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A bus filled with inmates arrives at the new Essex County Correctional Facility in Newark, N.J., Saturday, March 27, 2004. Inset: Monica Ciardi booking photo Essex County Correctional Facility.
A mother in New Jersey thrown in jail for allegedly making terroristic threats against court officials on Facebook during a contentious custody dispute has been released after 35 days in detention thanks to a nascent ruling by the state’s supreme court that raised prosecutorial standards — and questions about the scope of the First Amendment — when it comes to threat-making.
First reported by the New Jersey Monitor on Monday, Morris County resident Monica Ciardi was upset in December and opted to express her outrage online, so she logged onto Facebook to rant on her own social media page about injustices she felt had plagued a custody battle with her ex-husband.
In some of the posts, she reportedly complained about judges, jurists and prosecutors, sometimes calling them “liars” and in the posting that sparked formal charges against her, she wrote: “Judge Bogaard and Judge DeMarzo: If you don’t do what I want then you don’t get to see your kids. Hmm.”
Prosecutors believed this was Ciardi making a threat to the judges specifically. Ciardi’s public defender Mackenzie Shearer says this is a misunderstanding all due to a matter of missing punctuation.
“She doesn’t even know if these judges have kids. She’s saying what they told her. She got arrested because she forgot quotation marks,” Shearer told the Monitor.
The public defender did not immediately respond to a request for comment Monday and the prosecutor’s office declined to comment to Law&Crime.
Ciardi has taken the stance that she was well within her rights to post that message and others like it to her own social media account. She said so about a week before she was arrested, the Monitor reported, when sharing a post on Facebook that contained a link to a 2019 ruling by the 4th U.S. Circuit Court of Appeals that a Virginia politician had violated the Constitution by blocking a critic from her Facebook page.
“ZERO RETALIATION IS PERMITTED AGAINST ME FOR EXERCISING MY RIGHTS. Take notice,” Ciardi wrote. [Emphasis original]
Within a week of Ciardi’s “zero retaliation” post and linking to the appeals court case, she was arrested, charged and ordered by Superior Court Judge Mark Ali to be detained.
While in custody, Ciardi alleges she was exposed to harsh conditions inside the Essex County Correctional Facility, forcing her to lose 15 pounds, receive death threats and witness graphic assaults inside the jail. She also claims she was caught up in a hail of pepper spray as guards had to deal with unruly detainees.
She was held in a cell under protective custody, according to The Monitor, though she was not allowed out for more than 45 minutes and only a few times each week.
After 35 days of detention, Ali ordered Ciardi’s release on Friday, citing a recent New Jersey Supreme Court ruling that changed the language for the terroristic threat charge on an unrelated case of a fellow New Jersey resident, Calvin Fair of Freehold.
A court decree reviewed by Law&Crime shows Fair had exchanged sharp words with police officers when they responded to a domestic violence call at his home in May 2015.
He told them “Worry about a headshot [epithet]!” during the interaction, though he never brandished a weapon.
Though he hadn’t waved a gun at anyone during the May 2015 incident, a few months before, officers had seized several handguns from his home. Fair, court records show, had referenced this seizure on Facebook and appeared to brag that the guns cops took didn’t belong to him and he still had his own. All of those elements and concerns over what he may do led to the charges.
But in a unanimous decision from the New Jersey Supreme Court, Justice Rachel Wainer Apter found there needed to be a greater context in place to prove a person actually intends to make a genuine threat.
“Under this standard, to be found guilty … a defendant must have consciously disregarded a substantial and unjustifiable risk that their threat to commit a crime of violence would terrorize another person, and that conscious disregard must be a gross deviation from the standard of conduct that a reasonable person in a defendant’s situation would observe,” Apter wrote.
Further, a true threat demands a “mens rea of recklessness” to be proven by establishing that the “speaker is aware that others could regard his statements as threatening violence and delivers them anyway.”
“Although it is not purposeful or knowing, ‘recklessness is morally culpable conduct, involving a ‘deliberate decision to endanger another.’ This understanding of recklessness requires more than the standard of recklessness conveyed in the judge’s instructions to the jury in [the Calvin Fair] case, which provided in part that, “[o]ne is said to act recklessly if one acts . . . heedlessly, or foolhardily,”” Apter wrote.
She continued: “With this understanding of recklessness as “morally culpable conduct” in the context of true threats, the Court agrees that it is constitutionally sufficient for a prosecution of a threat of violence.”
But the judge also made an important distinction given the increasing retaliatory political climate of late in the U.S.
The court’s ruling did not address nor decide whether a “different intent requirement should apply to prosecutions for dissenting political speech, because no such speech was prosecuted here.”
Public arrest records reviewed by Law&Crime on Monday show Ciardi was released from jail on Jan. 27.
It is unclear if Ciardi intends to levy a lawsuit of her own against the state; for now, she is still reportedly seeking to regain custody over two of her four children.
