V.J. v. N.J.

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15-P-1648 Appeals Court

V.J. vs. N.J.

No. 15-P-1648.

Plymouth. October 11, 2016. - January 30, 2017.

Present: Meade, Milkey, & Kinder, JJ.

Civil Harassment. Harassment Prevention. Constitutional Law,

Freedom of speech and press.

Civil 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.

MEADE, J. The 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, 2016.1 On appeal, the

1

The expiration of the harassment prevention order does not

render this case moot. See Seney v. Morhy, 467 Mass. 58, 62

(2014); Gassman v. Reason, 90 Mass. App. Ct. 1, 6-7 (2016).

2

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.

1. Background. On 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.

Beginning 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

3

one intending to "abduct somebody." The plaintiff "had to pry

his arms from around [her]." This made her "very fearful" of

the defendant.2 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.3

On July 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

2

The plaintiff was also fearful of the defendant because of

his criminal record with the MBTA police, but the appellate

record reflects no specifics about his criminal record. We note

that G. L. c. 258E, § 9, inserted by St. 2010, § 23, provides,

in pertinent part, "When considering a complaint filed under

this chapter, the court shall order a review of the records

contained within the court activity record information system

and the statewide domestic violence recordkeeping system, as

provided in chapter 188 of the acts of 1992 and maintained by

the commissioner of probation, and shall review the resulting

data to determine whether the named defendant has a civil or

criminal record involving violent crimes or abuse." It is

therefore a fair inference that the judge had an opportunity to

review the defendant's criminal record at the time of the

hearing. However, the judge made no reference to the

defendant's record in her findings, and we do not rely on his

record to support the order.

3

During the eight and one-half years the plaintiff had

worked for the MBTA, she had never had to seek a harassment

prevention order or call the police because of any other

passenger's behavior.

4

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.

On 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

5

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.

The 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 assaulting her.4

The 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."

At the conclusion of the hearing, the judge extended the

harassment prevention order to October 7, 2016, ordering the

4

The defendant also filed a claim with the Massachusetts

Commission Against Discrimination against the MBTA and the

plaintiff, which claimed discrimination based on race and

disability. That action ended with a finding of lack of

probable cause.

6

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.

2. Discussion. "In 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 O'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." O'Brien v. Borowski,

supra at 426, 427.

"In the context of a civil [harassment prevention] order,

the test is a subjective one; if all of the other elements are

7

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."

O'Brien v. Borowski, supra at 426 n.8. A.T. v. C.R., supra.

Here, 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 free.

The 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."

8

In fact, the plaintiff had to call the police to have the

defendant removed.

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 access to her

bus route and told the plaintiff that he would be there every

day to inconvenience her as she had done to him.

The defendant claims that the judge's failure to delineate

three distinct acts was error and that, in any event, the three

incidents we describe above are not sufficient for purposes of

G. L. c. 258E. We disagree. In the first incident, the

defendant physically assaulted the plaintiff in a manner that

she described as an attempted abduction. She had to pry his

arms off of her to get free. Thus, his hostile behavior not

only placed the plaintiff in fear of physical harm, but also

actually caused her physical harm. See O'Brien v. Borowski,

supra at 427.

The second act is similarly supportive of the judge's

ultimate finding. Although the defendant claimed he was

attempting to apologize for having assaulted her a few weeks

9

prior, his claimed atonement devolved into threats and venomous

name calling. See A.T. v. C.R., 88 Mass. App. Ct. at 535 (the

defendant's calling the plaintiff a "bitch" was "indicative of a

cumulative pattern of harassment"). Based on the defendant's

"irate" behavior, and the necessity of police intervention to

remove the defendant, the plaintiff expressed explicit fear for

her physical safety.

The third act presents the most questions. On this

occasion, the defendant boarded the bus and angrily confronted

the plaintiff for attempting to deny him access to the bus.

