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.
OPINION
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 ...