Heard: April 11, 2018.
received and sworn to in the Berkshire County Division of the
Juvenile Court Department on January 19, 2016. A motion to
dismiss was heard by Judith A. Locke, J.
Gray Christensen, Assistant District Attorney, for the
Hennessy for the juvenile.
Present: Sullivan, Lemire, & Ditkoff, JJ.
school official obtained a delinquency complaint charging the
juvenile with, inter alia, two counts of assault and battery
based on alleged incidents of pushing a teacher and
hip-bumping the principal at his middle school. See G. L. c.
265, § 13A (a.) . Over the Commonwealth's objection,
a judge of the Juvenile Court dismissed these charges for
lack of probable cause. Concluding that the observations of
the teacher, the principal, and a school counsellor
established probable cause, we vacate the order of dismissal.
We also take this opportunity to remind school officials of
their obligation, when seeking a delinquency complaint
against a student with an individualized education program
(IEP), to make the prosecutor aware of the juvenile's
special needs in a timely manner.
December 2, 2015, the twelve year old juvenile was in the
gymnasium of his middle school at the end of a basketball
game. He refused to follow directions, started swearing at a
teacher, and left the gymnasium. The teacher followed and
asked him to come back into the gymnasium, but he refused and
ran down the hallway into the atrium. When the juvenile was
asked to go to the office, he stated that he was "not
going to the fucking office" and did not want "to
talk to any of those assholes." The teacher tried to
calm him down, but he would not calm down or stop swearing
loudly. The principal then came into the atrium and also
tried to calm him down. The juvenile was breathing heavily,
had clenched fists and puckered lips, and was visibly upset.
He also punched a cinder block wall that was behind him. The
teacher was standing in front of the doors to the hallway,
and the juvenile pushed the teacher and went through the
several minutes, other teachers left their rooms and came
into the hallway to try to calm down the juvenile. The
principal directed the first teacher to return to her
classroom. Nonetheless, the juvenile became more agitated,
punched lockers, and stated that he was going to injure
people. The principal issued a "soft lockdown,"
which required the students to stay in their classrooms and
to delay transitioning to their next classes. After about ten
minutes, the soft lockdown was removed when the group of
teachers and the principal were able to convince the juvenile
to leave the hallway and to enter the office of the
school's adjustment counsellor.
counsellor's office, the juvenile was still upset and
swearing. He stepped towards the principal in a threatening
manner and, standing face-to-face about one foot away,
repeatedly asked, "You're fucking scared of a
[twelve] year old?" The juvenile then walked to the
door, bumping the principal with the side of his body, thus
December 3, 2015, the assistant principal of the middle
school filed an application under G. L. c. 218, § 35A,
for a delinquency complaint, alleging that the juvenile
committed two counts of assault and battery (one against a
teacher and the other against the principal) and one count of
disturbing a school assembly, G. L. c. 272, § 40. The
assistant principal made no mention of the juvenile's IEP
in the application, and there is no indication that the
school otherwise made the prosecutor aware of the
juvenile's special needs.
January 19, 2016, the clerk-magistrate issued a delinquency
complaint for all three charges. The juvenile then moved to
dismiss the complaint before arraignment. On March 24, 2016,
hearing was held on the motion to dismiss. The judge
dismissed the two assault and battery charges for lack of
probable cause and arraigned the juvenile on the charge of
disturbing a school assembly. The Commonwealth appeals pursuant
to Mass. R. Crim. P. 15 (a) (1), as appearing in 422 Mass.
1501 (1996) .