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Aztec shooter’s internet rants not a crime

Copyright © 2017 Albuquerque Journal

William Atchison, 21, posted a lot of words on the internet in the years before he killed two Aztec High School students and committed suicide earlier this month.

Some of those words were racist rants, some were cruel and some were a sad commentary on what he apparently viewed as his own miserable life. Many of his words were offensive. And frightening. None of them constituted a crime.

FBI Special Agent Terry Wade, second from right, addresses the media at a news conference the day after the Dec. 7 shooting at Aztec High School, which left two students dead. The shooter, William Atchison, 21, committed suicide. (Adolphe Pierre-Louis/Albuquerque Journal)

Atchison posted under dozens of names to comment on school shootings, the state of the “white race” and to criticize minorities, gays and LGBT people.

Atchison, in talking about his interest in mass shootings, also asked if anyone knew where he could buy a cheap semi-automatic rifle.

It was that posting on an online gaming site that prompted FBI agents to open an “assessment,” which included finding out who actually posted the material.

Once they determined it was Atchison, agents began digging into Atchison’s background, and they interviewed him 18 months before he shot and killed 17-year-old Casey Marquez and Francisco “Paco” Fernandez, 17, two random victims, at Aztec High School.

William Atchison posted this 17 months after he was interviewed by the FBI.

After looking into Atchison and his internet activities in March 2016, the FBI concluded that the postings didn’t rise to the level of a crime – or even to the level of justifying a deeper investigation – and closed their file on him.

“It was very generic, not a specific threat, but disturbing enough that we wanted to find out who put it out there,” Terry Wade, special agent in charge of the Albuquerque FBI office, said during a press conference after the shooting.

Atchison told agents that he was “trolling” – an internet term that means posting comments to annoy others. While agents found the comments disturbing, Atchison hadn’t made any threats under the law.

Bianca Martinez, center, an Aztec High senior, grieves with friends during a candlelight vigil at Minium Park in Aztec. Aztec High School was the scene of a school shooting Dec. 7 that killed two students. (Marla Brose/Albuquerque Journal)

There was no evidence that he owned a firearm, and agents found nothing in his background – no criminal history and no membership in domestic organizations advocating violence – to justify moving forward to a preliminary investigation.

If they open a preliminary investigation, agents can conduct surveillance and interview other people. If that turns up evidence of a crime, they can move to a full investigation that would allow them to employ investigative tools, such as seeking search warrants.

Francisco Fernandez

In Atchison’s case, they never got past the first step and closed the file, primarily because they found no specific threat.

According to federal law enforcement and prosecution manuals, in order for internet comments to constitute a crime, a person has to send a message containing a “threat to injure the person of another” and “intend for the threat to be perceived as a threat.” The person doesn’t have to take any action to carry through on the threat for it to be a crime – which is punishable by up to five years in federal prison and a $250,000 fine.

Casey Marquez

If Atchison’s comments had been a specific threat with a specific target, the FBI would have moved from an assessment to a full investigation.

Even with a preliminary investigation, the agency could have put Atchison on a watch list, so agents would have been notified if he were getting on an airplane or buying a gun.

Wade said agents told the Aztec Police Department about their investigation into Atchison at the time.

A torn note left by William Atchison was discovered after the shooting at Aztec High School that killed Casey Marquez, 17, and Francisco “Paco” Fernandez, 17. (Source: San Juan County Sheriff’s Office)

“The assessment was subsequently closed after it was determined that no crime had been committed, and there was no lawful justification to undertake further investigative steps,” Wade said. “As frustrating as this is, it’s important to note that absent suspicion of a crime or necessary legal requirements, the FBI cannot initiate or maintain an investigation.”

Police said Atchison legally purchased the Glock 9 mm handgun used in the Aztec High School murders a month before the shootings – almost 17 months after the FBI interview.

Born into a ‘dystopia’

Atchison was working at a gas station and living with his parents in a quiet middle class neighborhood in Aztec.

San Juan County Sheriff Ken Christesen said Atchison didn’t have any run-ins with police, didn’t even have a parking ticket but was known to annoy people with his political opinions.

“He would try to get a rise out of people,” Christesen said.

In an internet post reviewed by the Journal – that has since been reposted on some sites Atchison was known to frequent – Atchison, posting under the name of the website’s founder, said, “I used to think that this was a phase and we’d get over it, but I have now come to realize that I was born into a literal dystopia.”

In the same post, he criticized “LGBGT liberals” and African Americans.

“Wherever I go I see degeneracy. Pointless materialism, hedonism, sexual decay, dirty (n-word), who do nothing but slowly break down this society etc. it’s f***ing everywhere. No way to escape it … Go to the store and buy groceries in peace? Nope, here’s a group of LGBT liberal filth in line with you …”

Aztec is predominately white in conservative northwest New Mexico.