Although he did not directly threaten the plaintiff with

physical violence, he nonetheless threatened that he would

continue confronting her in this same manner, i.e., ranting

about being denied access, and that she would need continuous

police intervention to remove him from the bus. It was his

stated goal that on a daily basis he would inconvenience her as

she had him. This suffices to demonstrate the defendant's

malicious intent, characterized by cruelty, hostility, or

revenge, to intimidate the plaintiff and to place her in fear of

physical harm. See O'Brien v. Borowski, supra at 426-427. See

also A.T. v. C.R., supra at 536 ("The threat to make the

plaintiff's life a living hell clearly was intimidation").

Indeed, as in A.T. v. C.R., the defendant's stated goal of a

daily confrontation on the bus that would require the police to

10

remove him fell within the definition of "true threat" described

in O'Brien v. Borowski, supra at 424.5 See Petriello v.

Indresano, 87 Mass. App. Ct. at 446. In fact, in O'Brien v.

Borowski, supra at 425, the Supreme Judicial court explained

that the "'true threat' doctrine applies not only to direct

threats of imminent physical harm, but to words or actions that

-- taking into account the context in which they arise -- cause

the victim to fear such harm now or in the future and evince

intent on the part of the speaker or actor to cause such fear."

Furthermore, not only did the defendant expressly state his

intent to exact revenge for what had been done to him, but it is

also important that this incident not be viewed in isolation.

Rather, we must look to the defendant's entire course of conduct

to determine whether the evidence supports the judge's finding

that the defendant caused the plaintiff fear or intimidation.

5

As described in O'Brien, "A true threat does not require

'an explicit statement of an intention to harm the victim as

long as circumstances support the victim's fearful or

apprehensive response.'" O'Brien v. Borowski, supra at 424,

quoting from Commonwealth v. Chou, 433 Mass. 229, 234 (2001).

See United States v. Fulmer, 108 F.3d 1486, 1492 (1st Cir. 1997)

("The use of ambiguous language does not preclude a statement

from being a threat"). See also United States v. Malik, 16 F.3d

45, 49 (2d Cir.), cert. denied, 513 U.S. 968 (1994) ("An absence

of explicitly threatening language does not preclude the finding

of a threat"). "Nor need a true threat threaten imminent harm;

sexually explicit or aggressive language 'directed at and

received by an identified victim may be threatening,

notwithstanding the lack of evidence that the threat will be

immediately followed by actual violence or the use of physical

force.'" O'Brien v. Borowski, supra at 424, quoting from

Commonwealth v. Chou, supra at 235.

11

Viewing the third act in conjunction with the evidence of the

second act, where the defendant, during an angry and hostile

confrontation on the bus, called the plaintiff a "fat bitch" and

a "ghetto bitch," which required police intervention to remove

the defendant and caused the plaintiff to express explicit fear

for her physical safety, the judge was warranted in her implicit

conclusion that the third act also caused the plaintiff to

subjectively fear for her physical safety. See Seney v. Morhy,

467 Mass. 58, 63 (2014), quoting from O'Brien v. Borowski, supra

at 426 n.8 ("The target of the harassment must have experienced

an 'entire course of harassment,' the whole of which caused fear

or intimidation"). Given the overlapping nature of the

defendant's conduct in the second and third act, as well as the

entire course of conduct, and not viewing each act in isolation

as the dissent does, it was reasonable for the judge to infer

the existence of the plaintiff's fear of physical violence as

well as the defendant's malicious intent. Contrast Gassman v.

Reason, 90 Mass. App. Ct. 1, 9 (2016) ("[T]here simply is no

evidence that [the defendant] intended to cause any harm at all

to [the plaintiff], much less that she wilfully committed three

or more acts, aimed at [the plaintiff], each with the intent to

cause fear, intimidation, abuse, or damage to property . . . [,

and] . . . no evidence of a true threat").

12

In the end, the judge had an opportunity at the hearing to

observe both the plaintiff and the defendant, including their

demeanor. The judge particularly noted that she found the

plaintiff's testimony to be credible, but not the defendant's.

