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Schools and Threats
In two cases arising in the school setting the SJC held that
drawings prepared by students could be prosecuted as threats,
Commonwealth v. Milo, M., 433 Mass. 149 (2001), or as disorderly
conduct Commonwealth v. Chou, 433 Mass. 229 (2001). The decision
in Chou contains a discussion of the distinction between expressions
that are protected by the First Amendment and those which have
no expressive content; so called, "true threats," that
can be prosecuted without running afoul of the First Amendment.
The Court wrote that speech that "harasses" or is a
"true threat" can be prosecuted. "Such speech is
unprotected: its purpose is to cause injury rather than to add
to, or to comment on, the public discourse." 433 Mass. at
236. For a case that reached a different conclusion on facts similar
to those before the Court in Milo M., see, In the Interest of
Douglas D., 626 N.W.2d 725 (Wisc. 2001).
In Milo M.., a student, who had been sent to the hall by his
classroom teacher, drew a picture of himself shooting his teacher.
This drawing was confiscated by a second teacher and shown to
the student's teacher. A short time later, the student drew another
picture in which he was pointing a gun at his teacher, entered
the classroom and, "in a defiant tone said, '[D]o you want
this one too?'" The teacher recognized that the student was
very upset and angry and instructed him to give the picture to
another student who in turn gave it to the teacher. As a result,
the student was immediately suspended for three days and sent
home. At the end of the school day, the teacher found the student
"loitering" near where her car was parked. The student
was charged with threats, G.L. c. 275 § 2, based on this
conduct. He went to trial jury waived and was convicted.
"The elements of threatening a crime include an expression
of intention to inflict a crime on another and an ability to do
so in circumstances that would justify apprehension on the part
of the recipient of the threat." 433 Mass. at 151, quoting,
Commonwealth v. Sholley, 432 Mass. 721, 725 (2000). The standard
for evaluating threats is objective; that is, did the circumstances
reasonably justify apprehension on the part of an ordinary person.
Id. The SJC held that the evidence supported a finding that the
juvenile expressed an intent to commit a crime based on the circumstances
of his conduct, which included the content of each drawing, that
the juvenile made two drawings not one, and, his angry and defiant
demeanor. 433 Mass. at 155. Although the Court acknowledged that
there was no direct evidence that the student had the ability
to carry out the threat, it held that there was sufficient circumstantial
to uphold the conviction. In support of this conclusion, the Court
again looked to the student's angry and defiant manner when he
gave the second drawing to the teacher, and, to the fact that
he was in the hall when he drew the pictures. Although the student's
presence in the hallway was unexplained, the court inferred that
the student was being disciplined. 433 Mass. at 156.
Although there was no evidence that the student had access to
a gun, the Court held that the apparent ability to "inflict
the crime" element of threats was nonetheless satisfied as
the juvenile might obtain a gun in the future. That is, there
need be no proof that the juvenile has the present ability to
inflict the crime threatened. It suffices that he may be acquire
such ability in the future. According to the Court, the juvenile's
ability to carry out the threat could be, "inferred from
the fact that the juvenile was seen loitering near [the teacher's]
car later the same day." Id. Finally, the court considered
the "'climate of apprehension' concerning school violence"
and the recent highly publicized school shootings to conclude
that the teacher's fear that the juvenile could carry out the
threat was reasonable. 433 Mass. at 158.
In Chou, the defendant was charged with disorderly conduct for
violating that portion of G.L. c. 272 § 53 that criminalizes,
"persons who with offensive and disorderly acts or language
accost or annoy persons of the opposite sex." The defendant,
who was eighteen years old at the time of the events in question,
was in a brief dating relationship with a young woman, high school
student. During the course of this relationship the defendant
threatened to hit the young woman once. Several weeks after the
woman broke up with the defendant he produced a number of flyers
that were captioned "MISSING," and included the young
woman's name and a large photograph of her beneath the caption.
The flyer listed the young woman's race as "white slut"
and the description of her contained graphically sexual language.
433 Mass. at 230 - 231. The defendant sneaked into her high school
one evening and hung several of the flyers. At trial, the defendant
did not deny creating or posting the flyers. Rather, he argued
that neither his acts nor his language were disorderly within
the meaning of the statute. He was convicted and appealed raising
the same legal arguments. The SJC upheld the conviction
In its decision, the Court canvassed the history of "tortured"
judicial constructions of G.L. c. 272 § 53 that had saved
the statute from First Amendment challenges. 433 Mass. 232 - 233.
