V.J. v. N.J., 68 N.E.3d 1195

Background

Plaintiff (V.J.), an MBTA bus driver, obtained an ex parte G. L. c. 258E harassment prevention order against defendant (N.J.) on Sept. 25, 2015; after an evidentiary hearing the order was extended to Oct. 7, 2016.
Judge credited plaintiff’s testimony and found defendant had a multi-year pattern of unwanted conduct beginning in 2011, including a June 10, 2012 bear-hug from behind that plaintiff described as like an attempted abduction.
On July 1, 2012, defendant boarded plaintiff’s bus, attempted an apology, then became irate, used epithets, threatened her job, and required police to remove him.
After a roughly three-year hiatus, on Sept. 9, 2015, defendant again boarded plaintiff’s bus, refused to leave when she challenged him, told her to call the police and said he would be there daily to inconvenience her; police removed him.
The judge found defendant willfully caused plaintiff fear and intimidation, discredited defendant’s testimony (including PTSD claim), and issued a no-contact/stay-away order covering plaintiff’s home and workplace (including her bus route).

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether plaintiff proved three or more willful, malicious acts under G. L. c. 258E	The June 2012 bear hug, July 2012 verbal assault requiring police, and Sept. 2015 confrontation (threat to inconvenience daily) together satisfy the three-act requirement	Sept. 2015 incident was protected or non-threatening political/exercise-of-rights conduct and, viewed with the hiatus, does not establish three malicious acts	Affirmed: court found at least three acts when viewed as an entire course of harassment and credited plaintiff’s fear/intimidation
Whether defendant’s Sept. 9, 2015 conduct constituted a “true threat” or unprotected speech	The statement that police would have to remove him and the pledge to inconvenience her were intimidating and, in context, evinced intent to cause fear (true threat)	Words were not threats of physical harm; at most political speech or insistence on a public right and protected by the First Amendment	Held that, in context and given course of conduct, the Sept. 2015 confrontation could be a true threat/unprotected and contributed to harassment finding
Whether the judge properly credited plaintiff and weighed credibility	Plaintiff’s testimony and demeanor were credible and defendant’s testimony was not; judge observed demeanor firsthand	Defendant argued judge erred in credibility and failed to identify three discrete acts	Court upheld trial judge’s credibility determinations and factual findings as supported by record
Whether civil harassment statute can be applied without running afoul of First Amendment protections	Harassment statute excludes protected speech; unprotected categories include fighting words and true threats; plaintiff argues incidents fall within exceptions	Defendant argued incidents were protected speech or nonviolent protest (civil disobedience) and statute was improperly applied	Court applied First Amendment framework but concluded the conduct here fell within unprotected threatening/ intimidating conduct when viewed as whole course of harassment

Key Cases Cited

O'Brien v. Borowski, 461 Mass. 415 (2012) (defines statutory harassment, malicious intent, and scope of “true threat” doctrine)
A.T. v. C.R., 88 Mass. App. Ct. 532 (2015) (discusses course-of-conduct approach and that incidents may be considered together)
Petriello v. Indresano, 87 Mass. App. Ct. 438 (2015) (addresses subjective fear standard in harassment proceedings)
Seney v. Morhy, 467 Mass. 58 (2014) (holds expiration of order does not necessarily moot appeal; discusses protective purpose of statute)
Gassman v. Reason, 90 Mass. App. Ct. 1 (2016) (contrasts sufficiency of evidence where intent to cause fear was lacking)
Commonwealth v. Chou, 433 Mass. 229 (2001) (explains that ambiguous language can still be a threat depending on context)
Virginia v. Black, 538 U.S. 343 (2003) (defines “true threats” as unprotected speech)