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Free Speech

Objective vs. Subjective Inquiry in Restraining Order Based on Divorcing Spouse's Allegedly Threatening Speech

Clearly hostile, but was it threatening?


K.D. v D.D., officially released today by the Appellate Court of Connecticut, in an opinion by Judge Douglas Lavine, joined by Chief Judge William Bright and then-Judge Joan Alexander, involved a restraining order obtained by a divorcing wife against her husband:

[The plaintiff wife] testified that on the evening of June 24, 2021, she went to a restaurant with a group of others, including friends of the defendant. The plaintiff "felt [the defendant] behind [her] shoulder," and noticed that "the hairs on the back of [her] neck stood up." In her testimony, the plaintiff described her encounter with the defendant at the restaurant as follows: "I saw him approaching the hostess stand very physically tense. He stared at me with his furrowed brow twitching and locked eye contact for, what, I mean, twenty-five seconds and I was frozen. He seemed very agitated in his physical movements."

She further testified that during the incident the defendant's shoulders were "very high" and that he was "leaning in aggressively with his hands clenched and tight and it seemed like he was breathing very heavy." She explained that the defendant then moved away from the hostess desk "in a wide circle behind [her] slowly." She stated that she was "in shock." The defendant testified that he went to the restaurant in response to an invitation from a friend, but when the plaintiff arrived he became "very uncomfortable" and did not "feel safe" and, therefore, walked from the hostess stand area to the lobby where he waited for an Uber….

The plaintiff testified that, after the defendant left the restaurant, he communicated with her electronically and she detailed that while she was still at the restaurant, she received a text message from the defendant at 8:33 p.m., stating: "Enjoy your date!" She further testified that the defendant sent her a series of emails on the night of June 25 and in the early morning of June 26, 2021.

The first email stated: "You have 'fucked' all these 'dinner guests' while making me watch and abusing me. I will show you. Is that (unsafe) for those you have violated? Let me know when I should divulge your penchant for underage people."  In a subsequent email, the defendant stated, "by underage, I meant legally permissible but young." In another email, the defendant explained that it was "unexpected" that the plaintiff would be at the restaurant and that, "upon seeing you, I left immediately. I hope to never accidentally run into you again." The final email in exhibit 1 concerned childcare issues.

In an oral ruling issued at the conclusion of the July 6, 2021 hearing, the court granted the plaintiff's application for a civil restraining order. The court stated that the plaintiff's testimony "indicated a tone of hostility which the plaintiff felt frightened her. The defendant, the husband, says no hostility, he left and took an Uber. He did indicate he left because he did not feel comfortable to be in the same space as she was. He did not let it end there, however, as he sent the messages in exhibit 1. The wife, the applicant, testified at the restaurant that he stared at her, made eye contact for twenty-five seconds, leaned in aggressively making eye contact, and furrowing his brow, and he was breathing heavily and he was fussing as he walked behind her.

"The court finds that the plaintiff['s] exhibit 1, substantiates the conditions at the restaurant. If all he wanted to do was leave, he could have done so, but he extended the evening with the [plaintiff] in exhibit 1. In exhibit 1 it says, [enjoy] your date and the use of the F word and the reference to others involved leads this court to the conclusion that the testimony of the wife, the applicant, is more credible. The court finds the conduct of the [defendant] creates a pattern of threatening." …

The Appellate Court concluded, though, that the trial court wrongly "viewed the evidence through the lens of the plaintiff's subjective reaction to the defendant's conduct, namely, her resulting fear, and stated that the plaintiff's testimony 'indicated a tone of hostility which the plaintiff felt frightened her.'" Instead, "[a]lthough the reaction of an applicant can help provide context," the court should have looked at whether "it is objectively reasonable to conclude, based on context, that the defendant had subjected the alleged victim to a pattern of threatening"; the appellate court therefore ordered the trial court to vacate the restraining order.

Congratulations to Reuben S. Midler, who successfully represented the defendant.