Could Sheriff Carmine Marceno be charged under Florida statute used to arrest Daniel Marquez?

It’s a frightening thought: your child taken away in handcuffs and charged with a felony for texting a joke to a friend.

That’s what Daniel Marquez says happened to him at the end of 5th grade.

While his family is fighting the charges in court, we dig into the Florida law used to arrest at least two dozen children in Lee County since the start of 2020.

WINK News Investigative Reporter Céline McArthur shows you why your child — even your sheriff — could be next.

Let’s start with the law: Florida Statute 836.10: Written or electronic threats to kill, do bodily injury or conduct a mass shooting or an act of terrorism

It says, “it’s unlawful for any person to send, post, or transmit, or procure the sending, posting or transmission of a writing or other record, including an electronic record in any manner in which it may be viewed by another person, when in such writing or record the person makes a threat to kill or do bodily harm to another person.”

I asked three legal experts to give their read on this law. All of them say it’s poorly written, missing key elements that safeguard your constitutional rights. They explain why that matters to you, to Daniel Marquez, to more than 50 other children arrested under this statute by the Lee County Sheriff’s Office since 2016, and to Sheriff Carmine Marceno himself.

Lyrissa Lidsky is a professor at the University of Florida’s Levin College of Law.

She’s not involved in the Marquez case, and is watching our investigation into the boy’s arrest for the first time, while we’re on Zoom. Lidsky supports the need to investigate the texts Daniel sent to his 10-year-old friend, but she’s horrified when she sees Daniel on camera in handcuffs.

“You perp walked him! You don’t perp walk a child unless they did a mass shooting,” exclaimed Lidsky.

On June 9th of this year, Sheriff Marceno told WINK News: “By Florida statute, when you commit that felony, your picture goes up, and I don’t care.”

Daniel is charged with threatening a mass shooting under a statute Lidsky says fails to define a threat, allowing for too much discretion by law enforcement.

“If I’m law enforcement, the problem is, I have every incentive to overreact because if I get it wrong in evaluating a threat, and something bad happens, I’ll be blamed,” says Lidsky. “And that’s why it’s especially important for the statute to be well written, to constrain the understandable tendency of law enforcement to overreact to something that might even remotely be perceived as a threat.” She adds, “The law is not supposed to have zero tolerance around these things. It’s supposed to be sensitive to context and try to understand, you know, who the real criminals are and who the criminals aren’t.”

Ave Maria School of Law professor and former prosecutor Mark Bonner agrees.

“Just doing an act itself can’t constitute a criminal offense, you have to do it with the intent to commit a criminal offense to do something bad with a guilty mind,” said Bonner. “So, just because, for example, you kill someone, that doesn’t mean that you committed a crime, maybe you bumped them, accidentally without being negligent, and they fall off a ladder. You see what I mean? That’s not a murder.”

Marceno told me back in June he believes Daniel’s texts — that include the Google screenshots of money and guns, and the comment “get ready for water day” — were undoubtedly a threat.

“Any person, any person would look and say, guns, get ready for water day. That is a threat,” said Marceno.

Professor Bonner says that’s speculation, not investigation. Based on the words and pictures in the texts, Bonner says Daniel theoretically could have wanted a “show and tell.”

“Here we don’t even have Daniel really making a threat to kill anybody. You have to use imagination to turn that into a threat. He could have been going down here to show it to the kids, and what a cool guy he is with this gun and this money,” said Bonner.

Letitia Kim, legal director for the Foundation Against Intolerance and Racism, FAIR, which supports the Marquez family’s legal battle, agrees and says it needs to be spelled out in the statute.

“There needs to be some, you know, some greater objectivity that is included in the statute so that somebody can’t be hauled into court and face charges based on some subjective, you know, feelings,” said Kim.

All three warn that too many people — with a smartphone or microphone — are at risk of being charged with this second-degree felony, punishable by up to 15 years behind bars.

“I’m a mother of three sons. At least two of my three sons could have easily done this, because they also have strange senses of humor. And when they were that age, they were very immature,” said Lidsky.

Bonner: “This could scoop up any 10-year-old. How about a nine-year-old?”

McArthur: “How about a sheriff?”

I asked if Sheriff Carmine Marceno could be charged under this statute based on what he said during this live press conference in May.

After announcing the arrest of a woman charged with aggravated animal abuse, he said she should be put to death.

“This oxygen stealer, this pile of trash went to the Marceno Motel, but let’s talk real. She should be euthanized,” said Marceno.

“That comment is worse than what the kid did,” said Bonner.

Bonner didn’t want to say anything else about the sheriff.

“I can say this… that this statute is so vague and broad, that it could easily encompass a lot of innocent or non-criminal conversation or statements,” said Bonner.

McArthur: “Could he (Marceno) be charged with that crime?”

Lidsky: “Well, potentially. You’re just gonna read it as in terms of the impact on the recipient. Could a recipient read that as a threat? If that’s his standard he’s using to under the Florida Statute, and the Florida statute is unclear about the level of intent required? Yes, yes.”

Kim says, “I would say this, Celine. If they are going to interpret the statute in such a way that would cover 10-year-old Daniel Marquez’s texts and cause him to be charged with the crime, then they would also have to apply it in the same way to statements by Sheriff Marceno. So, when he sends by electronic transmission, whether it’s through TikTok or otherwise, what could be perceived as threats to do bodily injury to another person, regardless of whether those are serious real threats or jokes, then they would obviously have to charge Sheriff Marceno with the same crime.”

None of them are calling for the Sheriff to be charged. They say the potential of that happening alone should serve as an eye-opener for police and prosecutors, and encourage lawmakers to rewrite that statute.

Because these cases involve children, the details of what happened, including the outcome, are confidential. That makes it challenging to see how the law is being applied and enforced.

We will reach out to the Sheriff to get his reaction and let you know what he says. We also asked Daniel’s attorney Alex Saiz if he thinks Sheriff Marceno could be charged under the same statute used to arrest Daniel. Here’s what he had to say:

“Yes, I think it could be enough,” said Saiz. “It’s basically calling for the murder of a non-convicted suspect in a crime. It sends a chill down your spine. Because at the end of the day, it sounds like he’s already playing judge and jury. Is he also executioner as well?”

If you want to weigh in on this story, email celine.mcarthur@winknews.com.

Watch the entire series on Daniel Marquez’s arrest below:

Part 1: Exclusive: 10-year-old arrested, accused of threatening mass school shooting speaks out

Part 2: Cape Coral 10-year-old accused of threatening a mass shooting officially charged

Part 3: 10-year-old accused of mass shooting threat declines plea deal, says not guilty

Part 4: Alan Dershowitz gives case analysis of SWFL 10-year-old accused of threatening mass shooting

Part 5: Law enforcement weighs in on 10-year-old accused of threatening mass shooting

Part 6: ‘She should be euthanized’; Experts weigh in on Lee sheriff’s commentary on suspects

Part 7: Family of 10-year-old charged with mass shooting threat requests DOJ investigation into LCSO

Part 8: Hear the last conversation LCSO had with Daniel Marquez, 10, before he was handcuffed

Part 9: More twists: Lawyer quits Daniel Marquez case; new text messages revealed

Part 10: New attorney for 5th grader accused of threatening mass school shooting discusses the case

Part 12: Inappropriate vs. Threat: New twist in battle over Florida law following 10-year-old’s arrest by Lee County Sheriff’s Office

Part 13: EXCLUSIVE: Lee County Sheriff’s Office deputy deposed after arresting Cape Coral 10-year-old