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Haughwout v. Tordenti

Supreme Court of Connecticut

July 30, 2019


          Argued October 17, 2018

         Action seeking reinstatement following the plaintiff's expulsion from Central Connecticut State University, and for other relief, brought to the Superior Court in the judicial district of New Britain, where the court, Hon. Joseph M. Shortall, judge trial referee, granted in part the defendants' motion to dismiss certain counts of the complaint; thereafter, the case was tried to the court, Hon. Joseph M. Shortall, judge trial referee, who, exercising the powers of the Superior Court, rendered judgment for the defendants, from which the plaintiff appealed. Affirmed.

          Mario Cerame, for the appellant (plaintiff).

          Ralph E. Urban, assistant attorney general, with whom, on the brief, was George Jepsen, former attorney general, for the appellees (defendants).

          Rebecca E. Adams filed a brief for the Connecticut Association of Boards of Education as amicus curiae.

          Robinson, C. J., and Palmer, McDonald, Mullins, Kahn, Ecker and Vertefeuille, Js.


          ROBINSON, C. J.

         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, 508 F.3d 765, 772 (5th Cir. 2007); Milo v. New York, 59 F.Supp.3d 513, 517 (E.D.N.Y. 2014); In re A.S., 243 Wis.2d 173, 194, 626 N.W.2d 712 (2001). The plaintiff, Austin Haughwout, brought the present action seeking to challenge his expulsion from Central Connecticut State University (university). The plaintiff now appeals[2] from the judgment of the trial court in favor of the defendants, Laura Tordenti, Ramon Hernandez, Christopher Dukes, and Densil Samuda, the university officials involved in that decision.[3] On appeal, the plaintiff claims that the trial court incorrectly determined that the various statements and gestures with respect to gun violence and mass shootings that led to his expulsion from the university were true threats that are not protected by the first amendment to the United States constitution, rather than hyperbolic and humorous statements on a matter of public concern. Although a public university campus is a unique forum for the free exchange of controversial, unpopular, and even offensive ideas, we nevertheless conclude that the plaintiff's statements and gestures were true threats. Accordingly, we affirm the judgment of the trial court.

         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 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 ‘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 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 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 Hernandez, [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 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 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 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 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 on the principles elucidated in our decision in State v. Krijger, 313 Conn. 434, 97 A.3d 946 (2014), as well as the United States Supreme Court's decision in Watts v. United States, 394 U.S. 705, 89 S.Ct. 1399, 22 L.Ed.2d 664 (1969), the plaintiff contends that his statements were not true threats but, instead, were protected ‘‘jokes'' or ‘‘ ‘political hyperbole' '' akin to the satiric works of Lenny Bruce, which constituted ‘‘dark humor'' with long roots in Western literature. The plaintiff emphasizes that, although it was ‘‘possible to construe [his] statements as a threat, '' the ‘‘more plausible interpretation is benign, '' given the context in which ‘‘[e]veryone who heard the statements understood them to be made jokingly, '' and ‘‘[n]o contemporaneous listener understood [them] to be a serious expression of an intent to cause harm.'' Relying on his explanations before the hearing panel to provide additional context, the plaintiff emphasizes that ‘‘none [of the listeners] reacted in a manner consistent with a serious expression of an intent to shoot members of the school community'' and puts his ‘‘[j]oking that someone should shoot up the school'' in the same constitutionally protected ‘‘nasty bucket as a dead baby joke.'' The plaintiff further argues that his statements lacked the particularity necessary to be a true threat, and that his statements-whether examined as a whole or in a ‘‘more granular way''-were ambiguous and, therefore, not true threats.

         In response, the defendants argue that the plaintiff's statements and gestures were true threats under State v. Krijger, supra, 313 Conn. 434, because ‘‘a reasonable hearer or receiver of the expressive conduct would believe [that he] was expressing a serious intent to commit an act of unlawful violence.'' Relying on, inter alia, Doe v. Pulaski County Special School District, 306 F.3d 616 (8th Cir. 2002), and State v. DeLoreto, 265 Conn. 145, 827 A.2d 671 (2003), the defendants contend that the plaintiff's comments and gestures are reasonably understood as a true threat, given his access to weapons and the fact that the students who witnessed them evinced their fear insofar as some stopped going to the student center, others went to the police, and, ‘‘while several of them verbally agreed to provide testimony or information at [the plaintiff's] campus disciplinary proceeding, only one showed up, and he became notably agitated and fearful, and refused to appear before the disciplinary panel when he learned [the plaintiff] would be present, leaving abruptly.'' The defendants argue that, although the plaintiff's threats were directed at particular individuals, including one student whom he had described as his ‘‘ ‘number one target,' '' the nature of the threats struck more broadly because they implicated the randomness that is the ‘‘fear inducing phenomenon'' of mass shootings. The defendants also contend that the record does not support the plaintiff's contention that his statements and gestures were humor, political satire, or political expression with respect to gun control, largely because he ‘‘did not make any such claims before the [university's] hearing panel, instead claiming that there was something about his personality that caused people to lie about him and his activities, and that the evidence against him was the result of a personal vendetta by a particular student to have him ...

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