D.J.M. v. Hannibal Pub. Sch. Dist. # 60

• Decision Date: 01 August 2011
• Docket Number: 10–1579.,Nos. 10–1428,s. 10–1428
• Citation: 647 F.3d 754,270 Ed. Law Rep. 465
• Parties: D.J.M., a minor child, by next friend, D.M.; D.M., Father of D.J.M.; J.M., Mother of D.J.M., Plaintiffs–Appellants,v.HANNIBAL PUBLIC SCHOOL DISTRICT # 60; Jill Janes, Defendants–Appellees.D.J.M., a minor child, by next friend, D.M.; D.M., Father of D.J.M.; J.M., Mother of D.J.M., Plaintiffs–Appellees,v.Hannibal Public School District # 60, Defendant–Appellant,Jill Janes, Defendant.
• Court: U.S. Court of Appeals — Eighth Circuit

647 F.3d 754

270 Ed. Law Rep. 465

D.J.M., a minor child, by next friend, D.M.; D.M., Father of D.J.M.; J.M., Mother of D.J.M., Plaintiffs–Appellants,

v.HANNIBAL PUBLIC SCHOOL DISTRICT # 60; Jill Janes, Defendants–Appellees.D.J.M., a minor child, by next friend, D.M.; D.M., Father of D.J.M.; J.M., Mother of D.J.M., Plaintiffs–Appellees,

v.Hannibal Public School District # 60, Defendant–Appellant,Jill Janes, Defendant.

Nos. 10–1428

10–1579.

United States Court of Appeals, Eighth Circuit.

Submitted: Jan. 12, 2011.Filed: Aug. 1, 2011.

Branson L. Wood III, argued, Hannibal, MO, for appellant.Teri B. Goldman, argued, Joseph M. Wientge, Jr., on the brief, St. Louis, MO, for appellee.Before MURPHY, BYE, and MELLOY, Circuit Judges.MURPHY, Circuit Judge.

D.J.M., a student in the Hannibal Public School District # 60 (the District), sent instant messages from his home to a classmate in which he talked about getting a gun and shooting some other students at school. The alarmed recipient and a trusted adult she had consulted contacted the school principal about their concerns. School authorities decided they must notify the police, who took a statement from D.J.M. that evening and then placed him in juvenile detention. D.J.M. was subsequently suspended for ten days and later for the remainder of the school year. His parents later brought this action under 42 U.S.C. § 1983, alleging that the District violated D.J.M.'s First Amendment rights. Both sides moved for summary judgment. The district court ¹ granted summary judgment to the District on D.J.M.'s constitutional claims and remanded his state claim for administrative review. Both D.J.M.² and the District appeal. We affirm.

Summary judgment is appropriate only when there are no genuine issues of material fact and the moving party is entitled to judgment as a matter of law. Riehm v. Engelking, 538 F.3d 952, 962 (8th Cir.2008). Our review is de novo, viewing the facts “in the light most favorable to the non-moving party.” Id. In the context of a First Amendment claim, we must “make an independent examination of the whole record” to assure ourselves that “the judgment does not constitute a forbidden intrusion on the field of free expression.” Doe v. Pulaski Cnty. Special Sch. Dist., 306 F.3d 616, 621 (8th Cir.2002) (en banc). With this standard in mind we set out the background facts.

I.

D.J.M. attended school in the District for many years. According to school records, he did “very well” or had “good year[s]” in elementary and middle school. His parents home schooled D.J.M. in seventh and eighth grade, but he returned to the District in ninth grade in the 2005–2006 school year when he began attending Hannibal High School. While the record indicates that D.J.M. had a “goth” appearance or style which may have set him apart from some classmates, he did not have a history of threatening or violent conduct although he had participated in a mutual milk throwing incident with another student in ninth grade.

In the fall of 2006, D.J.M. was beginning his tenth grade year at the high school. He frequently communicated with his friends online by instant messaging.³ After school D.J.M. would type messages into his home computer's instant messaging program and then send them in real time to a friend's home computer. His friends would then type messages back. The record indicates that D.J.M. would send instant messages on a near daily basis to several of his friends, including C.M.

After school on October 24, D.J.M. sent instant messages from his home computer to several of his friends including C.M., who was also using her home computer. C.M. eventually became concerned about D.J.M.'s statements and emailed portions of what he had said to a trusted adult friend, Leigh Allen, and later to Principal Darin Powell. When Allen learned from C.M. about the content of their conversation, she advised C.M. to continue talking with D.J.M. Nine pages of C.M.'s conversation with D.J.M. were later recovered from D.J.M.'s computer.

