Haughwout v. Tordenti
Haughwout v. Tordenti
Opinion
**561
In this appeal, we consider the limits of free speech on a public university campus in light of recent history that has led federal and state courts to describe threats of gun violence and mass shootings as the twenty-first century equivalent to the shout of fire in a crowded theater once envisioned by Justice Oliver Wendell Holmes, Jr.
1
See, e.g.,
Ponce
v.
Socorro Independent School District
,
The record reveals the following facts, as found by the trial court, 4 and procedural history. "On September 17, 2015, a student at [the university] (complainant) went to the headquarters of the campus police to report a 'suspicious incident' at the student center. [The complainant] provided a written statement in which he said that [the *4 plaintiff] 'made verbal cues discussing the physical harm of another [university] student,' identified the other student as 'first on his hit list,' showed digital [photographs] of a bullet on his cell phone, and **563 'remarked that he had loose bullets at home and in his truck.' The complainant said he did not know [the plaintiff], but the statements were made in his presence. The complainant further reported that [the plaintiff] had never shown any weapons on his person, and that he has 'a habit of making hand gestures in the shape of handguns as a common gesture.'
"On September 21, 2015, the campus police interviewed another [university] student who had known [the plaintiff] since the spring semester [of] 2015 and hung around with him in a group that met at the student center. That student recounted statements by [the plaintiff] that 'someone should shoot up this school' or 'I should just shoot up this school.' [The plaintiff] was 'always' talking about guns and ammunition and 'greets everyone by pointing at them with his hand in the shape of a gun.' This student reported that [the plaintiff] had said to him that he was [the plaintiff's] 'number one target,' 'number one on my list.' [The plaintiff] 'brags constantly about his guns and ammunition, shows off pictures and boasts about wanting to bring a gun to school.' This student described these statements by [the plaintiff] as made 'jokingly' and that the group in which they hung around dismissed what he said as a joke.
"On the same day, the campus police reinterviewed the complainant, who repeated his allegations of September 17. Although [the complainant], too, described [the plaintiff's] statements as having been made 'jokingly,' he was 'alarmed' by them, had started avoiding [the plaintiff], left the student center when [the plaintiff] arrive[d] and was 'afraid for everyone's safety.'
"On September 22, the campus police interviewed a third student who related that he had heard [the plaintiff] during the preceding week state 'something like "might as well shoot up the place." ' While this student described [the plaintiff's] statement as having been made 'nonchalantly,' he was 'concerned about the context **564 of [the plaintiff's] exclamation' because [the plaintiff] had been 'upset about something' when he made it.
"The campus police interviewed [the plaintiff] on September 22, 2015, as well. While he acknowledged talking about guns a lot, he denied ever saying anything about shooting up the school, stating that 'he knows better than to mention anything like that.' He attributed the complaints against him to his position on gun rights.
"After interviewing [the plaintiff], the campus police called two of the persons they had previously interviewed and inquired why they had not contacted police upon hearing [the plaintiff's] alleged remarks about 'shooting up the school.' One said he had been told by others who heard the remark to 'take it as a joke and ignore [the plaintiff]'; the other stated that [he] 'didn't take it seriously but ... was kind of concerned.'
"[Samuda], a detective with the campus police, participated in this investigation. At its conclusion, on September 22, he applied for an arrest warrant charging [the plaintiff] with the crime of threatening in the second degree, in violation of General Statutes § 53a-62. The state's attorney declined the application, informing ... Samuda that probable cause for that crime was lacking. 5 [Samuda] reported the results *5 of his investigation to [Dukes, the university's director of student conduct, and] provided him with copies of the police reports. On October 1, 2015, [the plaintiff] was placed on an interim suspension by Hernández, [the university's associate dean for student affairs, because of] 'alleged behavior within our community.' " (Footnotes added and omitted.)
