Haughwout v. Tordenti

         Argued October 17, 2018

         Appeal from the Superior Court, Joseph M. Shortall, J.

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[Copyrighted Material Omitted]

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          Mario Cerame, Hartford, 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.

         [332 Conn. 561] 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 [332 Conn. 562] (university). The plaintiff now appeals^[2] from the judgment of the trial court in favor of the defendants, Laura Tordenti, Ramón Hernández, 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

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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 [332 Conn. 563] ‘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 [332 Conn. 564] 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 ...