Appellate Court Vacates "Harassment Prevention Order" Aimed at Protecting Police Officer

M.B. v. T.E., decided Aug. 11 by the Appeals Court of Massachusetts (Justices Vickie Henry, Kenneth Desmond & John Englander), reverses a harassment prevention order issued under Mass. General Laws ch. 258E; the factual backstory:

In apparent retaliation for T.E.'s cooperation with a Federal drug prosecution, a third party, S.B., established "whosarat.com," a website dedicated to identifying and posting personal information about government informants. This situation and harassment by S.B. has, quite understandably, caused T.E. considerable distress. {Any stress that T.E. has experienced, of course, would not justify his harassing someone else.} T.E. believes that because certain details known only to the police appeared on the website, a particular police department must be providing his information to the website.

M.B. is a police officer of that department, shares the same last name as S.B., and is his distant relative. T.E. theorized that M.B. and the police department are part of a conspiracy to harass him. He sent a series of emails to the department's Chief about the situation, some of which were intemperate and counterproductive, and some of which M.B. perceived as a threat.

M.B. sought and received a harassment prevention order against T.E., but the appellate court vacated the order. The statute authorizes such orders based on a finding of "[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 does in fact cause fear, intimidation, abuse or damage to property," and the appellate court concluded that such acts were not sufficiently shown:

To prevent chilling a defendant's rights under the First Amendment, where, as here, some of the conduct involves speech, that speech must constitute "true threats" or "fighting words" to qualify as an act of harassment. True threats are statements that "cause the victim to fear [ ] harm now or in the future and evince intent on the part of the speaker or actor to cause such fear." … Phrases "amenable to a reasonable, nonviolent interpretation" do not suggest a clear intent to threaten. Ultimately, a judge cannot characterize speech as an act of harassment unless the judge can find that the speaker had the subjective intent to communicate that statement as a threat….

We turn first to a June 17, 2022, email from T.E. to the Chief, M.B., and T.E.'s lawyer. For context, T.E. had previously emailed the Chief that there

"seems to be quite of intercorrelation between [S.B.] and your officer [M.B.]. I guess they have a web site that targets police and rats as you call them. [Link to website].

"Not sure either but this is going come out now.

"This last filing and court appearance around this issue have been the tip over for me.

"We will be filing a bill of particulars regarding [M.B.].

"Thank you for responding I only ask that you investigate this. I have an attorney on file you can contact him if needed"

After further back and forth, on July 5, 2022, the Chief acknowledged that M.B. "is a distant relative with no known affiliation" to S.B. T.E. responded,

"OK

"That seems to match up with the statement ' I come from a big Irish/Italian family I take care of my own problems ! '

"[YouTube link]

"I don't have specific allegation yet , but for my own sanity I would like to have conversation with Officer [M.B.] . Shouldn't be that big of a deal , he's a distant relative no known affiliation

"What time this week is good for you guys ?"

The YouTube link led to a video interview by a media personality with S.B., who made the preceding statement. In other words, T.E. was quoting S.B.'s statement that could be perceived as a threat by S.B. directed at T.E. The point of the email was to seek help from the police, albeit in a ham-fisted way, to determine whether M.B. is part of S.B.'s family that might take care of its own. This "reasonable, nonviolent interpretation" does not suggest T.E. intended to threaten M.B. when he sent the email. While it is understandable that a busy reader might think T.E. was making the statement to M.B., read in context, the email did not amount to a true threat or fighting words by T.E. directed at M.B.

While T.E. repeatedly contacted M.B.'s chief and used crude language, the other communications did not as a matter of law constitute harassment…. In one email the Chief told T.E. he would be out of the office for knee surgery and referred him to a Captain. T.E.'s response, "Are you f'ing kidding me?" was not a true threat. While the email could be "characterized by … hostility," there is no indication that T.E. intended to cause M.B. fear, intimidation, or abuse when T.E. sent it. In fact, all other email communications from T.E., though sometimes profane, fail to evince that he subjectively intended to cause M.B. fear or harm. While civility is encouraged, and may well have achieved a better and faster result for T.E., such civility cannot be required.

In another email, T.E. stated in all capital letters that the Chief had "consistently vacuumed up any of the fucking evidence this has been gone on non-stop for me for a couple of years." M.B. described other emails as follows: "Some [email] were about a motor vehicle accident" about which M.B. had no knowledge, one email was in bold, and T.E. also sent M.B. a Facebook friend request. While annoying, these were not true threats. Nothing else about the messages, or their context, evinced that T.E. intended to cause M.B. fear or harm.

The lawsuit that T.E. filed against M.B. also is insufficient to qualify as [an act of harassment] …. While the small claims lawsuit may not have been the correct procedure for T.E. to obtain help addressing his concern that the B. family might harass or harm him, there is no evidence that T.E. willfully or maliciously filed it with the intent to cause "fear, intimidation, abuse or damage to property." Moreover, while the small claims lawsuit may have been an annoyance, there is no evidence that the lawsuit did in fact cause M.B. "intimidation, abuse, or damage to property." …

Accordingly, the … order … must be vacated[, though] {we caution that nothing herein should condone T.E.'s profanity or other aggressive behavior towards the Chief or M.B.}

The appellate court didn't discuss exactly what the harassment prevention order prohibited, but normally such orders forbid repetition of the alleged harassment, and forbid the defendant from contacting the plaintiff or going near the plaintiff.