A.G. v. K.O. (2020)

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

The defendant, K.O., appeals from an order extending and modifying a harassment prevention order obtained under G. L. c. 258E, as well as from an order denying his motion for reconsideration. The defendant first contends that the extension and modification order should be vacated because (1) he was never served with the complaint and (2) the plaintiff, A.G., failed to demonstrate at least three acts of harassment as required by the statute. In the alternative, the defendant argues that the modification included prohibitions that violated his constitutional right to free speech and were thus impermissible. For these same reasons, the defendant also claims error in the denial of his motion to reconsider the extension and modification of the original harassment prevention order.

Background.² The plaintiff is the administrator at the nursing home where the defendant's mother resided. Although the plaintiff did not personally know the defendant prior to the incidents that resulted in the original harassment prevention order, she was aware of the strained relationship between the defendant and nursing home staff members under her direction. Further, a no trespass order issued to the defendant after he “turned his aggression at a nursing home resident.”

On April 26, 2019, the defendant left the plaintiff a voicemail in which he sounded agitated and stated several times that he was “coming down [to the nursing home] right now.” The defendant appeared at the nursing home about forty-five minutes later and “was swearing and screaming obscenities” at the plaintiff. A police officer witnessed the incident and escorted the defendant out of the building. The defendant continued to scream and swear as he was escorted out, and the officer eventually called for backup.

On May 23, 2019, the defendant picketed and distributed flyers outside the nursing home criticizing the plaintiff and the nursing home. The flyers contained the plaintiff's photograph and full name and accused her of being under investigation for abusing, neglecting, and causing the death of nursing home residents. About a week later, the plaintiff saw the same flyers “on all the telephone poles in [her] neighborhood.” Following the discovery of the flyers, the plaintiff was “extremely worried for the physical safety of [herself] and [her] children,” and applied for and was granted a harassment prevention order.

An extension hearing was held on June 7, 2019, at which the defendant was not present. At the hearing, the plaintiff testified that the defendant had continued to post derogatory statements about her on several places on the Internet. The plaintiff also testified that the defendant had “made new signs” that he was going “to use soon, probably outside [her] work.” The judge extended the original harassment prevention order until June 5, 2020, and modified it, ordering the defendant “not to post pictures or comments about [the] plaintiff anywhere, including online or any public place.” Two motions filed by the defendant to reconsider the extension and modification of the original harassment prevention order were denied.³

The defendant appeals from the order extending and modifying the original harassment prevention order, as well as from the order denying his motion for reconsideration.

Discussion. 1. Service of the complaint and order. The defendant first argues that the extension and modification of the original harassment prevention order was error because although he was served with a copy of the order, he was never served with a copy of the complaint, as required by G. L. c. 258E, § 9. In the defendant's brief, he argues that, in addition to a violation of the statute, this resulted in a violation of his due process rights. At oral argument, the defendant withdrew his due process argument. To the extent the defendant argues that he is entitled to relief due to noncompliance with the statute, we decline to afford such extraordinary relief. Neither the statute nor case law provide a remedy for such a deficiency, and there is no indication that the defendant suffered prejudice as a result.⁴

2. Evidence of three acts. The defendant also contends that the plaintiff failed to show three acts by the defendant that qualify as harassment under G. L. c. 258E, § 1. As relevant here, harassment is defined as “[three] or more acts of willful and malicious conduct aimed at a specific person committed with the intent to cause fear, intimidation, abuse or damage to property and that [did] in fact cause fear, intimidation, abuse, or damage to property.” G. L. c. 258E, § 1. “In the determination of whether the three acts ‘did in fact cause fear, intimidation, abuse or damage to property,’ it is ‘the entire course of harassment, rather than each individual act, that must cause fear or intimidation.’ ” A.T. v. C.R., 88 Mass. App. Ct. 532, 535 (2015), quoting O'Brien v. Borowski, 461 Mass. 415, 426 n.8 (2012).

A judge could have found, by a preponderance of the evidence, that the defendant committed three separate acts of harassment: (1) the voicemail; (2) the defendant's visit to the nursing home that ended with him being removed by police; and (3) the defendant learning where the plaintiff lived and going to her neighborhood.