More importantly, she found not only that the defendant was

"angry" that he could not ride the bus of his choosing, but also

that his anger spilled over into the court room itself where,

the judge noted, he "was visibly angry and upset during the

course of [the] harassment order hearing." Finally, it is

important to note that this order of protection is civil in

nature, not penal. This case is not about punishing the

defendant for his behavior and actions,6 but rather, it is about

providing a limited measure of protection for the plaintiff, who

the judge found to be genuinely in fear for her physical safety.

See A.T. v. C.R., 88 Mass. App. Ct. at 540 ("This is a civil

case, interpreting a statute, G. L. c. 258E, whose purpose is

protective, not penal"). Given all that has occurred, the judge

properly determined that the plaintiff carried her burden to

demonstrate by a preponderance of the evidence that she was

entitled to an order of protection under G. L. c. 258E.

October 9, 2015, extension

order affirmed.

6

Contrary to the dissent's concern regarding acts of civil

disobedience, post at note 10, the defendant made no such claim

at the hearing, and if he had, it likely would have been

discredited as the judge did with the entirety of his testimony.

MILKEY, J. (dissenting). The defendant, N.J. (defendant),

a Gulf War veteran who suffers from posttraumatic stress

disorder, lives in Randolph. He depends on public

transportation to take him to the Veterans Affairs hospital in

the Jamaica Plain section of Boston, where he both receives

services and is employed. The plaintiff, V.J. (plaintiff), is

the driver of the Massachusetts Bay Transportation Authority

(MBTA) bus that fits the defendant's work schedule. The

plaintiff decided to ban the defendant from using her bus.

Then, based in material part on the ire the defendant expressed

for not being allowed to use the bus on which he depends for

employment and treatment, the plaintiff obtained a harassment

prevention order that served to implement her ban. Because I

believe that the evidence was insufficient as a matter of law to

support such an order, I respectfully dissent.

Background.1 According to the plaintiff, the defendant, a

regular bus rider on her route, tried to "court" her for several

months. For example, he tried to give her his phone number.

The plaintiff rebuffed such advances, and -- in response to a

question by the judge as to whether she reported the defendant's

behavior to her supervisors -- she testified, "I didn't pay any

attention to it, 'cause he's not the only gentleman that's ever

1

The factual recitations that follow are drawn from the

judge's findings, supplemented by the plaintiff's testimony,

which the judge expressly credited.

2

boarded my bus . . . who's, you know . . . tried to . . . take

me out or whatever."2 The plaintiff's attitude toward the

defendant understandably changed when, on June 10, 2012, while

she was making a purchase at a store at an MBTA station during a

break, the defendant gave her an unsolicited "bear hug" from

behind.

On July 1, 2012, the defendant came to the front of the

plaintiff's bus to apologize for the earlier incident. The

plaintiff refused to accept this apology and told the defendant

to stop speaking to her. At that point, the defendant "began to

verbally assault" the plaintiff, referring to her, for example,

as a "ghetto bitch." According to the plaintiff's testimony,

the defendant threatened her job, but he did not threaten

physical harm or "make any threatening gestures." She

nevertheless was afraid for her physical safety because he was

"irate." She also testified that based on the defendant's

"go[ing] on these rants and say[ing] these out-of-control things

that are just untrue," she did not consider him to be "of sound

mind." The July 1, 2012, incident ended with the plaintiff

having the police remove the defendant from the bus.

2

The judge found that the defendant's advances caused the

plaintiff to "feel uncomfortable," a statement that the majority

repeats. See ante at . Although one can imagine that this

could have been the case, there was not actually any testimony

to that effect. To the contrary, the plaintiff's own comments

indicate that she was little bothered by the defendant's trying

to "court" her.

