A US conspiracy theorist linked to the Wieambilla shooters has argued he was not seriously expressing an intent for violence when he said “the devils come for us, they fucking die”, and as such should be protected by the US constitution’s first amendment.
Donald Day Jr, a conspiracy theorist in Arizona, was recently arrested by FBI agents in connection with last year’s religiously motivated terrorist attack on a remote Queensland property in Wieambilla.
Day was in contact with Gareth and Stacey Train in the lead-up to the shootings, which killed two police officers and a neighbour, before the pair were shot dead, alongside Gareth’s brother Nathaniel, by police.
Court documents show Day is alleged to have posted a video on YouTube four days after the killings, saying:
“The devils come for us, they fucking die. It’s just that simple. We are free people, we are owned by no one.”
The comments were allegedly in response to a video posted by Gareth and Stacey during the standoff with police, in which they addressed Day directly, saying: “They came to kill us, and we killed them. If you don’t defend yourself against these devils and demons, you’re a coward.”
Two indictments were issued against Day by a grand jury in Tucson, Arizona recently for interstate threats. Investigators allege Day’s video constituted “a threat to injure the person of another, that is any law enforcement individual who comes to Day’s residence”.
He is also separately accused of making threats toward Tedros Adhanom Ghebreyesus, the director-general of the World Health Organization.
In a motion filed on Boxing Day, seen by Guardian Australia, Day’s lawyers sought to have the charges against him dismissed.
They argued that the statements Day allegedly made were not threats against a “person” as required under the statute. Their motion argues the group of persons allegedly threatened by the statement is too vague and ill-defined to constitute a “person”.
“It presumably includes not merely some unspecified number of federal, state, local, and even international law enforcement officials but would also include people who aren’t even police officers now but who may at some point in the future decide to become police officers such that they might someday have reason to go to Mr. Day’s house,” Day’s lawyers argued.
They also argued the indictment fails to allege a “true threat” to commit violence and Day is “therefore protected by the First Amendment to the United States Constitution”, which covers the right to free speech.
“Even accepting as true the indictment’s assertion that ‘devils’ is code for ‘police officers’ specifically, as opposed to ‘unlawful government actors’ in general, Mr. Day’s assertion that if ‘devils come [to kill] us,’ he would respond in kind cannot fairly be read as ‘a serious expression of an intent to commit an act of unlawful violence’.”
The motion is yet to be considered by the Arizona district court, where the case is being heard.
Queensland police told the media earlier this month that Gareth Train began following Day on YouTube around May 2020.
The Queensland police assistant commissioner, Cheryl Scanlon, said they began commenting on each other’s videos in 2021.
“We know that the offenders [Gareth and Stacey Train] executed a religiously motivated terrorist attack in Queensland,” she said. “They were motivated by Christian extremist ideology and subscribe to the Christian fundamentalist belief system known as premillennialism.
“The motivation of the United States national is still under investigation by the FBI.”
