16-242
Heller v. Bedford Central Sch. Dist., et. al.
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
SUMMARY ORDER
RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER FILED
ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE
PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A
DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN
ELECTRONIC DATABASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING A SUMMARY ORDER MUST
SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.
1 At a stated term of the United States Court of Appeals
2 for the Second Circuit, held at the Thurgood Marshall United
3 States Courthouse, 40 Foley Square, in the City of New York,
4 on the 4th day of November, two thousand sixteen.
5
6 PRESENT: DENNIS JACOBS,
7 DEBRA A. LIVINGSTON,
8 Circuit Judges,
9 JED S. RAKOFF,*
10 District Judge.
11
12 - - - - - - - - - - - - - - - - - - - -X
13 ADAM B. HELLER,
14 Plaintiff-Appellant,
15
16 -v.- 16-242
17
18 BEDFORD CENTRAL SCHOOL DISTRICT; DR.
19 JERE HOCHMAN; TOWN OF POUND RIDGE;
20 DAVID RYAN; WESTCHESTER MEDICAL
21 CENTER; SUSAN KEMKER, M.D.,
22 Defendants-Appellees,
23
*
The Honorable Jed S. Rakoff, of the United States
District Court for the Southern District of New York,
sitting by designation.
1
1 ALEXANDER LERMAN, M.D.,
2 Defendant.
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4
5 FOR APPELLANT: MICHAEL H. SUSSMAN, Sussman &
6 Watkins, Goshen, New York.
7
8 FOR APPELLEES TOWN OF POUND RIDGE and DAVID RYAN:
9 STEVEN C. STERN, Sokoloff Stern
10 LLP, Carle Place, New York.
11
12 FOR APPELLEES BEDFORD CENTRAL SCHOOL DISTRICT and DR. JERE
13 HOCHMAN: RICHARD G. KASS, Bond, Schoeneck
14 & King, PLLC, New York, New
15 York.
16
17 Appeal from a judgment of the United States District
18 Court for the Southern District of New York (Forrest, J.).
19 UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED
20 AND DECREED that the judgment of the district court be
21 AFFIRMED.
22 Adam B. Heller appeals from the judgment of the United
23 States District Court for the Southern District of New York
24 (Forrest, J.) dismissing under Rule 12(b)(6) his various §
25 1983 claims. We assume the parties’ familiarity with the
26 underlying facts, the procedural history, and the issues
27 presented for review. We affirm on the grounds that
28 Heller’s communications presented a substantial risk of
29 disruption that, as a matter of law, justified the school
30 district’s actions; that there was probable cause for
31 Heller’s arrest and detention; that his brief commitment to
2
1 a mental institution did not shock the conscience such that
2 it violated substantive due process; and that his Second
3 Amendment challenge is baseless given that commitment.
4 Heller is a former public school teacher. In December
5 2012 and January 2013, he purchased two firearms, received a
6 third from a friend, and was shopping for a fourth. At the
7 same time, he had a month-long online conversation with
8 Georgia O’Connor via the online game Words with Friends.
9 During the course of that conversation, Heller told O’Connor
10 that he believed aliens controlled the government; that the
11 Sandy Hook school shooting (which had recently happened) was
12 fake; and that he “want[s] to kill people.” The FBI received
13 an anonymous tip about Heller in January and began
14 monitoring his online communications. They coordinated with
15 the local police department, which stopped Heller on January
16 18 as he drove home from a gun store.
17 The police induced Heller to go to a local hospital
18 where he was psychiatrically committed and later released.
19 The school district at which he worked then brought
20 disciplinary charges stating that Heller should be dismissed
21 from his teaching job because he failed to cooperate with an
22 investigation into his mental health and because he was
23 incompetent to work as a teacher due to mental illness.
24 After an eight-day hearing, a hearing officer sustained all
3
1 charges against Heller and praised the Pound Ridge police
2 department, the Bedford Central School District, and the
3 Westchester Medical Center for their roles.
4 Heller sued the school district, the school
5 superintendent, the town of Pound Ridge, Pound Ridge’s chief
6 of police, the medical center, and several of the
7 psychiatrists who examined him. He now appeals from
8 dismissal of his § 1983 claims which alleged: 1) retaliation
9 based on views he expressed in his online chat with
10 O’Connor; 2) unlawful search and detention; 3) violation of
11 substantive due process rights; and 4) violation of his
12 right to bear arms.
13 Heller’s online conversations and the record of his
14 dismissal hearing are both integral to and incorporated by
15 reference in his complaint. Roth v. Jennings, 489 F.3d 499,
16 509 (2d Cir. 2007). All parties cite these records
17 extensively and none object to their consideration on
18 appeal.