In the context of the defendant's history of hostile behavior toward the nursing home staff and residents, a judge could have found that the voicemail the defendant left the plaintiff, stating that he would “come down [to the nursing home] right now,” was a threat. The judge could have also found that the voicemail was designed to cause fear and that it did in fact cause the plaintiff fear. The act of coming to the nursing home and confronting the plaintiff was clearly an act which a judge could have found was malicious and intended to intimidate the plaintiff and to cause her fear. The defendant argues that if we conclude that the voicemail and nursing home visit both constituted qualifying acts, we should consider them to be part of one continuous act. The voicemail and the nursing home visit, however, were more distinct, in time and in subject matter, than incidents in other cases that have been determined to constitute “one continuous act.” See, e.g., Smith v. Mastalerz, 467 Mass. 1001, 1001 (2014). The voicemail could have been considered an attempt to alarm the plaintiff and did not require any further action on the defendant's part. His appearance at the nursing home occurred about forty-five minutes later, included the defendant acting belligerently towards the plaintiff, and resulted in a violation of the previously issued no trespass order.

Finally, the judge could have also found that the defendant posted flyers around the plaintiff's neighborhood, which, when viewed in the context of his previous threat and volatile and confrontational behavior at her place of work, was intended to cause the plaintiff fear.⁵ The judge could have permissibly found that, in light of the voicemail and the confrontation at the nursing home, this was another escalating act meant to intimidate and cause the plaintiff fear. Furthermore, the judge was permitted to credit the plaintiff's level of fear, which was described in her affidavit as “extremely worried for the physical safety of [herself] and [her] children.”⁶ See, e.g., A.T., 88 Mass App. Ct. at 540.

3. Modification of the original harassment prevention order. The defendant also argues that the modification of the original harassment prevention order, which added a prohibition on “post[ing] pictures or comments about [the] plaintiff anywhere, including online or in any public place,” was error. Specifically, the defendant claims that the added terms amounted to an infringement of his rights to free speech under the First Amendment to the United States Constitution. We agree.

Instances of speech may not lawfully support a harassment prevention order unless they fall outside the protections of the First Amendment to the United States Constitution, either because they are “fighting words” or “true threats.” See O'Brien, 461 Mass. at 423-425. The judge modified the original harassment prevention order after the plaintiff testified that the defendant had continued to post derogatory statements about her on the Internet, and that the defendant had “made new signs” that he was going “to use soon, probably outside [her] work.”

These actions, however troubling, do not rise to the level of fighting words or true threats. The defendant did not personally insult the plaintiff in a face-to-face interaction, see O'Brien, 461 Mass. at 423, and while the plaintiff may have sincerely feared the defendant, there is no evidence that the defendant intended these particular actions to cause the plaintiff fear of imminent physical harm, see id. at 423-424. None of the defendant's online postings communicated a threat to commit an act of unlawful violence or an intent to place the plaintiff in fear of bodily harm. The defendant may well have intended to harm the plaintiff's reputation, but speech intended to cause “a fear of economic loss[ or] of unfavorable publicity” cannot be prohibited as civil harassment. Id. at 427. Modifying the original harassment prevention order to account for these actions resulted in an order that covered protected speech.

Therefore, so much of the orders entered on June 7, 2019, and September 13, 2019, that prohibit the defendant from “post[ing] pictures or comments about [the] plaintiff anywhere, including online or in any public place” are vacated.⁷ In all other respects, the orders are affirmed.

So ordered.

Vacated in part; affirmed in part.

FOOTNOTES

2.   The facts are taken from the evidence adduced at the hearing after notice, i.e., the plaintiff's affidavit and testimony, viewed in the light most favorable to the plaintiff. See A.T. v. C.R., 88 Mass. App. Ct. 532, 535 (2015). The judge did not make separate findings of fact.

3.   Only one of those motions for reconsideration is before us.

4.   The defendant's argument that the denial of his motion for reconsideration was error because the statute was not complied with fails for the same reason.

5.   It was a permissible inference that the defendant was the person that posted the flyers near the plaintiff's house. The defendant handed out the same flyers outside the nursing home about a week before the plaintiff discovered the flyers around her neighborhood. Moreover, the defendant did not dispute below that he was the one who posted the flyers.

6.   Because we conclude that the plaintiff showed three separate acts as required by G. L. c. 258E, § 1, the defendant's argument as it relates to the denial of his motion for reconsideration also fails.

7.   Because we conclude that the judge erred by modifying the original harassment prevention order at the extension hearing, we need not reach the defendant's argument that the denial of his motion for reconsideration was error due to the modification.