A.R. v. L.C.

• Decision Date: 17 August 2018
• Docket Number: No. 16-P-1013,16-P-1013
• Citation: 93 Mass.App.Ct. 758,108 N.E.3d 490
• Parties: A.R. v. L.C. (and a companion case).
• Court: Appeals Court of Massachusetts

93 Mass.App.Ct. 758

108 N.E.3d 490

A.R.

v.L.C. (and a companion case¹ ).

No. 16-P-1013

Appeals Court of Massachusetts, Norfolk..

Argued September 8, 2017

Decided August 17, 2018

L.C., pro se.

Jill MacDonald, Foxboro, for A.R.

J.C., pro se, was present but did not argue.

Present: Rubin, Neyman, & Henry, JJ.

RUBIN, J.

In this appeal from the issuance of two "harassment prevention orders" under G. L. c. 258E, we are faced once again with the consequences of the variance between the plain language of the statute and the narrowing construction given the statute in O'Brien v. Borowski, 461 Mass. 415, 961 N.E.2d 547 (2012) ( O'Brien ).

Chapter 258E and its limiting construction. As it reads in the statute books, G. L. c. 258E provides that a protective order shall issue based upon a finding of "harassment." The statute defines harassment to mean "[three] or more acts of willful and malicious conduct aimed at a specific person," each of which must be "characterized by cruelty, hostility or revenge" and "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." G. L. c. 258E, § 1, inserted by St. 2010, c. 23. (The statute also provides independently for issuance of an order based on acts that "by force, threat or duress cause[ ] another to involuntarily engage in sexual relations," or that constitute violations of statutes prohibiting indecent assault and battery, rape, rape and abuse, assault with intent to commit rape, enticement, stalking, criminal harassment, and drugging persons for sexual intercourse. G. L. c. 258E, § 1. That provision is not at issue in this case.)

The statute was passed to fill a gap left by G. L. c. 209A, which allows individuals to seek abuse prevention orders against family or household members. Violation of such an order is punishable as a crime. However,

"[a] person who is abused by someone other than a ‘family or household member’ does not qualify for a protective order under c. 209A and could obtain a restraining order only by seeking relief in the Superior Court under Mass. R. Civ. P. 65 .... Violation of such a restraining order may constitute a contempt of court, but is not a crime.... Chapter 258E was enacted in 2010 to allow individuals to obtain civil restraining orders against persons who are not family or household members, and to make the violation of those orders punishable as a crime."

O'Brien, supra at 419, 961 N.E.2d 547.

The seriousness of an order under c. 258E is reflected not only in the fact that violation is a criminal offense, but in the fact that records of all such orders are entered in the Statewide domestic violence registry from which they may never be removed even if there was an insufficient legal or factual basis for their issuance. See G. L. c. 258E, § 9 ; J.S.H. v. J.S. 91 Mass. App. Ct. 107, 109-110, 71 N.E.3d 910 (2017) ( J.S.H. ).² Such an order thus has significant and essentially indelible consequences for the person against whom it issues.

