Legal Battle: When Does A Phone Call Turn Into A Threat?

Appellate Court weighs mail carrier’s comments about Goleta,California shooting

Connecticut Law Tribune :

In January 2006, a woman named Jennifer San Marco shot and killed seven people at a mail sorting plant where she used to work near Santa Barbara, Calif.

It goes without saying that the attack was fresh in the minds of U.S. postal workers nationwide the following week. When a former Norwich postal worker mentioned it on the phone to a fellow post office employee, it immediately raised a red flag.

“I could do that, too” Diana Moulton told Deborah Magnant, who worked at the Salem Turnpike post office in Norwich.

The comment has launched an interesting legal discussion about what, exactly, constitutes a threat in these security conscious times. It also launched a court case that reached the state Appellate Court and still may not yet be settled.

From the court case:

On February 4, 2006, the defendant placed a telephone call to the Salem Turnpike post office in Norwich. The defendant, a letter carrier, working out of the Salem Turnpike branch, was on leave from her job at that time. Deborah Magnant, the branch’s supervisor of customer service, answered the telephone. Magnant recognized the caller’s voice, and the caller identified herself as the defendant. Magnant testified that she had spoken with the caller over the telephone at least two other times over the previous four to five weeks and recognized the voice to be that of the defendant but had never met her. The defendant asked to speak to David Ravenelle, the postmaster, but Magnant told her that he was not working that day. The defendant then asked to whom she was speaking, and Magnant identified herself. The defendant said: “Oh, I know you. I have talked to you before.”

At that point, the defendant started talking about when she would be returning to work, “[a]nd then she said something about the shootings.” Specifically, she said: “[T]he shootings, you know, the shootings in California. I know why she did that. They are doing the same thing to me that they did to her, and I could do that, too.” The defendant was referring to an incident that took place approximately five days prior when a postal employee in California shot and killed several postal workers inside the postal facility where she worked.

Magnant testified that the defendant’s tone of voice was angry and agitated and that the statement about the shootings caused her alarm, so she began taking notes of the conversation. Magnant stated that the defendant continued to talk, “just sharing whatever was on her mind.” She discussed her post-traumatic stress disorder and when she would be returning to work. She also asked for her union steward. The defendant seemed to be upset that she was out of work and talked about how her direct supervisor and the prior postmaster harassed and bullied her and how her supervisor was incompetent. The defendant also mentioned other postal employees by name. The call ended after the defendant told Magnant that she would be calling back on Monday, when she could speak to Ravenelle, and Magnant assured her that she would make sure that Ravenelle knew she would be calling.

Magnant notified Ravenelle about the telephone call as soon as he arrived at work Monday morning, at approximately 6 a.m. Ravenelle contacted his supervisors and the postal inspection service, which acts as an internal police force for the postal service. Magnant spoke with postal inspectors that morning, who asked for her notes of the conversation and instructed her to call the local police. She contacted the police and filed an official report at that point.

The defendant was arrested and charged with breach of the peace in the second degree in violation of § 53a-181 (a) (3)[ 1 ] and harassment in the second degree in violation of § 53a-183 (a) (3).[ 2 ] A trial was held on December 5, 2007, and the jury returned a verdict of guilty on both counts on that date. On January 29, 2008, the defendant was sentenced to six months incarceration, execution suspended, and two years probation on the breach of the peace charge; ninety days incarceration, execution suspended, and one year probation on the harassment charge, to be served consecutively.

Senior Assistant State’s Attorney Mitchell Brody said he would ask the state Supreme Court to take a look at the case. Brody maintains that the statute covers not only the act of making the call, but also thoughts expressed during the calls. “I think this case is less about the First Amendment and more about how the [harassment and breach of peace] statutes operate and the evidence of whether this is a true threat,” he said.

Prior case law in Connecticut defines a true threat as communication that would be viewed by a reasonable person “as a serious expression of an intent to harm or assault, and not as mere puffery, bluster, jest or hyperbole.”

Robinson said the trial judge gave an incomplete breach of peace instruction that failed to define a true threat. He said that misled jurors, and it was entirely possible they could have found Moulton’s comments to be “mere banter, jest or exaggeration.”

But, in deciding not to dismiss the breach of peace charge, Robinson said it also is entirely possible a jury could ultimately interpret Moulton’s statement as a true threat and thus punishable as speech unprotected by the First Amendment.

If the case is not taken up by the state Supreme Court, it will go back to trial on the breach of peace charge. “[The decision] doesn’t expand what is a threat and what is not a threat,” said Jacob, the public defender. “Right now, the way it stands, it’s unclear.”

Appellate Court of Connecticut: State v. Diana L. Moulton