Following an investigation by Dukes, the university commenced disciplinary proceedings against the plaintiff **565 on the ground that his actions had violated four separate provisions of the university's student code of conduct prohibiting the following: physical assault, intimidation, or threatening behavior; harassment; disorderly conduct; and offensive or disorderly conduct. A hearing was held before a panel consisting of two administrators and a professor, at which the plaintiff largely denied making the statements and gestures attributed to him. See footnote 18 of this opinion. The hearing panel found, however, that the plaintiff was responsible on all charges, and decided to expel him from the university's campus. The hearing panel's decision to expel the plaintiff from the university 6 was subsequently upheld after an internal appeal. 7
The plaintiff subsequently brought this action seeking a declaratory judgment, injunctive relief, and damages. The plaintiff also sought a writ of mandamus reinstating him as a student at the university, expungement of misconduct allegations from his record, and a refund of tuition and fees that had been withheld by the defendants. The plaintiff claimed that his expulsion constituted a breach of contract, contravened an implied covenant of duty of good faith and fair dealing, and violated his state and federal constitutional rights to due process of law and to freedom of speech.
After a hearing, 8 the trial court issued a memorandum of decision in which it rejected the plaintiff's contractual **566 and due process claims, 9 and further concluded that the defendants did not violate the plaintiff's free speech rights under the federal and state constitutions. The trial court concluded that the plaintiff's "statements and gestures while in the student center at [the university] fit the definition of 'true threats,' " and "were certainly not statements that sought 'to communicate a belief or idea.' " 10 Because the plaintiff had "denied *6 almost all of these statements," and, therefore, "the record contains no direct evidence from him as to his intentions in making them"; see footnote 17 of this opinion; the trial court relied on their content and "his repeated utterances of them in a public place like the student center," and found that the plaintiff "meant to 'communicate a serious expression of an intent to commit an act of unlawful violence to a particular individual or group of individuals' ... namely, the students at [the university]. Whether he actually intended to carry through on the threat is unknown and immaterial." (Citation omitted.) Given the "spate" of mass shootings at schools and universities around the country, the trial court determined that "a reasonable person ... would have seen that such repeated statements would be interpreted by the students to whom and in whose presence he made them as 'serious expressions of intent to harm or assault.' ... And, although some of the students treated [the plaintiff's] statements as a joke, at least some of them who heard these threats were 'alarmed' and 'concerned' about them and in some cases changed their behavior; e.g., coming less often **567 to the student center because of [the plaintiff's] statements." (Citation omitted; footnote omitted.) Accordingly, the trial court rendered judgment for the defendants. This appeal followed. 11
On appeal, the plaintiff, emphasizing that the first amendment "doesn't protect just the good jokes," claims that the statements, gestures, and images that he made were not true threats and, therefore, were a constitutionally protected exercise of his right to free speech.
12
Relying heavily
*7
on the principles elucidated
**568
in our decision in
State
v.
Krijger
,
In response, the defendants argue that the plaintiff's statements and gestures were true threats under
State
v.
Krijger
, supra,
"The [f]irst [a]mendment, applicable to the [s]tates through the [f]ourteenth [a]mendment, provides that Congress shall make no law ... abridging the freedom of speech. The hallmark of the protection of free speech is to allow free trade in ideas-even ideas that the overwhelming majority of people might find distasteful or discomforting.... Thus, the [f]irst [a]mendment ordinarily denies a [s]tate the power to prohibit dissemination of social, economic and political doctrine [that] a vast majority of its citizens believes to be false and fraught with evil consequence....
"The protections afforded by the [f]irst [a]mendment, however, are not absolute, and we have long recognized that the government may regulate certain categories of expression consistent with the [c]onstitution.... The [f]irst [a]mendment permits restrictions [on] the content of speech in a few limited areas, which are of such slight social value as a step to truth that any benefit that may be derived from them is clearly outweighed by the social interest in order and morality." (Internal quotation marks omitted.)
State
v.
Krijger
, supra,
**571 The first amendment permits states to restrict 13 true threats, which "encompass those statements [through which] the speaker means to communicate a serious expression of an intent to commit an act of unlawful violence to a particular individual or group of individuals.... The speaker need not actually intend to carry out the threat. Rather, a prohibition on true threats protect[s] individuals from the fear of violence and from the disruption that fear engenders, in addition to protecting people from the possibility that the threatened violence will occur....