3

According to the testimony adduced at the evidentiary

hearing, the next three years passed without incident. The

plaintiff occasionally would spot the defendant at the bus stop,

but she testified that "[h]e didn't even attempt to get on once

he saw who was behind the wheel." During these passing

encounters, the defendant did not make any sort of threat to the

plaintiff. Although the record is less than clear about the

details, it reflects that both parties understood that the

plaintiff effectively had banned the defendant from riding her

bus,3 and that, representing himself, the defendant brought two

unsuccessful cases against the MBTA seeking to challenge that

practice (one in the Massachusetts Commission Against

Discrimination and one in Superior Court). The record also

reflects that the plaintiff was for a time assigned to a

different bus route, obviating the need for any interactions

between the two. However, she eventually was returned to the

original route.

On September 9, 2015 -- that is, after a thirty-eight month

hiatus -- the defendant decided to board the bus even though the

plaintiff was driving it. As the plaintiff herself

acknowledged, he did not make any threats to her at this time.

When she challenged his boarding the bus, he told her to call

3

The plaintiff herself referred to "three years of me

denying him access to my bus."

4

the police. She did so, and the police removed him -- in the

plaintiff's words -- "because I wanted him removed." The

plaintiff's testimony also referenced an undated subsequent

incident in which the defendant stood outside the bus doors and

"kept going on and on and on" until the police arrived.

On September 25, 2015, the plaintiff filed a complaint for

protection from harassment pursuant to G. L. c. 258E, § 3, along

with an affidavit summarizing three alleged incidents of

harassment. These were the June 10, 2012, "bear hug" incident;

the July 1, 2012, incident in which the defendant tried to

apologize and then became irate; and the September 9, 2015,

incident in which the plaintiff had the police remove him from

the bus.4 When the judge asked her to explain what caused her to

seek the order, the plaintiff testified:

"He's just so aggressive. If he could just, could have

come to me like a normal person would, without the

temperament, I, I, perhaps I might have, but he's just so

aggressive with the 'Call the police' and it's just -- it's

crazy. It's just kind of crazy."

She then stated that she was in fear of physical harm from the

defendant and that such fear was "based on the things I know

4

In her affidavit submitted with that application, but not

in her testimony, the plaintiff stated that before the police

removed the defendant, he went "on a rant about how I can't

continue to do this and that he would be there every day to

inconvenience me like I have him."

5

that are in his criminal record."5 No evidence was admitted as

to the defendant's criminal record, if any.6

Discussion. A harassment protection "order can be sought

by anyone 'suffering from harassment.'" F.A.P. v. J.E.S., 87

Mass. App. Ct. 595, 598 (2015), quoting from G. L. c. 258E, § 3.

"To establish harassment, a complainant must prove that the

defendant, motivated by cruelty, hostility, or revenge, wilfully

committed three or more acts aimed at a specific person, each

with the intent to cause that person to experience fear or

intimidation, or to cause abuse or damage to property, which,

considered together, did in fact cause fear, intimidation,

abuse, or damage to property." O'Brien v. Borowski, 461 Mass.

415, 426 (2012).7

5

At an earlier point in the evidentiary hearing, the

plaintiff mentioned the bear hug without offering that she was

frightened by it. The judge then sought to elicit from her that

it was the bear hug that placed her in fear. The plaintiff

responded: "That, and based on his record with the MBTA Transit

Police, yes, I am very fearful."

6

The majority accurately points out that in harassment

actions, judges are directed to review a defendant's criminal

record. See ante at note 3. However, nothing before us

indicates that the judge did so here, or what that record, if

any, showed. Therefore, we cannot rely on the defendant's

criminal record (if any) in determining whether the evidence was

sufficient to support the issuance of the harassment order.

7

Under the statute, there is a "second definition of

'harassment' [that] applies to situations where . . . a

defendant allegedly committed one or more acts of sexual

misconduct." F.A.P. v. J.E.S., 87 Mass. App. Ct. at 599, citing

G. L. c. 258E, § 1 (definition of "Harassment," subsection

6

The harassment statute does not apply to speech protected

by the First Amendment to the United States Constitution. Id.

at 421-428. This means that speech cannot qualify as

"harassment" unless it is exempted from protection under the

First Amendment because it rises to the level of "fighting

words" or "true threats." Ibid. "Fighting words" are "limited

to words that are likely to provoke a fight: face-to-face

personal insults that are so personally abusive that they are

plainly likely to provoke a violent reaction and cause a breach

of the peace." Id. at 423, citing Cohen v. California, 403 U.S.

