J.D. v. A.M. (2019)

MEMORANDUM AND ORDER PURSUANT TO RULE 1:28

The defendant, A.M., appeals from the order denying her motion challenging the validity of a G. L. c. 258E harassment prevention order issued against her in the District Court. She argues that the order was entered in error because the plaintiff, J.D., did not prove three incidents of harassment within the meaning of the statute. We agree and direct that the order be vacated.

In reviewing a civil harassment prevention order, we consider whether the judge could find by a preponderance of the evidence, together with all permissible inferences, that the defendant had committed “[three] or more acts” of harassment. Seney v. Morhy, 467 Mass. 58, 60 (2014), quoting G. L. c. 258E, § 1. See Gassman v. Reason, 90 Mass. App. Ct. 1, 7 (2016). “[T]he acts of harassment must be wilful and ‘[m]alicious,’ the latter defined as ‘characterized by cruelty, hostility or revenge,’ and they must be committed with ‘the intent to cause fear, intimidation, abuse or damage to property.’ ․ Second, the multiple acts of civil harassment must ‘in fact cause fear, intimidation, abuse or damage to property.’ ” O'Brien v. Borowski, 461 Mass. 415, 420 (2012), quoting G. L. c. 258E, § 1. See Gassman, supra; Petriello v. Indresano, 87 Mass. App. Ct. 438, 444 (2015).

The plaintiff sought the order after an incident that occurred on August 16, 2017, in which the defendant, driving her car, followed the plaintiff's car out of the apartment complex where they both lived. The defendant tailgated the plaintiff, beeping her horn, gesturing with her middle finger, and mouthing, “Fuck you.” When the plaintiff changed lanes to get away from the defendant, the defendant changed lanes and continued to follow closely behind. The plaintiff was so shaken up by the incident that she had an anxiety attack.

This incident was not simply a lawful exercise of the defendant's free speech rights. “An instance of speech may support a harassment prevention order only if it falls outside the protections of the First Amendment to the United States Constitution, either by consisting of ‘fighting words’ or by constituting a ‘true threat.’ ” C.E.R. v. P.C., 91 Mass. App. Ct. 124, 130 (2017). In this case, the defendant did more than express herself -- she aggressively stalked the plaintiff in her car. This conduct qualifies as an act of harassment. See O'Brien, 461 Mass. at 429 (“[I]n certain limited circumstances, when accompanied by other less expressive and more threatening conduct, raising the middle finger may constitute fighting words or a true threat”).

However, the plaintiff must prove three incidents of harassment to support a G. L. c. 258E order. To make this showing, the plaintiff provided evidence of two other incidents. The first occurred on June 15, 2016. According to the plaintiff, the defendant reported to the apartment complex manager that the plaintiff had men living with her, told the plaintiff she was watching her, and called her a “cunt.” The plaintiff also described an incident on July 25, 2016, when the defendant videotaped the plaintiff's adult daughter and her dog and followed the daughter in her car. The plaintiff further testified that the defendant had been videotaping her, although the evidence regarding the timing and extent of the videotaping is unclear. The defendant admitted that she did in fact call the plaintiff a “cunt” and did take a photograph of the daughter, to show the landlord that the daughter was impermissibly bringing a pit bull into the plaintiff's apartment.

We need not determine whether the June 15 incident qualified as an act of harassment against the plaintiff, because the July 25 incident did not. The three acts must be “aimed at a specific person,” G. L. c. 258E, § 1. See DeMayo v. Quinn, 87 Mass. App. Ct. 115, 117 (2015). According to the plaintiff, the July 25 act was aimed not at her, but instead targeted her adult daughter. Because this act was aimed at her daughter, the plaintiff cannot use it obtain a harassment prevention order. As the plaintiff did not show three incidents of harassment directed at her, the order should not have issued.

Accordingly, we remand the case to the District Court for entry of an order vacating the c. 258E order against the defendant. The court shall also notify the appropriate law enforcement agency in writing that the order has been vacated and shall direct the agency to destroy all record of the order. See G. L. c. 258E, § 9.²

So ordered.

Vacated and remanded.

FOOTNOTES

2.   The defendant also requests us to order the plaintiff to reimburse her for the fees and costs she incurred while litigating this matter in the District Court. The request is denied, as we have no legal authority to issue such an order.