"Thus, we must distinguish between true threats, which, because of their
*9
lack of communicative value, are not protected by the first amendment, and those statements that seek to communicate a belief or idea, such as political hyperbole or a mere joke, which are protected.... In the context of a threat of physical violence, [w]hether a particular statement may properly be considered to be a [true] threat is governed by an objective standard-whether a reasonable person would foresee that the statement would be interpreted by those to whom the maker communicates the statement as a serious expression of intent to harm or assault.... [A]lleged threats should be considered in light of their entire factual context, including the surrounding events and reaction of the listeners." (Citations omitted; internal quotation marks omitted.)
State
v.
Krijger
, supra,
In determining whether the trial court properly found that the defendant's statements and gestures were true threats, we recognize that, although we ordinarily review findings of fact for clear error, "[i]n certain first amendment contexts ... appellate courts are bound to apply a de novo standard of review.... [In such cases], the inquiry into the protected status of ... speech is one of law, not fact.... As such, an appellate court is compelled to examine for [itself] the ... statements [at] issue and the circumstances under
**573
which they [were] made to [determine] whether ... they ... are of a character [that] the principles of the [f]irst [a]mendment ... protect.... [I]n cases raising [f]irst [a]mendment issues [the United States Supreme Court has] repeatedly held that an appellate court has an obligation to make an independent examination of the whole record in order to make sure that the judgment does not constitute a forbidden intrusion [in] the field of free expression.... This rule of independent review was forged in recognition that a [reviewing] [c]ourt's duty is not limited to the elaboration of constitutional principles .... [Rather, an appellate court] must also in proper cases review the evidence to
*10
make certain that those principles have been constitutionally applied.... Therefore, even though, ordinarily ... [f]indings of fact ... shall not be set aside unless clearly erroneous, [appellate courts] are obliged to [perform] a fresh examination of crucial facts under the rule of independent review." (Citation omitted; internal quotation marks omitted.)
State
v.
Krijger
, supra,
To frame our independent analysis, we note that the trial court concluded that the student witnesses' statements supported findings that the plaintiff (1) "made frequent shooting hand gestures as a form of greeting **574 to students in the student center," (2) "with his hand in a shooting gesture, [he] aimed at students and made firing noises as they were walking through the student center," (3) "wondered aloud how many rounds he would need to shoot people at the school and referred to the fact that he had bullets at home and in his truck," (4) "showed off pictures of the guns he owned and boasted about bringing a gun to school," (5) "referred specifically and on more than one occasion to his 'shooting up the school,' " (6) "during a test of the school's alarm system stated that 'someone should really shoot up the school for real so it's not a drill,' " (7) "named as his 'number one target' a particular student in the student center," and (8) "made specific reference to a shooting at an Oregon community college where several students had been killed and wounded, stating that the Oregon shooting had 'beat us.' " Having reviewed the record, we agree with the trial court's conclusion that the totality of the plaintiff's comments and gestures would reasonably be understood to be a true threat of gun violence at the university. 14
Although most of the plaintiff's comments were individually not an "explicit threat," that phrasing does not render them protected speech, because "rigid adherence
**575
to the literal meaning of a communication without regard to its reasonable connotations derived from its ambience would render [statutes proscribing true threats] powerless against the ingenuity of threateners who can instill in the
*11
victim's mind as clear an apprehension of impending injury by an implied menace as by a literal threat.... Thus, a determination of what a defendant actually said is just the beginning of a threats analysis. Even when words are threatening on their face, careful attention must be paid to the context in which those statements are made to determine if the words may be objectively perceived as threatening." (Citation omitted; internal quotation marks omitted.)
State
v.
Krijger
, supra,
Given his express statements that he had access to firearms and ammunition, the plaintiff's statements and gestures-especially when viewed in the context that they provide for each other-are within the realm of those that have been deemed true threats, especially in the contemporary context of school shootings. We find particularly illustrative the decision of the United States Court of Appeals for the Eighth Circuit in
D.J.M.
v.
Hannibal Public School District No. 60
,
Numerous other cases support the reasonableness of concern over threats of gun violence in the educational
**578
setting because "knowledge by the target of a threat that the defendant had the means to carry out the threat can support the inference that the target would reasonably interpret the threat to be serious." (Emphasis omitted.)
State
v.