The transcript of the retained portion of the instant message conversation begins with D.J.M. discussing his frustration at having recently been spurned by “L.,” a romantic interest.⁴ C.M. asks D.J.M. “what kidna gun did your friend have again?” D.J.M. responds “357 magnum.” C.M. then replies, “haha would you shoot [L.] or let her live?” D.J.M. answers, “i still like her so i would say let her live.” C.M. follows up by asking, “well who would you shoot then lol,” to which D.J.M. responds “everyone else.” D.J.M. then named specific students who he would “have to get rid of,” including a particular boy along with his older brother and some individual members of groups he did not like, namely “midget[s],” “fags,” and “negro bitches.” Some of them “would go” or “would be going.” C.M. later forwarded most of these statements to Allen by email.⁵

Throughout the conversation, D.J.M. and C.M. used forms of online shorthand. At several points they expressed amusement at the prospect of shooting particular individuals or groups by saying things like, “haha,” “YAYAYYAY,” and “lol.” The record reflects that “lol” means the speaker is “laughing out loud.” The conversation also touched on other topics including their music preferences, TV shows, body piercings, masturbation, and school classes. From time to time each person left the conversation to do other things.

C.M. became increasingly concerned about the threatening nature of many of D.J.M.'s messages, and without his knowledge she sent instant messages about them to Leigh Allen, an adult friend. C.M. told Allen she needed to talk about “something serious” because D.J.M. had been “talking about taking a gun to school” to “shoot everyone he hates [and] then shoot himself.” C.M. also told Allen that D.J.M. “want[ed] to go to school and shoot up the kids he doesnt like and [who] are ‘fags.’ ” C.M. explained that D.J.M. said he “want [ed] hannibal to be known for something” and that D.J.M. had been hospitalized and was “on all sorts of meds.”

C.M. confided to Allen that she was “kinda scared” and that D.J.M. had “talked to a friend ... [who] said he would give him a gun.” Allen responded, “that's some serious stuff, [C.M.], you have to tell.” C.M. told Allen that she did not know whether or not D.J.M. was “just depressed for one day” and was “just saying that cuz hes down.” Allen asked C.M. to talk to D.J.M. again and determine “if he is serious or not.” In Allen's words, “if the kid is bluffing that's one thing, but how would we feel if he isn't?” She was concerned enough herself to contact Principal Powell about the situation and later emailed Powell transcripts of her instant message conversation with C.M.

After reinitiating their online conversation, C.M. asked D.J.M. whether his nervousness “might have been the reason for what.. you wanting to like go shoot everyone? ?” D.J.M. responded: “wtf how did me shooting people at school come up into that [conversation]?” He then elaborated, “i still like [L.] and i don't want to do anything hurting or wrong to her.” D.J.M. later commented that if he had a gun, a particular named classmate “would be the first to die,” but then said, “anyways I'm not going to do that[.] not anytime soon I feel better than I did earlier today.” C.M. and D.J.M. continued to converse on other subjects. Meanwhile, C.M. returned to her conversation with Allen. After reading D.J.M.'s statements, Allen told C.M. that D.J.M. “sounds serious to me” and warned her to “watch what you say to him.”

C.M. subsequently emailed Principal Powell excerpts of her conversation with D.J.M. In addition to forwarding portions of their online conversation, C.M. wrote:

[D.J.M.] had told me earlier before I started saving the messages that he had a friend who had a gun that he could get. A revolver I think he said. He told me he wanted Hannibal to be known for something and that after he shot the people he didnt like he would shoot himself.... I asked him if he had a way to buy a gun and I asked if he had anyone old enough to get one for him and he said someone who was 21 could get one but he doesnt think he would buy it for him....

After seeing the emails from Allen and C.M., Powell immediately called Jill Janes, the district superintendent. Janes and Powell agreed they should call the police and they did.

Police went to D.J.M.'s house on the same evening, October 24, interviewed him, and took him into custody. After he gave a voluntary statement, he was placed in juvenile detention that night and then referred by juvenile court to Lakeland Regional Hospital for a psychiatric examination. Subsequently he was evaluated at Hawthorn Psychiatric Hospital where he admitted he had contemplated suicide. When he was discharged from the hospital on November 28, he was returned to juvenile detention.

On October 31, one week after D.J.M. had been placed in juvenile detention, Powell and assistant principal Ryan Sharkey decided to suspend him for ten days. Then on November 3, Superintendent Janes extended the suspension for the rest of the school year because D.J.M. had been placed in juvenile detention and his instant message conversation had had a disruptive impact on the school. Both Powell and Janes testified at the hearing before the school board that after word had spread in the school community about D.J.M.'s comments, Powell had received numerous phone calls from concerned parents asking what the school was doing to address D.J.M.'s threats and whether their children were on a rumored hit list. Powell testified that he increased campus security in several respects, including assigning staff to monitor entrances and public areas, limiting access to the school, and communicating these changes to parents. D.J.M. did not return to the high school until the following year, but graduated ahead of the rest of his class.

D.J.M.'s parents appealed his suspension to the school board. After according D.J.M. the type of due...