Heard: October 11, 2016.
Harassment. Harassment Prevention. Constitutional Law,
Freedom of speech and press.
action commenced in the Brockton Division of the District
Court Department on September 25, 2015. The case was heard by
Julie J. Bernard, J.
Michael P. Friedman for the defendant.
Present: Meade, Milkey, & Kinder, JJ.
defendant, N.J. (defendant), appeals from the extension of a
G. L. c. 258E civil harassment prevention order, which
prohibited any contact between him and the plaintiff,
V.J. (plaintiff). The parties are not related. The
order at issue expired on October 7, 2016. On appeal, the
defendant claims that the judge did not find, and could not
properly have found, that there were at least three separate
incidents by which he intentionally placed the plaintiff in
fear, intimidated her, or otherwise abused her. We affirm.
September 25, 2015, pursuant to G. L. c. 258E, §§ 3
and 5, the plaintiff obtained an ex parte harassment
prevention order against the defendant. The order was set to
expire on October 9, 2015, and a hearing was set down for
that date regarding an extension of the order. After an
evidentiary hearing at which both parties testified, a judge
of the Brockton Division of the District Court Department
extended the harassment prevention order to October 7, 2016,
and found the following facts, which are supplemented by the
plaintiff's affidavit in support of the harassment
prevention order and her testimony, which the judge
explicitly found to be credible.
in 2011, the defendant, a passenger on a Massachusetts Bay
Transportation Authority (MBTA) bus operated by the
plaintiff, made numerous attempts to "court" her;
all were rebuffed. These attempts made her feel uncomfortable
and she feared the defendant. The plaintiff identified a
pattern of harassment between 2012 and 2015, including an
incident occurring on June 10, 2012, while she was on a break
at an MBTA station, in which the defendant approached her
from behind and grabbed her across her chest in a "bear
hug, " in the manner of one intending to "abduct
somebody." The plaintiff "had to pry his arms from
around [her]." This made her "very fearful" of
the defendant. Although she did not file a police report,
the plaintiff did report the incident to her supervisor at
the MBTA, as she was in full uniform on MBTA property when
the incident took place.
1, 2012, the defendant boarded the bus the plaintiff was
driving. Soon after the bus departed, the defendant attempted
to apologize for having grabbed her on June 10, 2012. She did
not accept his apology and told the defendant that if he had
to ride on her bus route, he should just pay his fare and not
communicate with her. Upon hearing this, the defendant
"went off" and "verbally assault[ed]" the
plaintiff in a rant, saying "out-of-control
things." The defendant called her a "fat
bitch" and a "ghetto bitch, " and he
threatened her job. Although she did not fear for her job,
she was afraid for her physical safety because he "was
irate." The plaintiff had to call the police to have the
defendant removed. As a result of her fear of the defendant
from his physical assault, the plaintiff began denying him
access to the MBTA bus she operated.
September 9, 2015, after a hiatus of some three years during
which the defendant did not ride the plaintiff's bus
(either because she was assigned to a different route, or he
simply did not attempt to board), the defendant again boarded
the plaintiff's bus and became angry at her for
attempting to deny him access to the bus. Although he made no
direct threat of physical violence, the defendant told the
plaintiff to call the police in order to remove him from the
bus, which she did. The police removed him from the bus, but
not before he went on a rant about the impropriety of his
being denied access to her bus route and telling her that he
would be there every day to inconvenience her as she had done
to him. The dissent describes this incident as
"political speech, " i.e., a protest against the
authority of the MBTA. See post at . We disagree.
When the defendant told the plaintiff that the police would
have to remove him, his speech became a physical threat,
implying as it did that physical force would be required for
him to leave the bus. At that point, it is fair to conclude
that his intent was to frighten and intimidate her, and she
was, in fact, frightened.
defendant testified that he is a disabled veteran who suffers
from posttraumatic stress disorder, and relies on the
plaintiff's bus route to get to and from the
Veteran's Administration hospital (V.A.), where
he both works and receives services. As a result of being
denied access to her bus, the defendant had difficulty
getting to the V.A. He denied any romantic interest
in the plaintiff, and denied making any threats or physically
judge expressly found the defendant's testimony not
credible. She found that he was angry and upset that he could
not ride his chosen bus route. The judge determined his
actions toward the plaintiff were wilful, and caused her to
be in fear and to suffer intimidation. The judge further
observed that the defendant was "visibly angry and upset
during the course of th[e] harassment order hearing."
conclusion of the hearing, the judge extended the harassment
prevention order to October 7, 2016, ordering the defendant
not to abuse or contact the plaintiff, and to stay away from
both her home and work. This included the MBTA bus operated
by the plaintiff. The defendant timely noticed an appeal.
reviewing a civil harassment order under G. L. c. 258E, we
consider whether the judge could find, by a preponderance of
the evidence, together with all permissible inferences, that
the defendant committed '[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,
'Harassment, ' inserted by St. 2010, § 23. See
0'Brien v. Borowski, 461 Mass.
415, 419-420 (2012)." A.T. v.
C.R., 88 Mass.App.Ct. 532, 535 (2015). It is the
plaintiff's burden to prove that each of the three
qualifying acts was maliciously intended, defined by G. L. c.
258E, § 1, as being "characterized by cruelty,
hostility or revenge, " and, as pertinent here, that
each act was intended by the defendant to intimidate the
plaintiff or place the plaintiff in "fear of physical
harm or fear of physical damage to property."
0'Brien v. Borowski,
supra at 426, 427.
the context of a civil [harassment prevention] order, the
test is a subjective one; if all of the other elements are
present, it is sufficient to show that the harassment
actually caused fear, intimidation, or abuse to the
plaintiff, even if a reasonable person in the plaintiff's
situation would not have been so affected."
Petriello v. Indresano, 87
Mass.App.Ct. 438, 444-445 (2015). 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."
0'Brien v. Borowski,
supra at 426 n.8. A.T. v. C,
although the judge did not delineate three acts of
harassment, she did find that the plaintiff continued to
suffer harassment from the defendant "well in excess of
three (3) times over the past several years." This
finding is amply supported by the record. The first act
occurred on June 10, 2012, when the defendant grabbed her
from behind in a bear hug across her chest, as if he intended
to "abduct" her. She had to pry his arms off to get
second act occurred on July 1, 2012, when the defendant
boarded the plaintiff's bus and attempted to apologize
for having grabbed her on June 10, 2012. When the plaintiff
refused his apology and requested that he not speak to her,
the defendant called her a "fat bitch" and a
"ghetto bitch, " and he threatened her job.
Although she was not concerned for her job, she was afraid
for her physical safety because he "was irate." In
fact, the plaintiff had to call the police to have the
third act occurred on September 9, 2015, when the defendant
again boarded the plaintiff's bus, and became angry at
her for attempting to deny him access to the bus. Although he
did not directly threaten the plaintiff with physical
violence, he did tell her that she would need the police to
have him removed from the bus. When the police did remove the
defendant from the bus, he began ranting about being denied