CAPE CORAL, Fla. — A shooting threat against Diplomat Elementary on April 13 led to the arrest of two men in Cape Coral, but only one is charged with the threat. The Cape Coral Police Chief calls the situation "a gap in the law."
The video posted on Snapchat and later spread on other social media platforms has sparked a lot of attention. Some people questions the laws in the case, including the chief.
Fox 4 Senior Reporter Kaitlin Knapp explains why only one man was charged with a felony, while the one who made the threat is charged with a lesser charge:
Cape Coral Police say Mario Garth posted the threat. He was charged with intimidation — written or electronic threat of a mass shooting, which is a second-degree felony.
"This is unusual, very unusual," said Dr. Dave Thomas, a forensic studies professor at FGCU. "I've never heard of anything like this."
He says the person that transmits the threat is the one charged with the crime.
"I will be going to Diplomat Elementary School on April 17, 2025 with my AR-15 rifle," a man said in the video. "I will be going into the 4th and 5th grade classrooms, gymnasium."
That man is Karim Hussain, and police charged him with interfering with a minor's attendance of school. Police say he was charged with the misdemeanor because some parents chose to not send their kids to school due to the threat.
"If he [Garth} would’ve never transmitted that, never posted it, it never would’ve been an issue," Thomas explained.
And because Hussain didn't post the threat, he legally cannot be charged with it.
"The law is very specific," Thomas said.
When people found out about the threat, there was a lot of backlash online about the lack of charges against Hussain.
Cape Coral Police Chief Anthony Sizemore addressed the attention the case is getting.
He said in a statement in part, "...although he [Hussain] made the abhorrent and offensive statements, did not transmit them himself. As such, under current law, he could not be charged under that statute."
Sizemore went on to say he has contacted Rep. Mike Giollombardo about the gap in the law.
"As these things evolve, what you will find is that the Legislature, once it's brought to their attention, they'll try to fix this gap," Thomas said.
Knapp asked at what point do we determine this is not free speech.
"It’s free speech, to me as long as it’s not transmitted," Thomas replied. "Once it's transmitted, it's no longer free speech. That's the limit."
With recent shootings, gun laws are a hot topic.
Police did file a temporary risk protection order against Hussain, which was granted by a judge. This means a judge determined Hussain was a threat to himself or others and police could take his seven guns away. Court records show he legally owns them and has no criminal record.
A risk protection order is also known as a red flag law.
The law, enacted in 2018 and signed into law by Gov. Rick Scott, came after the 17 lives lost in the mass shooting in Parkland, and 49 people were gunned down at the Pulse nightclub in Orlando.
The sweeping legislation raised the minimum legal age for buying guns in Florida to 21, and added the purchase of long guns to the state's three-day waiting period. Among other things, it also gives law enforcement the ability to get a court order to confiscate weapons from someone who was deemed a threat and prevent them from buying more.
DeSantis wants to repeal the law. Back in March, he claims it’s unconstitutional and if that bill had come across his desk as governor, he would have vetoed it.
As for this case, Thomas says police did everything they could do at the time they did it.
Hussain will have a final protection order hearing on April 28 to determine if he can get his guns back, but Thomas said they can be held for months or even a year.
"I think what you’ll find is that there’s going to be a degree of certain conservatism that sticks with the judge because he or she doesn’t want to be responsible," Thomas said when asked about the final order and potential for violence. "It’s going to be incumbent on the judge to sit there and kinda listen to this and determine if the potential is there."
