     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.
 3   - - - - - - - - - - - - - - - - - - - -X
 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