Nathan McClain pauses for a moment after placing flowers on a makeshift memorial Monday at Aztec High School. (The Farmington Daily Times)

According to the Daily Beast, an online website that tracked Atchison’s internet activity, Atchison was very active online, posting at White Supremacist websites, getting banned at other websites for trolling and complaining about the state of his life.

The Daily Beast attributed an online post to Atchison, stating that he had been interviewed by the FBI for making “edgy” comments.

Atchison was also apparently obsessed with mass school shootings and according to Daily Beast had posted online under the name Adam Lanza, the Newtown, Conn., school shooter.

But he was banned from some controversial sites for his comments, which would have been consistent with his self-description as an Internet “troll” in various venues.

When officers found Atchison’s body after the Aztec High School shootings, he had a thumb drive on him with a note outlining his plan for the day.

“If things go according to plan, today would be when I die,” the note said.

“I go somewhere and gear up, then hold a class hostage and go apeshit, then blow my brains out.”

He wrote “work sucks, school sucks, life sucks. I just want out of this shit.”

FBI needs crime threat

Atchison wasn’t the only mass shooter to have been on the FBI radar. Perhaps the best know was radicalized Muslim Omar Mateen, who killed 49 people at a nightclub in Florida favored by gay and LGBT patrons, proclaiming his allegiance to ISIS.

But in any case, the FBI needs specific information of a threat or crime to act. When they have it, they can move quickly.

Last September, Michael Anthony Estrada, 24, posted to the Las Cruces Community Watch Facebook page a note saying “This is a threat treat me better or I’m gonna shoot up conlee elementary tired of no help.”

Conlee Elementary school and others went into a lockdown when they became aware of the online threat.

With the help of the public, Las Cruces police located Estrada at a local restaurant where he had posted his message.

Estrada told police “I was gonna do it. We could have lost all those kids today if I were someone else.”

He was arrested on federal charges and last week pleaded guilty to making interstate communications threatening the school students.

Federal court rulings around the country say the person making the threat doesn’t need to have the means to carry it out as long as the threat is specific and meant to threaten.

In October, Sean Stinson pleaded guilty in federal court to making telephone threats to shoot and kill individual members of the Las Cruces Police Department. He was sentenced to 406 days in federal prison.

In 2015, Zachary Milton Hess, 20, of Las Cruces, was sentenced to five years probation and $77,934 in restitution to New Mexico State University for making the threat, while chatting on an internet website, that he was going “to shoot up” the campus in three days.

In each case, there was a specific threat, federal law enforcement officials point out, that was not present in Atchison’s online posts.

A frustrating case

Finding a specific threat isn’t always easy.

There have been national cases in which people like Mateen or Atchison came under FBI scrutiny, had the cases closed, then went on to commit horrific crimes.

The FBI can never open an investigation simply on the basis of religion, creed, race, or nation of origin.

In 2013 and 2014, the FBI spent 10 months investigating Mateen, who worked as a contract security guard at the St. Lucie County courthouse.

Fellow employees warned the local sheriff’s department that Mateen claimed connections of terrorist organizations Al Qaeda and Hezbollah and wanted to die as a martyr.

The FBI started a preliminary investigation because the tip came from a local law enforcement agency, and because Mateen had access to firearms and worked in a public building.

Mateen, a U.S. citizen, was put on a terrorist watch list that made sure he received special screening at airports and that the FBI agent conducting the investigation would be notified if he purchased a weapon.

Over the course of the 10-month preliminary investigation, agents surveilled Mateen during his daily activities and had confidential informants record conversations with him.

Those techniques failed to turn up anything to indicate Mateen was actively involved with any terrorist group.

They interviewed him twice. He admitted making the claims to his fellow employees of having ties to the two terrorist groups but said it was because they were constantly teasing him about his religion – something those employees later admitted when interviewed by the FBI.

A preliminary investigation can last six months and in Mateen’s case agents asked for a six month extension.

But in the end they couldn’t establish any evidence that Mateen had committed a crime. That conclusion left them unable to get subpoenas or serve search warrants, which require probable cause that a crime or evidence of a crime exist.

When the case was closed in 2014, Mateen was taken off the watch list.

After the nightclub shooting, the FBI began an in-house review of how the investigation was conducted.

They concluded that the agents could have pushed harder in reviewing Mateen’s involvement on the internet and social media. But after the shooting, they found Mateen’s internet activity showed nothing that would have moved the original investigation forward.

But they did find Mateen was watching videos of radical Islamic teachers, but to find that information agents would have needed a search warrant for Mateen’s personal computer. Agents didn’t have the probable cause to search his computer during the preliminary investigation.

Then-FBI Director James Comey told the Washington Post that there wasn’t much agents could have done differently.