Taupier , supra,
The plaintiff also contends that the requisite particularity is lacking, because "[n]o one indicated a particularized fear. All concern and worry [were] generalized." We disagree. First, this argument is inconsistent with the trial court's finding that the plaintiff had in fact identified one specific student as " 'number one' " on the plaintiff's " 'hit list,' " and the statement had been communicated to that student directly. Although that student believed that the statement was made " 'jokingly,' " he nevertheless was " 'alarmed' " by it and was sufficiently concerned for everyone's safety to contact the university police. Second, this argument reads too
**580
narrowly the boilerplate proposition that a true threat is "a serious expression of an intent to commit an act of unlawful violence to a
particular
individual or group of individuals." (Emphasis added; internal quotation marks omitted.)
State
v.
Krijger
, supra,
Indeed, the relative frequency of these mass shootings informs the reasonableness
*14
of viewing the plaintiff's remarks, which were apparently unmoored to political or other discourse, as true threats. See, e.g.,
D.J.M.
v.
Hannibal Public School District No. 60
, supra,
The plaintiff argues, however, that "[n]o contemporaneous listener understood the statements to be a serious expression of an intent to cause harm," and that "[e]veryone who heard the statements understood them to be made jokingly." We disagree with the plaintiff's reading of the record. Although the narrative in the police reports that were evidence before the hearing panel indicates that some students elected to treat the plaintiff's remarks as made in jest, that narrative also indicates that some of those same students nevertheless were sufficiently perturbed to contact the university police, with one complaining witness apparently so fearful for his safety that he refused to appear as a witness at the university's disciplinary hearing. Given the objective nature of the inquiry, the listener's reaction of concern or fear need not be dramatic or immediate, and the apparently mixed emotions of the listeners are not dispositive. See
D.J.M.
v.
Hannibal Public School District No. 60
, supra,
**582
She did report the conduct to [an assistant principal] within a few hours, before she went home that day. Exhibiting fortitude and stoicism in the interim does not vitiate the threatening nature of [the student's] conduct, or [the guidance counselor's] belief that [the student had] threatened her."); see also
State
v.
Taupier
, supra,
To this end, we also disagree with the plaintiff's argument that his statements and gestures were ambiguous and more properly interpreted as benign jokes or political hyperbole that are protected by the first amendment, including the numerous innocent explanations that he proffers for them on a more granular basis, such as the existence of a gun emoji to justify his use of images of firearms and ammunition. These arguments reflect the plaintiff's attempts
*15
to seek shelter under the United States Supreme Court's landmark decision in
Watts
v.
United States
, supra,
The judgment is affirmed.
In this opinion the other justices concurred.
Schenck
v.
United States
,
The plaintiff appealed from the judgment of the trial court to the Appellate Court, and we transferred the appeal to this court pursuant to General Statutes § 51-199 (c) and Practice Book § 65-1.
At the time of the events underlying the present appeal, Tordenti was vice president for student affairs, Hernández was the associate dean for student affairs, Dukes was the director of student conduct, and Samuda was a detective employed by the university police department.
The trial court did not receive evidence or hear arguments during a formal bench trial in the present case. Instead, with the agreement of the parties, the trial court found facts on the basis of the record of the university's disciplinary proceedings and certain testimony from the plaintiff and Dukes at a pretrial hearing held before the court on August 8, 2016. See footnote 17 of this opinion and accompanying text.
The trial court stated that it "consider[ed] the prosecutor's declination of little moment. The requirements for establishing probable cause for the elements of threatening in the second degree, in violation of § 53a-62, bear no necessary relationship to the requirements for taking disciplinary action for a violation of the [university's student code of conduct]."
In addition to his expulsion from the university, the plaintiff was also "permanently banned from returning to," or attending events on, the premises of the other three four year university campuses in the Connecticut State College and University system.
Specifically, the plaintiff appealed from the hearing panel's decision to Tordenti, the university's vice president for student affairs, who, in turn, assigned Hernández to hear the appeal. After a hearing, Hernández issued a decision rejecting the plaintiff's claims that the hearing did not comply with the university's student code of conduct and that "the sanction of [e]xpulsion ... was not appropriate ...."
See footnotes 4 and 17 of this opinion.
We note that, on appeal, the plaintiff does not challenge the trial court's determinations that the university's "disciplinary procedures did not violate [his] due process rights under either the federal or state constitution and [that the university] adhered to the disciplinary procedures prescribed by the [university's student code of conduct]," and, therefore, no breach of contract or the duty of good faith and fair dealing occurred in that respect.
