Opinion
20-P-422
05-10-2021
B.P. v. L.S.
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
Following an evidentiary hearing, a District Court judge denied the plaintiff's application for a harassment prevention order under G. L. c. 258E. The plaintiff appeals, contending that there was sufficient evidence to establish three or more acts of "harassment" as defined by G. L. c. 258E, § 1, and that the judge erred in failing to admit certain hearsay evidence. We affirm.
"In reviewing a civil harassment prevention order, we consider whether the judge could find, 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.’ " Petriello v. Indresano, 87 Mass. App. Ct. 438, 444 (2015), quoting G. L. c. 258E, § 1. Where the alleged harassment implicates speech, however, the definition of harassment is further confined, such that only "fighting words" or "true threats" may qualify as acts of harassment. See Van Liew v. Stansfield, 474 Mass. 31, 37-38 (2016) ; Seney v. Morhy, 467 Mass. 58, 63 (2014) ; O'Brien v. Borowksi, 461 Mass. 415, 423-425 (2012). "[T]he ‘true threat’ doctrine applies not only to direct threats of imminent physical harm, but to words or actions that -- taking into account the context in which they arise -- cause the victim to fear such harm now or in the future and evince intent on the part of the speaker or actor to cause such fear." O'Brien, supra at 425.
The plaintiff does not contend, and we would not find, that any of the defendant's speech constituted fighting words. See O'Brien, 461 Mass. at 423 (fighting words are "words that are likely to provoke a fight: face-to-face personal insults that are so personally abusive that they are plainly likely to provoke a violent reaction and cause a breach of the peace").
There was plainly sufficient evidence to support a finding that the first act committed by the defendant constituted harassment. The defendant approached the plaintiff while she was attending a panel discussion at the university where she taught and where the defendant was a student, and allegedly told her, "I know who you are. I'm going to make you famous. I'm going to get you." At the time, the defendant was wearing a large vest and appeared to have something concealed beneath it. It is evident that the plaintiff was afraid, see J.C. v. J.H., 92 Mass. App. Ct. 224, 228 (2017), and the content of the defendant's speech and the context in which it was delivered make clear that the defendant intended to cause the plaintiff fear. See G. L. c. 258E, § 1.
The remaining acts the plaintiff alleges the defendant committed directly against her, however, do not constitute harassment within the meaning of the statute. Though the defendant posted a video online where he stated that he would respond to action by the plaintiff with "fire and fury the likes of which the world has never seen," considered in context the comment described threats of legal action against the plaintiff and cannot, therefore, be said to constitute a true threat. See A.R. v. L.C., 93 Mass. App. Ct. 758, 761 (2018) ("[O]ur appellate courts have repeatedly held in appeals from issuance of orders under c. 258E that conduct that might be considered harassing, intimidating, or abusive in the colloquial sense, and that thus might support issuance of an order under the plain language of the statute, was not adequate to meet the standard spelled out in O'Brien"). Likewise, the defendant's online post implicitly suggesting that he would defend himself from any "terrorists in Amherst" that came to where he was living, though inappropriate, was not a true threat as it was conditional in nature and did not convey any "direct threats of imminent physical harm." O'Brien, 461 Mass. at 425. See Watts v. United States, 394 U.S. 705, 708 (1969) (threatening to shoot president not true threat considering "context, and regarding the expressly conditional nature of the statement"). Similarly, the defendant's e-mail requests to the plaintiff for access to old course materials were not a true threat as the messages did not evidence any intent to cause fear, intimidation, abuse, or property damage. ,
Because we do not find that any of the other acts the plaintiff alleges that the defendant committed directly against her constitute harassment under G. L. c. 258E, § 1, we need not decide whether the final act alleged by the plaintiff -- where the defendant contacted third parties regarding the plaintiff and provided those parties with the plaintiff's photograph and work address -- constituted harassment under the statute; even if that indirect act constituted harassment, the plaintiff still would not have established "[three] or more acts of willful and malicious conduct." G. L. c. 258E, § 1.
To the extent the plaintiff suggests that forms of speech other than true threats or fighting words may constitute harassment under G. L. c. 258E, § 1, the plaintiff's argument is misplaced. Our case law makes clear that where speech is concerned, only fighting words or true threats may qualify as acts of harassment. See O'Brien, 461 Mass. at 423-425.
For purposes of our consideration of this act, we assume, favorably to the plaintiff, that the defendant communicated his request directly to her, and not through the school's administrative office.
Finally, there is no merit to the plaintiff's contention that the judge erred in failing to admit certain hearsay evidence. Though in proceedings pursuant to G. L. c. 258E "the rules of evidence need not be followed," Frizado v. Frizado, 420 Mass. 592, 597 (1995), evidentiary rulings are committed to the sound discretion of the judge and we cannot say she abused that discretion in declining to admit hearsay evidence where the evidence had little indicia of reliability. See F.A.P. v. J.E.S., 87 Mass. App. Ct. 595, 602 (2015).
In the exercise of our discretion, we decline to award attorney's fees and costs to the defendant. See Fronk v. Fowler, 456 Mass. 317, 326-327 (2010).
Order denying application for harassment prevention order affirmed.