Among the bills Tennessee lawmakers will consider this week during a special session on public safety is one that would create a new felony offense for making a threat of mass violence.  

“We’re looking for someone serious about blowing up Second Avenue. We’re talking about a patient making threats to kill a physician. We’re talking about someone plotting to shoot up a school,” Sen. Ferrell Haile, a Republican from Gallatin who introduced the measure, said Friday

In the instances cited by Haile – the 2020 Christmas Day bombing in downtown Nashville, the murder of a Collierville surgeon by a patient in July and the mass shooting that left six people dead at The Covenant School in March – police and witnesses said the adult perpetrators had made verbal or written threats in the hours, weeks and months before they carried out their crimes.

Youth advocates, however, say they are deeply concerned about the bill’s potential impact on kids. 

“I think we’re going to see a significant number of kids charged with this offense and I think it’s going to be students with disabilities,” said Cara Suvall, associate professor of law at Vanderbilt University Law School. “And I think those kids are going to be in the system longer”

The law is written so vaguely that it could sweep kids making even relatively mild or minor statements into the adult criminal justice system, Suvall said. 

Kids with disabilities that limit their abilities to regulate impulse and emotions may be at greatest risk, she said. Suvall described the drawings of epic battles her own  elementary school child creates. Could those be perceived as a threat of mass violence under the proposed new bill?

In an environment in which teachers and school administrators, either as a result of liability fears or to err on the side of caution, such scenarios of kids being arrested, placed in custody pending a security assessment, then appearing before a criminal court judge – as the bill calls for – are not far-fetched, according to Suvall.

The bill, co-sponsored by Rep. Mark Cochran, a Monroe County Republican, would create two new felony offenses: one for recklessly making a threat of mass violence against two or more individuals and another more serious felony if that threat is directed toward a school, college, church, concert, government office or spaces in which 250 or more people are gathered.

The bill would require anyone charged with the crime to be detained without bail until a Department of Homeland Safety team conducted a threat assessment. 

Judges would also be required to order a separate evaluation for involuntary psychiatric hospitalization as a condition of release. 

Only criminal, circuit and general court sessions judges would make these decisions –  not juvenile court judges, according to the bill’s language.

The bill is the latest introduced in recent years that is aimed at giving law enforcement more power to arrest both adults and kids who are suspected of making verbal or written threats of mass violence. 

In 2021, the legislature created a misdemeanor for making a threat of mass violence towards a school. Beginning in July of this year, a new state law adds making a threat of mass violence to a list of zero-tolerance offenses in all public schools. Such offenses come with a mandatory one-year school expulsion. 

I think we’re going to see a significant number of kids charged with this offense and I think it’s going to be students with disabilities.

– Cara Suvall, associate professor law, Vanderbilt University

Haile said Friday he does not envision kids mouthing off or acting out being charged under the proposed new criminal offense. 

“If you’ve got a 14- or 15-year-old kid spouting off, we don’t want them arrested,” he said. “We don’t want that on their record.”

Haile noted that police and prosecutors would have discretion in pursuing charges; they could elect to bring no charges, charge with the misdemeanor law already on the books or bring the more serious charge he is proposing. 

“This is a tool we believe law enforcement should have,” he said. “Not everyone with mental health problems are violent. In fact very few are. Not everyone with hate in their heart is going to have a mental health illness.”

Zoe Jamail, policy director for Disability Rights Tennessee, pointed to the language of the bill that defines the felony act as one being taken “recklessly,” a standard that falls short of “intentional” or “knowing” acts spelled out in other criminal laws. 

“One of the problematic aspects is that it doesn’t require intent,” Jamail said. “These may be kids making one-time outbursts that really don’t rise to the level of a threat.”

Jamail said she also has a broader concern with bills like this one heading into the special legislative session, where a slate of proposals imposing harsher penalties on kids and teens have been filed as late as Friday. 

“It’s hard to have meaningful conversations about unintentional consequences,” she said. “It’s hard to provide feedback. We don’t even know what committees will meet. It’s hard to know who even to talk to.”

Juvenile crime and arrest data is not fully centralized in Tennessee, making it difficult to track a variety of charges, including the extent to which youth have faced charges under the 2021 misdemeanor threat of mass violence statute.

Disciplinary data obtained from Metro Nashville Public Schools shows that, in the 2022-2023 school year, there were 698 instances in which a child made a threat to harm students, staff or the school “in which no plan exists to carry out the threat.”

An additional 117 were reported to have made written or verbal threats that “include a detailed plan.” An MNPS spokesperson noted that these numbers may be preliminary and entered before a full investigation was conducted that could have determined the threats were less severe.

Fewer than ten kids were arrested for making such threats in Nashville schools last year. The majority were given in- and out-of-school suspensions, detention and other in-school discipline, including restorative conferences.

Suvall noted that schools are already experienced and largely well-suited to assessing risk.

In-school teams may interview teachers, parents and the student to determine what is going on in the life of a child and whether a threat should be taken seriously.

School teams are also guided by federal law that require them to consider whether the threat is a manifestation of a child’s disability – a protection for kids with disabilities in educational settings that disappears once a child is in police custody.

This legislation is worded so broadly that it could potentially criminalize a wide range of adults and children who do not have any intent of actually causing harm or making a threat — people who are actually just exercising their constitutionally-protected right to free speech.

The school based risk-assessment takes time, she noted. It’s unclear how much time a child or adult could be detained before a bail hearing under the proposed new law’s requirement they are first assessed by a homeland security team – or whether that department has the resources to routinely conduct those investigations. 

Haile suggested on Friday that the Department of Homeland Security would need to be expanded to accommodate the new requirement. No fiscal note has yet been prepared outlining the potential costs tied to the bill. Haile said Friday he expected the cost be significant.

Other advocates raised broader concerns for adults as well as youth who may be charged under the new felony.

“Actual threats of mass violence should be taken seriously and handled carefully,” Bryan Davidson, ACLU of Tennessee policy director, said.

“However, this legislation is worded so broadly that it could potentially criminalize a wide range of adults and children who do not have any intent of actually causing harm or making a threat — people who are actually just exercising their constitutionally-protected right to free speech.”