A detailed listing of the statements and gestures that the trial court determined were a true threat is set forth in the text accompanying footnote 14 of this opinion.
On November 16, 2018, after the oral argument in the present appeal, we invited numerous organizations and institutions, namely, the American Civil Liberties Union of Connecticut, the Connecticut Conference of Independent Colleges, the University of Connecticut, several sections of the Connecticut Bar Association, Yale University, and the Connecticut Association of Boards of Education, to file briefs as amici curiae. Only the Connecticut Association of Boards of Education accepted our invitation, and we are grateful for its participation.
We note that the plaintiff, although attempting to reserve and "not [waive]" the right to do so, has specifically declined to brief a claim, in accordance with
State
v.
Geisler
,
Beyond this procedural bar to review of the plaintiff's state constitutional claim, we recently rejected its merits in
State
v.
Taupier
,
It is undisputed that, given its status as a public institution of higher education, the university's enforcement of its student code of conduct via the commencement of disciplinary proceedings against the plaintiff constituted state action for purposes of the first amendment. See, e.g.,
IOTA XI Chapter of Sigma Chi Fraternity
v.
George Mason University
,
We note that the multiple statements and gestures made at different times in this case differ from those in our previous true threat cases, which considered the import of statements or gestures made in the course of a single incident. See, e.g.,
State
v.
Taupier , supra,
We note that the abbreviation " 'lol' means the speaker is 'laughing out loud.' "
D.J.M.
v.
Hannibal Public School District No. 60
, supra,
Consistent with
Watts
, our research reveals that not every reference to the topics of violence or shootings in the school setting-even the troubling and offensive ones-will rise to the level of a true threat. Some references are, for example, overtly political speech. See
Ross
v.
Jackson
,
Other school violence references, while disturbing, are made in creative or artistic contexts that lack other indicia of a true threat. See, e.g.,
In re George T.
,
Beyond artistic and political statements utilizing the imagery of mass shootings and violence, some references are just sophomoric attempts at humor-which, as the plaintiff points out, are protected as "[d]istasteful and even highly offensive communication does not necessarily fall from [f]irst [a]mendment protection as a true threat simply because of its objectionable nature."
J.S.
v.
Bethlehem Area School District
,
At the on-the-record status conference, which the trial court had convened for scheduling purposes in order to expedite a decision in this matter before the spring semester, the parties confirmed that, in light of the plaintiff's withdrawal of his monetary claims against the state, there was no additional evidence for the court to hear subsequent to the hearing on the plaintiff's motion for a preliminary injunction. Counsel for both parties confirmed that summary judgment was not appropriate given factual issues relevant to the due process claim, but also agreed that there were no outstanding factual issues with respect to the first amendment claim, which the plaintiff's attorney argued "remains clear ...." The parties then agreed with the trial court's determination that "the record is closed, as far as evidence is concerned," and that they "believe that they have adequately briefed the legal issues and essentially [are] waiting for a decision ...."
Specifically, the plaintiff repeatedly denied making the statements at issue in this case, arguing that the accusations against him were "entirely false." The plaintiff repeatedly stated his willingness to wear a body camera on campus, consistent with the "multiple cameras" that he keeps in one of his vehicles, as a result of vendettas and false statements that had been made against him by officers with multiple police departments, which he believed were the politically motivated result of the "flying gun that I had created at my house over the summer."
With respect to the specific allegations, Dukes stated that, during his investigation, the plaintiff had acknowledged having shown digital pictures of bullets to persons on campus and having discussed keeping ammunition inside of a vehicle, but denied making hand gestures in the form of a gun, having a "hit list," or referring to "anyone being his number one target." The plaintiff also stated during the investigation that one of the complaining students made up the allegations in an attempt to have him expelled from school. The plaintiff declined to question Dukes during the hearing.
