Whoever possesses, transports, uses or places or causes another to knowingly or unknowingly possess, transport, use or place any hoax device or hoax substance with the intent to cause anxiety, unrest, fear or personal discomfort to any person or group of persons shall be punished by imprisonment in a house of correction for not more than two and one-half years or by imprisonment in the state prison for not more than five years or by a fine of not more than $5,000, or by both such fine and imprisonment.I've bolded out the relevant text there. The problem for the face-saving Massachusetts government is that this law has a specific intent requirement. That is, it's not enough that these two guys acted in a way to cause panic, they have to have acted with the actual intent to cause panic. Clearly, they didn't intend this - they intended to advertise a movie, and there's a bunch of evidence to this effect.
There's a second problem with a prosecution under Mass. law. Is what the guys placed a hoax device? What exactly is a hoax device, anyway? Let's look now at subsection b:
For the purposes of this section, the term “hoax device” shall mean any device that would cause a person reasonably to believe that such device is an infernal machine. For the purposes of this section, the term “infernal machine” shall mean any device for endangering life or doing unusual damage to property, or both, by fire or explosion, whether or not contrived to ignite or explode automatically. For the purposes of this section, the words “hoax substance” shall mean any substance that would cause a person reasonably to believe that such substance is a harmful chemical or biological agent, a poison, a harmful radioactive substance or any other substance for causing serious bodily injury, endangering life or doing unusual damage to property, or both.I've added emphasis to the key parts. So a hoax device is something which induces the reasonable belief that the thing is an infernal machine. One, "infernal machine" sounds awesome. Two, surely it's got to factor into the analysis that thousands if not millions of people saw these things and thought them not to be bombs. How reasonable can this impression be if only one person in millions thinks that the blinking lights advertisement is an explosive device.
So what's the theory? According to this AP report:
At the arraignment, Assistant Attorney General John Grossman focused on a device that had been placed on a highway support beam, saying police believed it might have been a bomb because it contained a cylinder wrapped in duct tape, a power source and a circuit board.Which seems reasonable, except that this description of the alleged hoax device omits the, you know, atari 2600 looking dude flipping the bird all on the front. As for this theory of intent, well, um...
``It's clear the intent was to get attention by causing fear and unrest that there was a bomb in that location,'' Grossman said.
I think that the guys are not properly convicted under this law.
P.S. In Commonwealth v. Carter, 61 Mass.App.Ct. 205, 808 N.E.2d 829, Mass.App.Ct.,2004, the Appeals Court of Massachusetts held that plastique kept in one drawer while blasting caps were kept in a separate drawer did not constitute an "infernal machine" because an infernal machine must be one complete device. The more you know...