Q: Is it legal to arrest a person with brain injury for a recorded threat under medication-induced psychosis?
I have a query about a situation where a person with a traumatic brain injury, diagnosed with chronic traumatic encephalopathy (CTE), left a recorded voice message that was interpreted as a threat. They went to bed afterward and were arrested the next day. This person has had previous interactions with law enforcement and recently experienced a change in prescribed medication. Historically, there are no issues when not medicated, but the medication leads to brain effects and frequent arrests due to medication-induced psychosis, as assessed by their own doctor. Is it legal for law enforcement to make an arrest based on the message, considering the person's medical condition and the medication's impact?
A: It is unfortunate that person was arrested, but the standard for arrest is simply probable cause that a crime occurred. The Fourth Amendment mandates that an arrest be justified by probable cause to believe that a person has committed or is committing a crime. A person commits the crime of terroristic threats in Nebraska if he or she threatens to commit any crime of violence with the intent to terrorize another or in reckless disregard of the risk of causing such terror. Neb. Rev. Stat. § 28-311.01. In order to convict a person who is arrested for the crime of terroristic threats, the state must prove beyond a reasonable doubt that the defendant intended to terrorize another person. State v. Smith, 267 Neb. 917 (2004). It does not matter that the person who made the threat did not intend to execute the threat nor does it matter that the recipient of the threat be terrorized. State v. Saltzman, 235 Neb. 964 (1990). Finally, for the purposes of the Nebraska terroristic threats statute, a threat may be written, oral, physical or any combination thereof. State v. Tucker, 17 Neb. App. 487 (2009).
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