During his own statement to the hearing panel, the plaintiff acknowledged having taken a picture of a bullet in one of his vehicles and explained that it was the result of having to search that vehicle for knives and ammunition to ensure compliance with university rules. The plaintiff denied making the shooting gestures with his hand, except for a "few occasions" on which one other student made them "in reply to me or has initiated [similar gestures] with me because I'm always talking about guns ...." The plaintiff stated that his remarks about the Oregon shooting were not that "they won or anything like that" but "essentially" that "the Oregon shooting's going to be the one discussed in the media because it was a larger shooting than Newtown." The plaintiff then denied saying that he "should shoot up the school" during testing of the school alarm system, stating that "I had not said anything to that effect. What I had said is imagine if there was an actual emergency where they needed to do it or have used it for real at this time because, you know, it's already being used. So if you had to use it for some reason, not suggesting that there would be any reason, but if you had to use it for some reason, how would you go about communicating the emergency." The plaintiff then stated that he showed off the picture of the bullet because he's "very political" and wanted to make the point that gun control legislation had the absurd result of requiring his expulsion for having ammunition in the vehicle, even if he had nothing with which to fire it. Finally, the plaintiff argued that he viewed one complainant's allegations as politically motivated given what the plaintiff had thought was friendly "political banter" in the student center about topics such as gun control or health care.
We acknowledge the plaintiff's argument that, "[r]eviewing the record as a whole, other statements [therein] indicate the statements were a joke." He cites his "quippish slip [during his opening statement to the hearing panel] comparing the president of the association of schools to a kind of monarch," as a "faux slipup [that] evinces the nuanced intellectual basis for his humor, the libertarian ben[t] that is the motive for the humor, and his dry delivery." This is consistent with the plaintiff's other argument that his statements were akin to Lenny Bruce's satiric observations, insofar as guns were one of his hobbies, he was "politically minded" and always up for a debate on political topics, including the right to bear arms, and had "found the bullets discussed in his vehicle while cleaning it out to comply with school rules" and "showed a picture of a bullet as part of a thoughtful meditation on the substance of gun rights ...." The plaintiff further argues that this sense of humor was "consistent with statements [that his father] made to police," noting that the plaintiff was "knowledgeable about many things and guns in particular" but had to be counseled " 'about saying the appropriate things during conversation.' " Although this evidence might well bear on the plaintiff's subjective intent in making the statements at issue, the trial court aptly noted that such evidence is immaterial, insofar as whether the statements constituted a true threat is an objective inquiry not requiring evidence of intent to threaten. See
State
v.
Taupier , supra,
We emphasize that our true threat analysis in the present case is limited to this record as reflected by the lower burden of proof in civil cases, and, consistent with the decision of the state's attorney not to prosecute in this case; see footnote 5 of this opinion; we take no position on whether the facts of the present case would have provided a sufficient basis for criminal liability under several potentially applicable statutes; see, e.g.,
State
v.
Taupier , supra,
Some prominent commentators are concerned that "[c]urrent college students are often ambivalent, or even hostile, to the idea of free speech on campus," and have expressed "surprise" about "how much the students wanted campuses to stop offensive speech and trusted campus officials to have the power to do so. A 2015 survey by the Pew Research Institute [indicated] that four in ten college students believe that the government should be able to prevent people from publicly making statements that are offensive to minority groups. The most recent studies demonstrate that students continue to wrestle with how best to value free speech and inclusivity, with more than half of students valuing diversity and inclusivity above free speech, more than half supporting bans on hate speech, and almost a third supporting restrictions on offensive speech." (Footnote omitted.) E. Chemerinsky, "The Challenge of Free Speech on Campus," 61 Howard L.J. 585, 588 (2018) ; see also, e.g., M. Papandrea, "The Free Speech Rights of University Students,"
Given this significant debate with respect to the vitality of freedom of speech on twenty-first century college campuses, it is understandable that the plaintiff attempts to frame his statements and gestures as those of a provocateur arguing in support of the right to bear arms, with his expulsion the result of offending the sensibilities of the university's snowflakes. See
Doe
v.
Rector & Visitors of George Mason University
,
We note that the material and substantial disruption of school activities standard articulated in
Tinker
v.
Des Moines Independent Community School District
,
The defendants' brief and oral argument before this court initially suggested that they asked us to apply the
Tinker
standard in a college setting, which presents a significant question of constitutional law given some potentially unclear language and quotations of
Tinker
in, among other cases,
Healy
v.
James
, supra,
Reference
- Full Case Name
- Austin HAUGHWOUT v. Laura TORDENTI Et Al.
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