Metropolitan News-Enterprise


Wednesday, July 31, 2002


Page 3


Painting of Officer Being Shot Not a Criminal Threat, Court of Appeal Rules


By a MetNews Staff Writer


A minor, angry that a police officer had cited him for drug possession, did not make a criminal threat against the officer by painting an art class picture in which the officer is shot in the back of the head, the Third District Court of Appeal ruled yesterday.

The minor—identified as Ryan D.—“was intemperate and demonstrated extremely poor judgment,” Presiding Justice Arthur Scotland wrote. “But the criminal law,” he said, “does not, and can not, implement a zero-tolerance policy concerning the expressive depiction of violence.”

Ryan, a high school student in Chico at the time, was cited for marijuana possession by the officer, Lori MacPhail, after a pat-down search following a truancy stop.

About a month later, he turned in the art project. It showed a female peace officer, wearing MacPhail’s badge number, being shot with a handgun by a person who appeared to be Ryan.

The imagery was graphic and “scary,” as the art teacher described it. Officials were notified and confronted Ryan, who admitted that the painting was a product of his anger at McPhail.

The picture was shown to the officer later that day. She later testified that she was “shocked” and “upset” when she saw it, that she thought “it would not be impossible” for Ryan to actually shoot her, and that she stayed away from the school for a few days as a “normal precaution”

Ryan was not arrested or cited at the time, but the matter was turned over to another Chico Police Department officer to investigate.

Ryan testified that he painted the picture because he was angry, but said he did not expect the painting to be shown to McPhail and did not intend to scare her.

Butte Superior Court Judge Ann H. Rutherford sustained the criminal threat charge under Penal Code Sec. 422, as well as the marijuana charge. Ryan was made a ward of the court and placed on home probation.

Sec. 422 makes it a crime, punishable as a “wobbler,” to make a statement threatening death or great bodily injury “with the specific intent that the taken as a threat, even if there is no intent of actually carrying it out.”

The statement must be “so unequivocal, unconditional, immediate, and specific as to convey to the person threatened, a gravity of purpose and an immediate prospect of execution of the threat,” and must place the person threatened in reasonable fear for the person’s safety or that of his or her immediate family.

The painting did not meet that standard, Scotland wrote for the Court of Appeal, noting that the statute is narrowly worded to assure that constitutionally protected expression is not punishable.

A painting, he explained, “is necessarily ambiguous” as an expression of the artist’s intent.

“Of course, ambiguity may be resolved by surrounding circumstances,” he wrote. “However, the circumstances in this case do not support a finding that the minor’s painting meets the requirements of section 422.”

Those circumstances, he reasoned, include the amount of time that had passed since the citation, the fact that the painting was taken to school and turned in for credit—“a rather unconventional and odd means of communicating a threat,” Scotland commented—and the fact that McPhail would not normally come into the art classroom and see the students’ artwork.

While Ryan perhaps should have foreseen that the painting would be shown to McPhail, the jurist said, that does not mean he had the specific intent that she see it.

Indeed, Scotland went on to say, school authorities apparently did not perceive the painting to be a threat, because they did not treat it with immediacy.

The teacher, he noted, merely took it an assistant principal’s office, leaving it with a note suggesting it be looked at, then waited a day before discussing it with Ryan. Nor did the assistant principal, MacPhail, or the officer who investigated the matter take any immediate action, Scotland pointed out.

“The failure of school authorities, the victim, and the police to take immediate action against the minor illustrates that the painting did not convey to them such an unequivocal, unconditional, immediate, and specific threat to commit a crime that would result in death or great bodily injury, with a gravity of purpose and immediate prospect of executing such a threat,” he wrote.

The case is In re Ryan D., C035092.


Copyright 2002, Metropolitan News Company