Criminal
Aug. 1, 2002
DCA Rules Boy's Drawing Of Shooting Is Not a Threat
SAN FRANCISCO - A high school student cannot be prosecuted for making a criminal threat simply because he painted a picture of himself shooting the campus police officer who had busted him for drug possession.
A panel of the Sacramento-based 3rd District Court of Appeal unanimously overturned the 15-year-old's conviction for threatening the officer, concluding that the boy's expression of his anger through an art class project was too ambiguous to convey criminal intent.
"Without question, it was intemperate and demonstrated extremely poor judgment," Presiding Justice Arthur Scotland wrote. "But the criminal law does not, and can not, implement a zero-tolerance policy concerning the expressive depiction of violence."
The minor, identified in court papers only as Ryan D., had been cited by officer Lori MacPhail for possession of marijuana after she found him off-campus during school hours and conducted a pat-down search.
A month after that incident, Ryan turned in a project for a painting class he was taking at school. His painting depicted a person wearing a green hooded sweatshirt discharging a hand gun at the back of the head of a female peace officer wearing a uniform with badge No. 67 - the same number worn by MacPhail. The officer had blood on her hair and pieces of her flesh and face were being blown away and the shooter bore a resemblance to Ryan.
When the art teacher saw the painting - after instructing the students they could not paint violent imagery - she decided it was "scary" and "disturbing" and alerted school administrators, who, in turn, alerted police.
In juvenile court, the boy testified that the painting was simply an expression of his feelings and that he did not expect MacPhail to see it.
Ryan was nonetheless found guilty of making a threat by Butte County Superior Court Judge Ann H. Rutherford and placed on home probation.
The appellate panel said school administrators were right to be concerned about the painting but concluded that the circumstances surrounding the entire episode did not merit criminal prosecution.
The fact that the boy took a month to produce the painting and then turned it in for credit and the fact that neither school authorities nor police took immediate steps to arrest him all factored into the appellate court's conclusion that Ryan's actions did not constitute an immediate and specific threat as required by Penal Code Section 422.
Scotland was joined by Justices Coleman Blease and Richard Sims.
Deputy Attorney General Harry Colombo, representing Butte County prosecutors, said he was not surprised by Tuesday's ruling because the evidence was, "frankly, very thin at best."
"I think it was a bit of a stretch to say that a painting could constitute a terrorist threat under the circumstances of that particular case," he said, adding that he does not plan to seek a further appeal.
Ryan's appointed defense attorney, James W. Webster of Sonora, expressed delight with the outcome.
"A winner," he said of the case. "They don't come very often."
Peter Blumberg
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