Opinion
16-P-570
02-22-2017
J.M. v. A.R.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The defendant appeals from a harassment prevention order and related extension orders issued against him under G. L. c. 258E. He argues that there was insufficient evidence to prove that he committed three wilful and malicious acts with the requisite intent to cause fear, intimidation, abuse, or damage to property. He further argues that there was insufficient evidence to prove that the acts did in fact cause fear, intimidation, abuse, or damage to property. We agree and vacate the orders.
The plaintiff has not filed a brief on appeal.
Background . We summarize the procedural history, reserving other facts as they become relevant to our analysis.
Acting on behalf of his seventeen year old son, J.M. (plaintiff), R.M. filed a complaint for a harassment prevention order against the defendant, who at the time was the plaintiff's classmate. The complaint was accompanied by a supporting affidavit signed by R.M., alleging the following three incidents of harassment: (1) on May 2, 2015, the defendant "made a false claim to try and get [the plaintiff] in trouble to lose his job"; (2) later that day the defendant "returned to [the plaintiff's] place of employment," "waited for him at his vehicle," and "verbally harassed" him; and (3) approximately two months earlier, the defendant "approached [the plaintiff] at school and verbally harassed him ... trying to incite him into a confrontation," in retaliation for R.M., a teacher at the school that both the plaintiff and the defendant attended, "turning [the defendant] in ... for another incident."
An ex parte harassment prevention order, which was set to expire on May 19, 2015, issued against the defendant on May 5, 2015. On May 19, 2015, a hearing on the extension of the ex parte order began. As that hearing was continued to May 21, 2015, the judge ordered that the ex parte order be extended to that day. At the close of testimony on May 21, 2015, the judge made oral findings that "the [d]efendant has committed three or more acts as set forth in the affidavit," which "were wilful and malicious and directed towards the [p]laintiff" and were "intended to cause fear, intimidation, or abuse." The judge also found that the acts "did in fact cause an emotional response, more specifically anger, fear that he[ ] might lash out, and put the [p]laintiff in fear of a physical altercation." Based on these oral findings, the judge extended the order for one year until May 20, 2016.
Although the judge did not specify whether "he" referred to the defendant or to the plaintiff, the only evidence about anyone "lash[ing] out" was the plaintiff's testimony that he (the plaintiff) felt he might lash out.
The expiration of the order did not render the case moot. See Seney v. Morhy , 467 Mass. 58, 62 (2014) ; Gassman v. Reason , 90 Mass. App. Ct. 1, 6–7 (2016).
Discussion . General Laws c. 258E, § 1, inserted by St. 2010, c. 23, defines harassment as "3 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." "Fear" in this context means "fear of physical harm or fear of physical damage to property." O'Brien v. Borowski , 461 Mass. 415, 427 (2012).
We review a harassment prevention order to determine "whether the judge could find, by a preponderance of the evidence, together with all permissible inferences," that the plaintiff made the following two showings. Gassman v. Reason , 90 Mass. App. Ct. 1, 7 (2016). First, the plaintiff must prove that "the defendant, motivated by cruelty, hostility, or revenge, wilfully committed three or more acts aimed at a specific person, each with the intent to cause that person to experience fear or intimidation, or to cause abuse or damage to property." O'Brien , 461 Mass. at 426. Second, the plaintiff must prove that the acts, "considered together, did in fact cause fear, intimidation, abuse, or damage to property." Ibid . In determining whether the plaintiff has made this second showing, it is the "cumulative pattern of harassment" that is relevant; in other words, the plaintiff need not establish that "each act" caused fear, intimidation, abuse, or damage to property. Id . at 426 n.8.
We conclude that the record in this case did not permit the judge to find, by a preponderance of the evidence, that the defendant committed two of the incidents set out in the affidavit with the intent required by the statute. We address the two incidents in chronological order.
The first occurred on or around March 9, 2015, in the school parking lot. The extent of the plaintiff's testimony about this incident was that the defendant approached the plaintiff's truck and "yell[ed]" at him. Without any evidence about what the defendant yelled, the judge could not have found that he committed a wilful and malicious act intended to cause fear, intimidation, abuse, or damage to property. See Seney v. Morhy , 467 Mass. 58, 63-64 (2014) (finding that plaintiff's general statements that defendant "verbally attacked" him and "attacked [his] personal being" were insufficient to establish harassment). The plaintiff thus failed to prove that the defendant's conduct on this day constituted an act of harassment.
The second incident involved the purported "false claim" that the defendant made on May 2, 2015, to the hardware store where the plaintiff worked. At the hearing the store manager testified that he received a call from a customer reporting that an employee fitting the plaintiff's description refused to help him load fertilizer into his truck. The defendant confirmed in his testimony that he was the one who had called the store manager. The call did not constitute an act of harassment, however. As an initial matter, the plaintiff admitted that he refused to help the defendant load the fertilizer, so the claim was not in fact "false." More fundamentally, even if the defendant's motivation was to "get [the plaintiff] in trouble to lose his job," as alleged in the affidavit, that does not equate with an intent to cause fear, intimidation, abuse, or damage to property. At most, the call was made with the intent to cause "fear of economic loss," which, without proof of accompanying intent to intimidate or to cause fear of physical harm or property damage, is not "enough to make [it] a ‘true threat’ that may be prohibited as civil harassment." O'Brien , 461 Mass. at 427 ("There is nothing in the language of the act or in its legislative history to suggest that the Legislature intended ‘fear’ to mean more than fear of physical harm or property damage"). Thus, this second incident also did not qualify as harassment under the statute.
Because the plaintiff failed to prove that the first two incidents constituted harassment, we need not consider the third. That incident occurred later in the day on May 2, 2015, when the defendant returned to the store and screamed, "Daddy, save me" or "Daddy, help me," several times, and the plaintiff noticed that the defendant's truck was parked right next to his, even though there were plenty of open spots right in front of the store.
We further conclude that the record did not permit a finding, by a preponderance of the evidence, that the acts, "considered together, did in fact cause fear, intimidation, abuse, or damage to property." Id . at 426. Although the plaintiff testified that the defendant's conduct made him "angry," anger does not equate with "fear of physical harm or fear of physical damage of property," contrary to what the judge found. Id . at 427. For this additional reason, the orders should not have issued.
The plaintiff did not claim, and could not plausibly claim, that any of the defendant's statements rose to the level of "fighting words." See O'Brien , 461 Mass. at 423 (defining "extremely narrow" fighting words exception to First Amendment as "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").
Accordingly, the harassment prevention order entered on May 5, 2015, and the extension orders entered on May 19, 2015, and May 21, 2015, are vacated.
The defendant's brief requests that we direct the trial court "to enter a judgment on remand that requires that specified action be taken to expunge the harassment prevention order from every law enforcement file in the world." We decline to do so; the statute mandates only that "the court [here, the District Court] notify the appropriate law enforcement agency in writing whenever any [harassment prevention] order is vacated and ... direct the agency to destroy all record of such vacated order." G. L. c. 258E, § 9, inserted by St. 2010, c. 23. See G. L. c. 258E, § 1 (defining "court"). The "appropriate law enforcement agency" is the one that served the order—here, the Wilmington police department. See G. L. c. 258E, § 9.
So ordered .
Vacated.