It noted that the "disorderly person" prong of the statute
had been construed to permit prosecutions only of those who, "with
purpose to cause public inconvenience, annoyance or alarm, or
recklessly creating a risk thereof . . .: (a) engage[ ] in fighting
or threatening, or in violent or tumultuous behavior; or . . .
(c) create[ ] a hazardous or physically offensive condition by
any act which serves no legitimate purpose of the actor.'"
433 Mass. at 232, quoting, Commonwealth v. Sholley, 432 Mass.
721, 727 n. 7 (2000). Analyzing the defendant's conduct against
the backdrop of the decisional law construing the statute, the
court considered whether the term "disorderly" in the
annoying and accosting prong of the statute would be given the
same construction as in the "disorderly person" prong
and, if so, whether the statute could be applied to language that
is personal and private and has no public impact. It construed
"disorderly" as used in the "annoying and accosting"
prong of the statute to apply to, "acts or language . . .
that involve fighting or threatening, violent or tumultuous behavior,
or that create a hazardous or physically offensive condition for
no legitimate purpose of the actor, whether the resulting harm
is suffered in public by the public or in private by an individual."
433 Mass. at 233.
The Court then analyzed the flyers to determine whether the content
met this definition. It quickly concluded that the fliers did
not involve fighting, violent or tumultuous behavior, and that
the defendant's conduct in hanging the fliers did not create a
hazardous or physically offensive condition as those terms have
been defined by the decisional law. 433 Mass. at 234. As to threats,
however, the Court held that the content of the fliers could be
construed as threatening. It wrote that, "sexually explicit
language, . . . directed at particular individuals in settings
in which such communications are inappropriate and likely to cause
severe distress, may be inherently threatening." 433 Mass.
at 234. Although the flyers contained no explicit threats, the
Court wrote that "language properly may be understood and
treated as a threat even in the absence of an explicit statement
of intention to harm the victim as long as circumstances support
the victim's fearful or apprehensive response." Id. Here,
the circumstances which the Court found to support the young woman's
fearful response, included the "sexually charged language,"
the use of the word "missing" with the young woman's
picture on the flyers which suggested that she may become a "missing
person" or "suffer sexually violent harm;" the
defendant's prior threat to hit her, and, the fact that the defendant
sneaked into the school to hang the flyers. 433 Mass. at 235.
The Court also upheld the conviction against a First Amendment
challenge, finding that the "defendant's language had no
expressive purpose but was instead, intended to 'get back' at
the victim by placing her in fear that she might suffer some sexual
harm or wind up among the 'missing.'" 433 Mass. at 237. Finally,
the Court dismissed the defendant's challenge to the statute on
equal protection grounds as it criminalizes only those who annoy
and accost persons of the opposite sex. 433 Mass. 238 - 239.
In the Douglas D., supra, case a student had been given a creative
writing assignment by his teacher Mrs. C. Instead of starting
the assignment, the student disrupted the class resulting in his
being sent to the hall, like the student in Milo M. While in the
hall the student wrote an essay about an old woman named Mrs.
C who beat children and became a teacher. In the student's story,
Mrs. C kicked a student "Dick" out of class and, "[t]he
next morning Dick came to class & in his coat he conseled
[sic] a machedy [sic]. When the teacher told him to shut up he
whiped [sic] it out cut her head off." The teacher, Mrs.
C., considered the story to be a threat that if she disciplined
Douglas again he would harm her. The trial court convicted Douglas
on a complaint charging threats. On appeal, the Wisconsin Supreme
Court reversed the conviction holding that Douglas' story was
not a "true threat" and could not be prosecuted.
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School Records
In Commonwealth v. Bucella, 434 Mass,. 473 (2001), the Court
considered whether the defendant's Fourth Amendment rights were
violated when school officials turned samples of his schoolwork
over to the local police and requested that they compare handwriting
on the schoolwork with graffiti found in a class room and hallway.
The graffiti in question contained racial slurs and obscenities.