15, 20 (1971). "'True threats' encompass those statements where

the speaker means to communicate a serious expression of an

intent to commit an act of unlawful violence to a particular

individual or group of individuals." Virginia v. Black, 538

U.S. 343, 359 (2003).

For purposes of my analysis, I assume arguendo that the

judge reasonably could have found that the June, 2012, bear hug

incident and the July, 2012, failed apology incident each

qualified as an act of harassment under the statute.8 That

[ii]). Had the plaintiff demonstrated that the bear hug

amounted to an indecent assault and battery, she could have

sought a harassment prevention order on that basis alone. The

plaintiff did not press the case on this basis, nor did the

judge consider this alternative theory.

8

In fact, it is not clear that the June and July incidents

qualify as acts of harassment. For example, although the judge

7

leaves the question whether the third incident on which the

plaintiff relies, the September 9, 2015, incident, also so

qualifies.9 Neither the judge's findings nor the testimony

indicates what the defendant actually said during the incident

other than to insist that the plaintiff call the police.

Nothing suggests that the defendant said anything at the time

that comes close to "fighting words" or "true threats."

Contrast Commonwealth v. Bigelow, 475 Mass. 554, 567-570 (2016)

(fact finder reasonably could find that certain unsettling

letters anonymously sent to wife of public official at her home

rose to the level of "true threats").

The majority discerns a threat of violence in the

defendant's insistence that the plaintiff contact the police,

stating that "[w]hen 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

expressly rejected the defendant's portrayal of the ill-

conceived bear hug as an effort to "comfort" the plaintiff (as

he would do with someone at his church), it does not follow that

the bear hug therefore was motivated by "cruelty, hostility, or

revenge" (as opposed to, say, a misplaced attempt at

familiarity). The judge found only that the defendant's actions

were "willful"; she made no finding as to the defendant's

intent.

9

As noted, there was evidence of a fourth incident in the

weeks prior to the evidentiary hearing in which the defendant

voiced his right to board the bus but was taken away by police

before he boarded it. This conduct fails to qualify as an act

of harassment for the same reasons, discussed below, that the

more intrusive conduct of September 9, 2015, fails to qualify.

8

for him to leave the bus." Ante at . Assuming arguendo that

the defendant's statement to "call the police" can be taken as a

suggestion that the police might have to use force to remove him

from the public bus, this cannot reasonably be taken as an

implied threat of violence against the plaintiff.10 Moreover,

the majority draws this inference even though the plaintiff

herself expressly disclaimed that the defendant made any threat

to her during the September 9, 2015, incident. Specifically,

when the judge asked her directly, "[D]id he make a threat to

you at that time?" the plaintiff replied, "He did not."11

The majority also relies on the plaintiff's statement in

her affidavit that the defendant had said that "he would be

there every day to inconvenience me like I have him." That

statement does not supply the necessary element of threatened

violence either. Indeed, according to the plaintiff's own

words, what the defendant was threatening was inconvenience

comparable to that which she had caused him (further

undercutting any suggestion that he had threatened physical

harm).

10

Drawing such an inference also has disturbing

ramifications for civil society (treating, as it does, a

venerable form of peaceful protest as threatened violence).

11

A moment later the judge asked, "[H]e again didn't make

any -- say anything to you that was a direct threat to your

physical well-being, did he?" Again, the plaintiff said, "No."

9

Furthermore, as a matter of law, a stated intent to cause

mere inconvenience cannot rise to the level of "a serious

expression of an intent to commit an act of unlawful violence to

a particular individual." Virginia v. Black, 538 U.S. at 359

(defining the "true threat" category of unprotected speech).

