Opinion
21-P-258
03-29-2022
L.P. v. G.L.
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
The plaintiff obtained an ex parte G. L. c. 258E harassment prevention order against the defendant on November 9, 2020, from a judge of the District Court. The ex parte order provided that another hearing would be held ten days later to determine whether the ex parte order should be extended. The defendant did not appear for the next hearing because he was committed for mental health reasons; a second judge, therefore, extended the order until December 3, 2020, to maintain the status quo and to permit the defendant to be present at the extension hearing. After an evidentiary hearing on December 3, 2020, at which both parties were present, the second judge entered a one-year harassment prevention order. It is from this order (extension order) that the defendant appeals. Because we conclude, as the defendant argues, that the evidence was insufficient, we vacate the extension order. See R.S. v. A.P.B., 95 Mass. App. Ct. 372, 375 (2019), quoting Gassman v. Reason, 90 Mass. App. Ct. 1, 7 (2016) ("We review a c. 258E order to determine whether a fact finder could conclude ‘by a preponderance of the evidence, together with all permissible inferences, that the defendant had committed [three] or more acts of willful and malicious conduct aimed at a specific person committed with the intent to cause fear, intimidation, abuse or damage to property and that [did] in fact cause fear, intimidation, abuse or damage to property.’ ")
The defendant did not initially include in the appellate record a copy of the transcript of the November 19, 2020 hearing. He corrected this shortcoming by filing a copy of the transcript after oral argument.
The defendant did not file a timely notice of appeal, see Mass. R. A. P. 4 (a), as appearing in 481 Mass. 1606 (2019). However, he obtained relief from a single justice of this court, who entered an order that in essence deemed his notice of appeal to have been timely.
"In order to obtain a c. 258E order, a plaintiff must demonstrate that she is suffering from harassment. ‘Harassment,’ insofar as relevant here, is defined as ‘[three] or more acts of willful and malicious conduct aimed at a specific person committed with the intent to cause fear, intimidation, abuse or damage to property and that does in fact cause fear, intimidation, abuse or damage to property.’ " DeMayo v. Quinn, 87 Mass. App. Ct. 115, 116 (2015), quoting G. L. c. 258E, § 1. There are "two layers of intent required to prove civil harassment under c. 258E: the acts of harassment must be wil[l]ful and ‘[m]alicious,’ the latter defined as ‘characterized by cruelty, hostility or revenge,’ and they must be committed with ‘the intent to cause fear, intimidation, abuse or damage to property.’ " O'Brien v. Borowski, 461 Mass. 415, 420 (2012), quoting G. L. c. 258E, § 1. The Supreme Judicial Court has held that the definition of civil harassment excludes constitutionally protected speech, so that only "true threats" and "fighting words," which fall outside the protection of the First Amendment to the United States Constitution and art. 16 of the Declaration of Rights of the Massachusetts Constitution, fall within the ambit of G. L. c. 258E, § 1. See O'Brien, supra at 425-428. "There is no appreciable amount of protected speech where the speaker both intends to cause intimidation, abuse, damage to property, or fear of physical harm or property damage, and does in fact cause one of these alternatives." Id. at 428.
We do not here deal with fighting words, but only with whether the defendant's communications constituted "true threats." "To qualify as a true threat, a threat must demonstrate ‘a serious expression of an intent to commit an act of unlawful violence to a particular individual or group of individuals.’ " A.R. v. L.C., 93 Mass. App. Ct. 758, 760 (2018), quoting Virginia v. Black, 538 U.S. 343, 359 (2003). Furthermore, "to support an order under c. 258E, the true threats cannot be threats to do just any kind of harm; they must be intended to cause ‘fear of physical harm’ or ... ‘physical damage to property.’ " Id., quoting O'Brien, 461 Mass. at 427.
"Fighting words" are "a direct personal insult addressed to a person" and "so personally abusive that they are plainly likely to provoke a violent reaction and cause a breach of the peace." Seney v. Morhy, 467 Mass. 58, 63 (2014), quoting O'Brien, 461 Mass. at 423.
The testimony at the extension hearing, together with the contents of the plaintiff's affidavit, permitted the judge to find the following. Five years earlier, the plaintiff and the defendant, who had a history of severe mental illness, and had previously been in an inpatient facility, had been roommates for about one month while they were both in graduate school. After years of not having had contact with the defendant, the plaintiff began to receive text messages from him which she initially would respond to. She stopped responding after she received a message from the defendant on July 5, 2020, saying "I love you, I think." After that point, the defendant sent over forty messages. On October 31, 2020, after the defendant contacted the plaintiff on Facebook and also sent her an email, the plaintiff sent a message asking that the defendant not contact her. On November 2, 2020, the plaintiff had another former roommate, who was a lawyer, send the defendant a message telling him to stop contacting the plaintiff because it was harassment. The defendant nonetheless thereafter sent the plaintiff two more emails and two more text messages. The substance of the defendant's messages usually consisted of "a picture of some kind of strange writing, potentially, a thesis he's working on or something, including one time a picture that included his bare thigh along with the image of the thesis and some kind of request [for] [the plaintiff's] response to the thesis that he's writing." On November 6 and 8, 2020, the defendant went to the plaintiff's workplace (a public school) and tried to gain entry; when he was denied entry, he stood on the sidewalk across from the school, and police had to be called to get him to leave.
We do not consider testimony from the ex parte hearing because it was conducted by a different judge. There was no evidence presented at the hearing at which the defendant was unable to appear.
The text messages were not introduced or admitted during the hearing.
Although coming twice to the plaintiff's workplace and trying to gain entry undoubtedly is "willful and malicious conduct aimed at a specific person," that could have intimidated the plaintiff or put her in fear, G. L. c. 258E, § 1, the judge did not make any findings as to whether the defendant engaged in that conduct "with the intent to cause fear, intimidation, abuse or damage to property." G. L. c. 258E, § 1. Even assuming for the sake of argument that the evidence the defendant had tried to gain entry to the plaintiff's workplace would have supported such a finding, the evidence concerning the defendant's verbal communications would not have. As it was described by the plaintiff, the substance of the messages was insufficient to establish that they were sent with malice and an intent to cause fear. See Smith v. Mastalerz, 467 Mass. 1001, 1001-1002 (2014) ; R.S. v. A.P.B., 95 Mass. App. Ct. at 376 ; A.R. v. L.C., 93 Mass. App. Ct. 758, 766-767 (2018) ; Gassman, 90 Mass. App. Ct. at 9.
We therefore remand the case to the District Court for entry of an order vacating and setting aside the order of December 3, 2020, and for further actions required by G. L. c. 258E, § 9.
So ordered.
Vacated and remanded