The defendant was a suspect in the graffiti incident based on
his refusing to work with his special education teacher and disruption
of her classroom. He had referred to this teacher as "Tituba,"
a reference to a black slave in "The Crucible." 434
Mass. at 474. Some of the graffiti was written on the board in
this teacher's classroom. As to the graffiti in the hallway, the
defendant had been identified as the only student in that part
of the building when the graffiti was written. In the District
Court the defendant successfully moved to suppress the results
of handwriting analyses that suggested that he was the author
of the graffiti arguing that the seizure of his school work was
unlawful under the Fourth Amendment and state and federal law
providing for the confidentiality of student records. 434 Mass.
at 474.
To complain of an unlawful search, a defendant must "show
that there has been a 'search,' and, to show that he has been
subjected to . . . [a] 'search,' he must show that the police
have intruded on a reasonable expectation of privacy." 434
Mass. at 476. The Court held that the defendant had no expectation
of privacy in his handwriting because, "'[h]andwriting, like
speech, is repeatedly shown to the public, and there is no more
expectation of privacy in the physical characteristics of a person's
script than there is in the tone of his voice.'" Id. (Citation
omitted.) See, Commonwealth v. Beauchemin, 410 Mass. 181, 185
(1991), (no privilege protecting school records from disclosure
pursuant to lawfully issued subpoena).
The defendant argued that regulations promulgated by the state
Department of Education pursuant to G.L. c. 71 § 34D which
protect the confidentiality of "student records," created
a reasonable expectation of privacy. See, 603 CMR § 23.00,
et seq. (1995). See also, the Family Education Rights and Privacy
Act of 1974 (FERPA) 20 U.S.C. § 1232g. The regulations prohibit
disclosure of "student records" without the consent
of the student or the student's parents. 434 Mass. at 477 - 478.
The regulations define student records as "the transcript
and the temporary record, including all information . . . or any
other materials regardless of physical form or characteristics
concerning a student that is organized on the basis of the student's
name or in a way that such student may be identified, and that
is kept by the public schools of the Commonwealth. " 434
Mass. at 479, quoting, 603 CMR § 23.02. The Court rejected
the defendant's argument that the regulations should be interpreted
to cover tests, homework and other documents that come into a
school's possession; however briefly, reasoning that papers that
are graded and returned are not "kept" by the school.
The Court wrote that accepting the defendant's broad and literal
interpretation of the regulations would lead to "multiple
layers of absurd consequences." 434 Mass. at 482. The Court
found support for the conclusion that homework papers and tests
are not student records because they are not expressly mentioned
in the regulations. 434 Mass. at 479.
Even though the Court held the papers in question were not protected
by the DOE regulations, it took note that, "[a] student would,
even without reference to the regulations reasonably expect that
any written work handed in to a teacher would be used solely for
educational purposes, i.e., that the teacher would review, correct,
and grade the paper or test and return it to the student. A student
would not expect, for example, that a teacher would turn over
copies of student homework, papers, tests, or quizzes to the media.
" 434 Mass. at 483-484. The court distinguished cases holding
that a person does not have a reasonable expectation of privacy
in materials voluntarily entrusted to a third party; United States
v. Miller, 425 Mass. 435 (1976) (bank records); Commonwealth v.
Cote, 407 Mass. 827, 833-836 (1990) (telephone message slips),
on the grounds that schools are a governmental entity not a private
party; school attendance is compulsory; and students are not acting
voluntarily when giving homework to teachers. 434 Mass. at 485.
The Court wrote that, "[i]t would appear reasonable to expect
that a government agency, to which a citizen is required to submit
certain materials, will use those materials solely for the purposes
intended and not disclose them to others in ways that are unconnected
with those intended purposes. Thus a student may reasonably expect
that papers handed in to public school teachers will be used solely
for educational purposes and not disclosed outside the educational
setting." Id. Based on this reasoning, the court assumed
that the student had a reasonable expectation of privacy in the
school papers notwithstanding that he had given them to his teachers.
Id.
The delivery of the defendant's school work to the police invaded
his reasonable expectation of privacy, therefor, it was a search
within the meaning of the Fourth Amendment. The Court next assessed
the reasonableness of the search. 434 Mass. at 485-486. Under
the Fourth Amendment, a search by school officials is lawful if
it is reasonable under all the circumstances. New Jersey v. T.L.O.,
469 U.S. 325, 341 (1985). Here, based on specific information
linking the student to the graffiti, the Court concluded that
the search was reasonable. 434 Mass. at 486-487.
