Riehm v. Engelking, No. 07-1517 (8th Cir. Aug. 15, 2008)
The U.S. Court of Appeals for Eighth Circuit (AR, IA, MN, MO, ND, NE, SD) has ruled that a Minnesota high school student’s essay depicting a student’s murder of a teacher and suicide constituted a “true threat” and was not protected speech under the First Amendment. David Riehm, a student at Cook County High School (CCHS) in Grand Marais, wrote three essays in his creative writing class that his teacher, Ann Mershon, found disturbing. The first she found contained offensive violent and sexual images. After he submitted the second, in which the narrator complains about his “old fashioned, narrow minded, uncreative, paranoid … jealous” English teacher, Ms. Meshon discussed the essays with his mother, Colleen Riehm, and believed the matter resolved. David then submitted the third essay, the basis for school and county actions that resulted in the lawsuit. This essay depicted the shooting of an English teacher by a student expelled from her class and the student’s subsequent suicide. It included references to the shootings at Columbine High School. When Ms. Mershon, feeling threatened, informed the school principal of her concerns, Ms. Riehm was contacted, David was suspended, and the essays were turned over to the Cook County Sheriff Department. County law enforcement and social services officials obtained authorization to take David into protective custody and have him examined at a mental health facility. After a psychiatrist concluded David was not mentally ill or dangerous, he was returned to his mother’s custody. David and his mother sued various school and county officials in U.S. district court, claiming violations of David’s First Amendment freedom of speech and Fourth Amendment freedom from unreasonable search and seizure. Ms. Riehm also claimed her Fourteenth Amendment right to familial integrity was violated when David was taken, and her Fourteenth Amendment right to substantive due process was violated by Cook County’s failure to pay David’s medical bills. They also brought state constitutional and tort claims. They voluntarily dismissed their claims against the school defendants and some county defendants, and the district court dismissed the suit against those remaining.
The Eighth Circuit affirmed. After concluding that the plaintiffs failed to provide evidence of a county custom or policy, or of the defendant supervising official’s direct involvement in the alleged violation or of her supervision of the defendant social worker, the court found the district court correctly dismissed the claims against the county and the supervisor. Turning to the social worker, the court noted that the First Amendment does not protect a “true threat,” i.e., “a statement that a reasonable recipient would have interpreted as a serious expression of an intent to harm or cause injury to another.” Relying on a previous Eighth Circuit decision in Doe v. Pulaski County Special Sch. Dist., 306 F.3d 616 (8th Cir. 2002) (en banc), the court found David’s third essay constituted a true threat. “This lengthy essay describing an obsession with weapons and gore, a hatred for his English teacher with a similar name who had been critical of his prior essays, a surprise attack at a high school, and the details of his teacher’s murder and the narrator’s suicide lead to the inescapable conclusion that it was a serious threat directed at Mershon.” As for the Fourth Amendment claim, the court held that the third essay gave the social worker a reasonable basis for believing that David’s welfare was at risk and that allowing him to remain with his mother, in light of the teacher’s previous unproductive discussion with her, was contrary to his welfare. The court also dismissed the plaintiffs’ state law claims.
Riehm v. Engelking, No. 07-1517 (8th Cir. Aug. 15, 2008)
[Editor’s Note: In a case summarized at the first link below, the Eleventh Circuit (AL, GA, FL) held that a student’s violent writing “clearly caused and was reasonably likely to further cause a material and substantial disruption,” and thus was not protected speech. In contrast, the Fifth Circuit (LA, MS, TX), in the decision at the second link, sidestepped both the disruption and the “true threat” analyses, holding simply that “speech advocating a harm that is demonstrably grave and that derives that gravity from the ‘special danger’ to the physical safety of students arising from the school environment is unprotected.” The third link is to an account of yet another incident involving a school’s response to a student’s violent essay. As a practical matter, English teachers might consider leading their students in a short discussion of “What school writing assignments and jokes about bombs in airports have in common.”]
NSBA School Law pages on Boim v. Fulton County Sch. Dist.
NSBA School Law pages on Ponce v. Socorro ISD
NSBA School law pages on Illinois incident