See O'Brien v. Borowski, 461 Mass. at 427 (plaintiff in a

harassment case must prove that defendant intended to cause

"fear of physical harm or fear of physical damage to property").

By recognizing threatened inconvenience as a true threat, lying

outside the protection of the First Amendment, we are diluting

what is properly a narrow and carefully defined class of

unprotected speech.

In fact, far from lying at the periphery of free speech,

the defendant's words can be understood as decrying perceived

abuses by a public official and hence as a form of "political

speech" situated at the core of the First Amendment's

protection. See Van Liew v. Stansfield, 474 Mass. 31, 38

(2016), citing McIntyre v. Ohio Elections Commn., 514 U.S. 334,

346 (1995) (public accusations that local planning board member

"was 'corrupt and a liar'" could not qualify as "incidents of

harassment" where they "constituted political speech and were at

the core of the speech that the First Amendment . . .

protects"). As the Supreme Court has emphasized, "Speech is

often provocative and challenging," and it does not lose its

10

First Amendment protection simply because it may cause "public

inconvenience, annoyance, or unrest." Houston v. Hill, 482 U.S.

451, 461 (1987) (quotation omitted). See id. at 457-458

(aggressive verbal challenges to police officers held to be

protected speech).

Of course, the defendant's conduct during the September 9,

2015, incident also included nonverbal actions. Those actions

consisted of the defendant's boarding the bus against the

plaintiff's wishes and refusing to leave until the police came.

In light of the plaintiff's refusal to operate the bus with him

on it, this had the effect of disrupting the bus trip. Again,

however, any desire on the part of the defendant to cause the

plaintiff or others inconvenience does not qualify as

harassment. See O'Brien v. Borowski, 461 Mass. at 427.

To be sure, the judge disbelieved the defendant's claim to

be a calm individual, and she found that he "is clearly angry

and upset that he cannot ride the bus he chooses to work."

However, she did not find, nor did the plaintiff even argue,

that the defendant's conduct on September 9, 2015, was motivated

by anything other than his desire to be allowed once again to

ride the public bus.12 In this context, however loud or

12

The judge found that the defendant's conduct was wilful

and that it caused the plaintiff to be fearful, but she made no

findings that the defendant's conduct was "malicious" or that he

intended to place the plaintiff in fear for her physical safety.

11

insistent his protests may have been,13 the defendant's conduct

cannot reasonably be said to have been motivated by "cruelty,

hostility, or revenge." As a matter of law, the September 9,

2015, incident simply does not qualify as an act of harassment,

and the plaintiff therefore has not shown the three acts

necessary for obtaining a harassment prevention order.14

None of this is to say that in her role as an MBTA official

entrusted to keep the public safe, the plaintiff lacked the

authority to exclude the defendant from her bus. Whether she

possessed, and properly exercised, such authority is not before

us, and I express no view on it. The question instead is

whether, under the circumstances of this case, a harassment

prevention order pursuant to G. L. c. 258E provided a proper

vehicle for the plaintiff to accomplish that end. Because, in

my view, it plainly did not, I respectfully dissent.

13

In point of fact, the record includes virtually nothing

about the tone and volume that the defendant used during the

September 9, 2015, incident.

14

The majority correctly points out that, in assessing

whether conduct in fact caused fear or intimidation, we should

not view incidents in isolation. See ante at . Instead, "It

is 'the entire course of harassment, rather than each individual

act, that must cause fear or intimidation.'" A.T. v. C.R., 88

Mass. App. Ct. 532, 541 (2015) (Blake, J., dissenting), quoting

from O'Brien v. Borowski, supra at 426 n.8. But the fact that,

more than three years earlier, the defendant had given the

plaintiff an unwanted bear hug in public and called her terrible

names after his attempt to apologize failed, does nothing to

alter the essential nature of the September 9, 2015, incident as

one in which the defendant merely was insisting that he had a

right to ride the bus.