19 The District Court properly dismissed Heller’s
20 retaliation claims. At the start, Heller’s statements,
21 assuming arguendo that they relate to a matter of public
22 concern, were of such a character that “the disruption they
23 cause[d]” or threatened was “great enough to warrant the
24 school’s action against him.” Melzer v. Bd. of Educ. of
4
1 City Sch. Dist. of City of New York, 336 F.3d 185, 198 (2d
2 Cir. 2003). Indeed, although we need not reach the question
3 whether these statements constitute a “true threat,” their
4 threatening quality is highly relevant to the Pickering
5 balance. See Melzer, 336 F.3d at 198 (referencing the
6 balancing test outlined in Pickering v. Bd. of Educ., 391
7 U.S. 563 (1968)).1
8 In his online chats with O’Connor, Heller said that he
9 was “stewing in anger . . . and want[s] to kill people . . .
10 because the people who are behind [government weather
11 control] are evil.” O’Connor asked “what people do you
12 think deserve to die for the sins of an evil government,”
13 and Heller responded, “oh I don’t know. but I could probably
14 do some research and hand you a list . . . #1. Someone
15 should just shoot down one of the planes.” O’Connor said,
16 “you are scaring me,” and asked him to “just promise me you
17 arent going to kill anybody.” Heller responded “yea I
18 promise.” O’Connor brought up the “list” in a subsequent
1
The test for whether a communication is a true threat
is objective, and the determination is a question of law.
United States v. Francis, 164 F.3d 120, 123 at n.4 (2d Cir.
1999); United States v. Turner, 720 F.3d 411, 420 (2d Cir.
2013). The inquiry is “whether an ordinary, reasonable
recipient who is familiar with the context of the
communication would interpret it as a threat of injury.”
Id. (quoting United States v. Davila, 461 F.3d 298, 305 (2d
Cir. 2006)). A statement can be a true threat even if the
speaker has no intention of carrying it out. Id.
5
1 conversation, and Heller said, “there are a lot of people in
2 this country who have done seriously evill things to the
3 masses. one day, someone is going to make a list and go
4 about the task of removing them from power. That will be in
5 the middle of a civil war in America.”
6 Context is crucial to identification of a true threat.
7 Turner, 720 F.3d at 420. The context here bespeaks danger.
8 • Heller was delusional. He believed that the military
9 controlled the weather and had deliberately caused
10 Hurricane Sandy, the Haitian earthquake, and the
11 Fukushima nuclear disaster.
12 • He believed that space aliens controlled the
13 government, that the government was capable of mind
14 control, and that he was working on “deprogramming
15 himself” from that government mind control.
16 • He was a public school teacher who came into contact
17 with 125-150 students each semester.
18 • He believed that the Sandy Hook elementary school
19 killing of 26 people had been faked; he appeared to
20 have researched the shooting; and he made his
21 threatening statements within a few weeks of it.
22 • He seemed to be angry, depressed, and generally
23 emotionally “worked up.”
6
1 • And–-with no prior history of interest in guns or gun
2 ownership–-he purchased two guns, received a third from
3 a friend, and considered purchasing a fourth, all in a
4 brief period.
5 Although we need not decide whether Heller’s
6 statements constituted a true threat to determine whether
7 the Pickering balance has been satisfied, as a matter of
8 law, the record is clear that “an ordinary, reasonable
9 recipient who is familiar with the context of the
10 communication” could well have viewed Heller’s
11 communications as “a threat of injury.” Turner, 720 F.3d at
12 420. O’Connor herself seems to have interpreted them as
13 legitimate threats. United States v. Malik, 16 F.3d 45, 49
14 (2d Cir. 1994) (“In making this determination, proof of the
15 effect of the alleged threat upon the addressee is highly
16 relevant.”).
17 Heller argues that his statements were “off-the-cuff
18 political hyperbole written in the context of friendly
19 social media banter,” and that he ended the conversation
20 with “humor.” However, his statements appear to be in
21 earnest, and O’Connor so interpreted them. He identified
22 airplanes as targets and said that people in government
23 deserved to die; and his conduct raised prudent concern
24 about the risk of a school shooting. See Turner, 720 F.3d
7
1 at 424 (rejecting the argument that “only communications
2 that facially threaten unequivocal, unconditional,
3 immediate, and specific injury” are “true threats”). In
4 such circumstances, the school’s concern about the safety of
5 its students and the potential for “severe . . . disruption”
6 to its functioning justified its actions. See Melzer, 336
7 F.3d at 198, 199 (stating that such factors “may outweigh a
8 public employee’s rights”).
