Painting Depicting Police Shooting Not a Threat, Court Rules

July 7, 2008 - 8:20 PM

(CNSNews.com) - A California high school student's painting, which depicted him shooting a female police officer in the head, does not constitute a threat, according to a recent ruling by a state appeals court in Sacramento.

The case dates back to the winter of 1999/2000. According to court documents, the then-15-year-old sophomore, whom authorities identify only as "Ryan D," painted a large canvas depicting "a person wearing a green hooded sweatshirt and discharging a handgun at the back of the head of a female peace officer."

The painting included the officer's identifying badge number. She also had "blood on her hair, and pieces of her flesh and face were being blown away," according to the court's description of the canvas.

"Not a very nice painting," commented James Webster, Ryan's defense attorney. "But he's not charged with painting a graphic painting; he was charged with a terrorist threat."

Threatening Is As Threatening Does

"Did I feel threatened? Absolutely," said Chico Police Sgt. Lori MacPhail, the officer depicted as the victim in the painting. "It was horrible, horrible, horrible. I can't believe the court saw this [evidence] and drew this kind of conclusion. It's ridiculous," she told CNSNews.com.

"It was clear, demonstrated threat as far as I'm concerned," MacPhail added.

MacPhail was working as a school officer at Pleasant Valley High in December of 1999 when she cited Ryan for marijuana possession. A month later, Ryan turned in his art project, touching off a legal debate that would last for the next two-and-a-half years.

Ryan's art teacher, disturbed by the painting, took it to the vice principal of the school. Ryan was brought in for questioning a few days later, his attorney, James Webster, said. And once MacPhail saw the painting, the police department began investigating and then brought the matter to the state district attorney.

A Butte County Superior Court judge found that Ryan's actions constituted a terrorist threat against MacPhail, but Webster appealed the case. Last week, California Appeals Court Justice Arthur Scotland overruled the county court decision, writing that "criminal law does not, and can not, [sic] implement a zero-tolerance policy concerning the expressive depiction of violence."

According to Scotland's ruling, the fact that the alleged threat was in the form of a painting made it "necessarily ambiguous," due to possible use of "symbolism, exaggeration and make-believe."

To qualify as a "terrorist threat," explained Webster, there not only has to be a specific intent to convey the threat, but "that act must put the person that it's conveyed to - intentionally conveyed to - in sustained fear of their life."

While MacPhail maintained she "had every reason to believe that he was capable of carrying out the threat that he painted," Ryan's attorney said the painting was merely a way to "vent his frustrations."

"He wasn't threatening to do it to anybody," Webster said.

The Matter of Free Speech

"I wonder how that judge would feel if he was the one in the painting," countered Jim Pasco, executive director of the national Fraternal Order of Police. "You know, he might have a different perspective of free speech."

Brad Dacus, president of the Pacific Justice Institute, said he and his colleagues are "avid defenders of the free speech rights of students" but he added that, "schools do have a compelling interest to prevent students from planning or carrying out acts that may result in violence or induce students to engage in violent activity."

David Hudson, research attorney for the First Amendment Institute, said he is not surprised by the verdict, because of the problem in trying to "apply the wording of the statute," to a minor.

"It was simply a hard fit to ... apply that criminal law to that student," Hudson said, citing the fact that Ryan did not deliver the painting to the person allegedly being threatened.

"I don't think it would be unreasonable for a school to investigate in light of some of the tragedies we've dealt with," Hudson said. "I'm just not so sure about charging the student under this criminal statute."

"It's not criminal to be offensive," Webster noted. "Anytime anybody says anything that's offensive to a neighbor or a co-worker, all of a sudden we've got a felony terrorist threat charge."

Webster said schools should look for alternatives to litigation when confronted with offensive students.

"Kick the kid out," Webster said. "Get him out of the school, get him away from there ... but you don't throw him in jail."

E-mail a news tip to Jessica Cantelon.

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