The investigation in this case, up to the request that the police
conduct handwriting analysis on the student's homework, was conducted
entirely by a vice principal at the school. Had the police asked
for the homework or otherwise initiated the handwriting comparison,
the result may well have been different. See, Commonwealth v.
Neilson, 423 Mass. 75 (1996) (when there is police involvement
in either the decision to search or in the conduct of the search,
the constitutional limits on police searches will be applied in
full).
Chief Justice Marshall dissented from that portion of the majority
opinion that held that the schoolwork in question, homework assignments
and tests, is never a student record because it is not "kept"
by the school. 434 Mass. at 488-490. The Chief Justice wrote that
the determination of whether a particular test or homework assignment
is a "student record" requires determining whether the
"written work is 'kept' in a school's administrative files."
Under the Chief Justice's analysis schoolwork that is kept in
administrative files, as distinguished from a teacher's files,
are student records. Id. The Chief Justice would nonetheless have
reversed the grant of the defendant's motion to suppress as the
defendant did not "make any showing . . . that school officials
'kept' the school work papers at issue." 434 Mass. at 488.
That is, failing to prove that the school work was "kept"
by the school, precluded the defendant from establishing that
it was part of his "student record" and hence that he
had a reasonable expectation of privacy in the school work. Counsel
must bear in mind that when arguing suppression motions the defendant
bears the burden of proving that there was a "search;"
that is, an intrusion on a reasonable expectation of privacy.
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School Searches
In Commonwealth v. Damian D., 432 Mass. 725 (2001), the Court
held that the search of a juvenile who had violated school rules
by skipping classes and being tardy was unlawful at inception
because there was no evidence supporting a belief that he possessed
contraband. 423 Mass. at 729. The court wrote that, "Damian
was not searched for evidence of his uncontested truancy; he was
searched for contraband. It was pure speculation to conclude that,
because Damian was out of class for a period of time during the
day, he was likely to have contraband." 434 Mass. at 730.
Because the Court decided that this search was unlawful at inception
under the Fourth Amendment, it did not reach the question of whether
the scope of the search, which included removal of the student's
shoes and socks, was overbroad. The Court also did not reach the
issue of whether Article 14 of the Massachusetts requires a quantum
of suspicion greater than reasonable suspicion--the Fourth Amendment
standard--for school officials to search a student in school.
The Court's decision makes it clear that even when there is reason
to believe a student has violated school rules, the student may
be searched only if there is also a reasonable belief that the
search will yield evidence of the violation or contraband. 432
Mass. at 729 - 730.
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Stop and Frisk
In Commonwealth v. Barros, ___ Mass. ___ (2001), (Appeals Court
decision reported in last years update), the Supreme Judicial
Court upheld the Appeals Court's decision that the stop of a Cape
Verdean man based on a report from an anonymous informant that
he was carrying a gun was unlawful under Article 14. Critical
to the Court's decision was its determination of when the defendant
was stopped. The SJC agreed that the stop occurred when the police
officer got out of his cruiser, walked up to the defendant, pointed
his finger at the defendant and told him to "Come here."
This statement, when considered with the fact that two other police
officers had arrived on the scene, communicated to the defendant
that he was not free to leave. Thus, the defendant was seized
when the officer told him to "come here." The Court
next considered whether the anonymous tip provided a reasonable
suspicion to justify a brief stop of the defendant. When a stop
is made on the basis of an informant's tip, the Court evaluates
the tip's indicia of reliability by focusing on the informant's
reliability and his or her basis of knowledge. Police corroboration
can make up for deficits in one or both factors. The Court concluded
that the tip, which merely accurately described the defendant,
and the officer's corroboration of it did not "provide sufficient
indicia of reliability for suspecting that the defendant had a
handgun." Moreover, possession of a handgun alone is not
illegal. The crime is carrying a firearm without a license. Nothing
in the tip suggested unlicensed possession. Justices Sosman and
Cordy concurred in the Court' result but wrote separately to suggest
that the stop would have been upheld had the record been better.
They opined that the officer likely did have an objective basis
for suspecting that the defendant was not licensed to carry a
firearm-the defendant's youth--but lamented that no evidence on
this factor was put before the trial court.
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