9 Heller has also failed to plausibly allege that the
10 defendants were motivated by a desire to retaliate against
11 Heller for his views. A review of the record confirms that
12 the defendants were interested in Heller’s communications
13 only insofar as they raised the prospect of a shooting spree
14 at the high school. The school district did not immediately
15 bring charges after it learned of Heller’s speech. Instead,
16 school officials worked with law enforcement to monitor the
17 situation at the high school. Next, the district ordered an
18 independent psychological evaluation of Heller. Only after
19 the evaluation process was complete did the district bring
20 charges against Heller. Moreover, the charges were not
21 based on his speech but rather (a) his unwillingness to
22 cooperate with the evaluation and (b) the possibility that
23 he might be mentally unfit to teach. As the claim of
8
1 retaliation is not plausible on its face, it must be
2 dismissed. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).
3 Heller’s other First Amendment claim is that he
4 intended his gun purchases as a symbolic invocation of his
5 Second Amendment rights so that his possession constituted
6 expressive conduct protected by the First Amendment.
7 Heller does not allege that anyone other than the gun store
8 employees knew of his purchases. Without more, a gun store
9 employee would understand Heller’s purchase as a routine
10 retail transaction. And since there was no likelihood that
11 the supposed message “would be understood by those who
12 viewed it,” he has not sustained his burden of demonstrating
13 more than a “plausible contention” that his purchase was
14 expressive. Church of Am. Knights of the Ku Klux Klan v.
15 Kerik, 356 F.3d 197, 205 (2d Cir. 2004); see also Nordyke v.
16 King, 319 F.3d 1185, 1190 (9th Cir. 2003) (“Typically a
17 person possessing a gun has no intent to convey a particular
18 message, nor is any particular message likely to be
19 understood by those who view it.”).
20 Heller’s Fourth Amendment claim is defeated by probable
21 cause. He argues that his arrest on January 18 and his
22 subsequent hospital detention--both based on his mental
23 health--were unlawful. Pursuant to New York’s Mental
24 Hygiene law, the police may take into custody individuals
9
1 who both appear mentally ill and pose a substantial risk of
2 physical harm to others. N.Y. Mental Hyg. Law §§ 9.41,
3 9.01. Probable cause to make such an arrest means a
4 substantial chance or probability that those requirements
5 are satisfied, based on the information that the police had
6 at the time. Illinois v. Gates, 462 U.S. 213, 245 n.13
7 (1983); Kerman v. City of New York, 261 F.3d 229, 235 (2d
8 Cir. 2001).
9 At the time of the arrest, the police department had
10 access to Heller’s communications with O’Connor, along with
11 an anonymous tip from a friend of Heller’s and information
12 about Heller’s gun purchases. Heller’s delusional
13 communications established at least a substantial chance
14 that he was mentally ill and posed a risk of physical harm
15 to others. Since there was probable cause for both the
16 initial arrest and the detention, the Fourth Amendment
17 claims were properly dismissed.
18 Heller claims his substantive due process rights were
19 violated by his involuntary commitment. But substantive due
20 process rights are only implicated when commitment decisions
21 reflect a level of care substantially below the standards of
22 the medical community. Bolmer v. Oliveira, 594 F.3d 134,
23 142 (2d Cir. 2010). That is a level considerably worse than
24 malpractice; a level so dismissive of the patient’s rights
10
1 to care and freedom that it shocks the conscience. Cty. of
2 Sacramento v. Lewis, 523 U.S. 833, 846 (1998). Heller has
3 not plausibly alleged that the standards used to commit him
4 shock the conscience, and his claim was therefore properly
5 dismissed.
6 Heller’s Second Amendment claim is that his involuntary
7 commitment to a mental institution made it illegal under
8 federal law for him to purchase guns. 18 U.S.C.A. §
9 922(g)(4). Restrictions on the purchase of guns by the
10 mentally ill are presumptively lawful. D.C. v. Heller, 554
11 U.S. 570, 626 (2008) (“[N]othing in our opinion should be
12 taken to cast doubt on longstanding prohibitions on the
13 possession of firearms by felons and the mentally ill.”);
14 see also New York State Rifle & Pistol Ass'n, Inc. v. Cuomo,
15 804 F.3d 242, 269 n.107 (2d Cir. 2015). Heller’s Second
16 Amendment claim was properly dismissed because the
17 restriction on gun purchases by individuals committed to a
18 mental institution is presumptively lawful, and because
19 Heller has not stated a plausible claim that he was
20 improperly committed.
21
22
23
11
1 For the foregoing reasons, and finding no merit in
2 Heller’s other arguments, we hereby AFFIRM the judgment of
3 the district court.
4
5 FOR THE COURT:
6 CATHERINE O’HAGAN WOLFE, CLERK
7
12