Unsurprisingly in light of the language of the statute, our courts have issued orders based upon a variety of abusive and intimidating willful and malicious conduct characterized by hostility, amounting to what, in colloquial terms, we would describe as harassment. In 2012, however, in O'Brien, the Supreme Judicial Court found that the language of the statute reached some activity protected by the First Amendment. O'Brien, 461 Mass. at 420, 961 N.E.2d 547. Rather than striking the statute down, the court gave it a "narrowing construction." Id. at 421, 961 N.E.2d 547. Although, confusingly, the law remains on the books in unamended form, under O'Brien, a court may not issue a protective order thereunder simply on the basis of three acts characterized by hostility causing and intended to cause fear, intimidation, or abuse committed willfully and maliciously and aimed at a specific person. Rather, each of the three willful and malicious predicate acts aimed at a specific person must be either a "true threat" -– which is what is at issue here, as in the other decided appellate cases addressing the statute -– or "fighting words" -- which are not at issue here and which we can put to one side for present purposes, id. at 425, 961 N.E.2d 547 -- at least where the predicate act is not an intentional act either of unlawful violence, i.e., acts that "attempt[ ] to cause or caus[e] physical harm," or that causes property damage that meets the other requirements of the statute. G. L. c. 258E, § 1. 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," Virginia v. Black, 538 U.S. 343, 359, 123 S.Ct. 1536, 155 L.Ed.2d 535 (2003) ( Black ) -- under c. 258E, the specific individual to whom the alleged predicate acts are directed. Further, 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 -–again not relevant here –- "physical damage to property." O'Brien, 461 Mass. at 427, 961 N.E.2d 547. Even threats intended to do anything else to the specific individual will not amount to predicate acts for purposes of c. 258E, notwithstanding the language of the statute, and only a threat intended to cause fear of physical harm (or physical property damage) can qualify as one of the three predicate acts for purposes of c. 258E. This is true even when the act is not characterized as one intended to cause "fear" (i.e., of physical harm), but as one intended to cause "intimidation" or "abuse" as well, even though the colloquial meaning of those two words is dramatically broader. See id. at 425, 426-427, 961 N.E.2d 547 (" ‘Intimidation in the constitutionally proscribable sense of the word is a type of true threat, where a speaker directs a threat to a person or group of persons with the intent of placing the victim in fear of bodily harm or death.’ [ Black, supra] at 360 .... Where the acts are aimed at a specific person, an intent to cause ‘abuse’ is certainly consistent with a true threat, because abuse is defined in [c. 258E] as ‘attempting to cause or causing physical harm to another or placing another in fear of imminent serious physical harm.’ G. L. c. 258E, § 1"). Further, even when there are three predicate true threats intended to cause fear of physical harm, they must together in fact cause such fear. See id. at 426 n.8, 961 N.E.2d 547.

Since O'Brien, our 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. See, e.g., Seney v. Morhy, 467 Mass. 58, 64, 3 N.E.3d 577 (2014) (little league parent "verbally attacked and threatened to have [plaintiff, an assistant coach,] thrown off the team in front of numerous other parents" and "attacked [plaintiff's] personal being in front of every single parent"); Van Liew v. Stansfield, 474 Mass. 31, 38-39, 47 N.E.3d 411 (2016) (defendant publically accused plaintiff of being corrupt and a liar and during telephone call loudly called plaintiff uneducated and stupid); Gassman v. Reason, 90 Mass. App. Ct. 1, 9, 55 N.E.3d 997 (2016) (repeated complaints from downstairs neighbor about loud piano playing by neighbor in upstairs apartment); C.E.R. v. P.C., 91 Mass. App. Ct. 124, 127-128, 71 N.E.3d 915 (2017) (loud music played at all hours of night, use of strobe light at night, and installation of security cameras on property by tenants).

The evidence and the orders at issue. With this as background, we turn to the facts of this case. In this case, the plaintiff, A.R., obtained orders under c. 258E against the defendants, L.C. and J.C., his mother- and father-in-law. In his affidavit he alleged that the defendants accompanied their daughter (his wife, from whom he was separated) when the parents exchanged their young child, over whom they shared legal and physical custody, in public places. According to A.R., there were several incidents in which L.C. would video record the exchanges, even though A.R. asked her not to, and the defendants would block his exit from the commercial establishment in which the exchange was taking place. First, A.R. averred that on April 8, 2016, during one of these incidents, his daughter had removed her boot and he had difficulty putting it on. L.C. raised her voice, said, "[Y]ou put the boots on her," and stuck the video recorder within three feet of his face. Next, A.R. describes another incident that same day in which his daughter's coat zipper was stuck. A.R. and L.C. got into an argument and L.C. "brushed right past [him], ... and placed [his] daughter into the stroller," and yelled at him, "[T]he zipper is broken, repair it. You must repair it." A.R. also describes another, undated incident from about two weeks before he signed the affidavit on April 13, 2016. L.C. videotaped the whole exchange and stuck the video recorder in his face. J.C. "became noticeably agitated, glared at [him] and stated ‘Are you sure you [are] able to take best care of her?!’ in a firm, nasty, condescending tone." He asked the defendants to move out of his way, they did not, and they finally moved after he asked again. A.R. stated that he believed that this behavior was an attempt to provoke a response. A.R. describes a final child exchange incident from about a month before the affidavit was signed in which L.C. stuck the video recorder in his face and both defendants blocked the exit, again moving only after he asked a second time. According to A.R., J.C. "gave [him] an intense look and made a derogatory comment and stance toward [him]."

In addition to the incidents at the child exchanges,...