charged with making a terroristic threat or how many defendants have already been convicted of the offense. In explaining why she was concurring with the majority’s denial of leave to appeal the proportionality of a 10-year minimum sentence for making terroristic threats, Justice Welch lamented the lack of available sentencing data with which to compare the defendant’s sentence.⁴⁹ Of the individuals convicted of making terroristic threats that this author was able to locate using the MDOC’s Offender Tracking Information System (OTIS) website, it appears that defendants are most frequently sentenced to between 2- and 8-year minimum sentences, but there are a handful of inmates serving more than 10-year minimum sentences, and at least one serving a more than 30-year minimum sentence. The nature of the offense, the age of the defendants in Osantowski and Kvasnicka, and the circumstances of youth suggest that many juveniles have also been charged with violating MCL 750.543m.

While the Court of Appeals rejected the prosecution’s argument that the Model Jury Instruction could cure MCL 750.543m constitutional defects because a Model Instruction is not a statute, appellate courts frequently read language into or out of statutes to preserve the law in some form.⁵⁰ In People v Burkman, 513 Mich 300 (2024), for example, the Court concluded that a catchall provision within the statute that defines election fraud rendered the statute overly broad, and thus, unconstitutional, but instead of invalidating the statute, the Court “offer[ed] a limiting construction of MCL 168.932(a)’s catchall ‘other corrupt means or device’ language.”⁵¹ In 1980, the Michigan Supreme Court read an actual “malice” element into the definition of felony murder,⁵² and it is still considering whether its ruling was too narrow 45 years later.⁵³

Given the likely impact and broad holding of the Kvasnicka decision, it seems fairly likely that the Michigan Supreme Court will grant leave to consider whether MCL 750.543m(1)(a) is facially unconstitutional and beyond salvage. But even if the Court were to ‘cure’ its constitutional deficiency by reading a mens rea element in the statute, it is doubtful that any conviction could stand that was rendered without a jury finding proof beyond reasonable that the defendant consciously disregarded a substantial risk that his communications would be viewed as threatening violence.

¹ Michigan Department of Attorney General, AG Nessel Supports Wayne County in Urging Michigan Supreme Court to Reinstate Anti-Terrorism Law, March 3, 2025) <https://www.michigan.gov/ag/news/press-releases/2025/03/03/ag-nessel-supports-wayne-county-in-urging-michigan-supreme-court-to-reinstate-anti-terrorism-law> (accessed March 18, 2025). 

² People v Yanna, 297 Mich App 137 (2012), citing MCL 750.224a, 2006 PA 457. 

³ People v Boomer, 250 Mich App 534, 536 (2002), citing MCL 750.337. In People v Rapp, 492 Mich 67 (2012), the Supreme Court held that the portion of Michigan State University Ordinance § 15.05, which provided: “[n]o person shall disrupt the normal activity … of any person … while that person ... is carrying out service, activity or agreement for or with the University” was unconstitutionally vague and invalidated the entire ordinance. But an ordinance violation is not a felony, or even a misdemeanor conviction.

⁴ MCL 750.543f.

⁵ MCL 750.54.

⁶ MCL 750.543k.

⁷ MCL 750.543m.

⁸ People v Osantowski, 274 Mich App 593, 601 (2007).

⁹ Id. at 603. 

¹¹ Id. at 604-605, quoting Virginia v Black, 538 US 343, 359-360 (2003).

¹² People v Osantowski, 481 Mich 103 (2008).

¹³ Osantowski v Michigan, 555 US 1015 (2008).

¹⁴ Osantowski v Wolfenbarger, No. 2:08-CV-13759, (ED Mich, June 8, 2010); Osantowski v Wolfenbarger, No. CIV. 08-13759 (ED Mich, July 15, 2010).

¹⁵ Macomb County Prosecutor v Osantowski, 488 Mich 952 (2010).

¹⁶ People v Byczek,P 337 Mich App 173, 178 (2021).

¹⁷ Id. at 185–186, quoting Osantowski, 274 Mich App at 603, 605.

¹⁸ Id. at 193.

¹⁹ Id. at 187.

²⁰ Byczek, 337 Mich App at 196-198 (Boonstra, P.J., dissenting in part). 

²¹ Id. at 212.

²² People v Byczek, 509 Mich 938 (2022).

²³ Colo Rev Stat Ann 18-3-602(1)(c).

²⁴ People v Counterman, 497 P3d 1039, 1046 (Colo App, 2021).

²⁵ Id. at 1051. 

²⁶ Counterman v Colorado, 600 US 66, 78 (2023).

²⁷ Id. at 78.

²⁸ Counterman, supra note 26.

²⁹I d. at 69. 

³⁰ People v Counterman, unpublished opinion of the Colorado Court of Appeals, dated June 13, 224 (Docket No. 17CA1465).

³¹ People v Kvasnicka, __ Mich App __ (2025) (Docket No. 371542).

³³ MCR 7.215(C)(2). 

³⁴ People v Smith, 57 Mich App 556, 563 (1975).

³⁵ MCR 6.008(B).

³⁶ People v Hardiman, 132 Mich App 382, 384 (1984).

³⁷ MCR 2.612(C)(1)(d). 

³⁸ See People v Yanna, 297 Mich App 137, 142 (2012); People v Guy, 84 Mich App 610, 612 (1978)

³⁹ People v Dixon-Bey, 340 Mich App 292, 298 (2022), citing Paige v Sterling Hts, 476 Mich 495, 524 (2006). See also Pellegrino v AMPCO Sys Parking, 486 Mich 330, 352–353 (2010) (“trial courts are required to follow applicable rules, orders, and caselaw established by appellate courts”).

⁴⁰ MCR 6.312; People v Smith, 502 Mich 624 (2018).

⁴¹ MCR 6.502(G)(2)(a).

⁴² In re Rendelman, 129 F4th 248, 253 (CA 4, 2025).

⁴³ MCR 6.508(D)(2).

⁴⁴People v Carpentier, 446 Mich 19, 27 (1994).

⁴⁵ Smith, 57 Mich App 563.

⁴⁶ Hardiman, 132 Mich App at 384.

⁴⁷ MCR 6.508(D)(3); People v Washington, 508 Mich 107, 131 (2021).

⁴⁸ People v Allen, __ Mich __; 11 NW3d 294 (2024) (Welch, J., concurring).

⁴⁹ Judicial Attorney’s Association v State, 459 Mich 291, 303 (1998); United States v Salerno, 481 US 739, 745 (1987).

⁵⁰ Id. at 340. 

⁵¹ People v Aaron, 409 Mich 672 (1980).

⁵² People v Langston,2  __ Mich __; 15 NW3d 820 (2025).