People v. Swenson, 2019 IL App (2d) 160960 (February). Episode 597 (Duration 9:00)
Defendant called up a private school to ask about their live shooter safety, then got himself promptly arrested.
Defendant was convicted of disorderly-conduct. He called the Keith Country Day School and spoke with the admissions director about their “live shooter” protocols.Subscribe: Apple | Google | Spotify | Android | RSS | Direct Download
He said was interested in enrolling his second-grade son at the school, and he “immediately went into a battery of questions about the protocol at [the] school for handling things that were related to guns and shooting.”
Didn’t help that he said he had been kicked out of the school.
What He Said
“He basically wanted to know how prepared I would be if he or anyone who arrived on our campus with guns? And do we have bullet proof windows at our secretary’s desk? Are our doors bullet proof? Where do our faculty members stand when we do a lockdown when there is an intruder in our building? Where do they stand in position in a classroom? Do we arm our faculty? How would our faculty defend themselves against an armed intruder? There were multiple questions.”
Defendant also mentioned that “the United States was full of socialists and KGB members.”
He also asked if she
“knew the number of *** school shootings that had taken place in the United States and if she knew the success rate of shooters once they were on campus.”
Defendant brought up the San Bernardino shooting, which had happened one week earlier. He further asked:
“Is the school prepared if that would happen in your campus today?”
The administrator testified:
“He asked me if I was prepared to have the sacrificial blood of the lambs of our school on our, on my hands, if this were to happen and what would I do? What would I do if he were to show up at the campus with a gun what would be the protocol of the school?”
Defendant also asked if the students were given “PEZ dispensers to defend themselves.” He asked if the teachers carried guns, and he talked about “a number of guns and their success rate in kill.” He asked how long it would take police to get to the school in the event of a shooting.
Then He Really Got Crazy
At one point, defendant “was talking about when you shoot and kill children and you’re looking them in the eye and their innocence and the pillows of laying their heads down at night and then you have a shooter who shoots them in the face, you know, what does that do for her as a school?”
He asked her if she would “sniff the pillow.”
She stated that she thought he wanted to know “if she would sniff the pillow of their innocence after they’ve been dead.”
The school official testified that, based on her conversation with defendant, she believed that defendant was on the school campus. He had stated that he was familiar with the woods around the school campus because he had gone to school there.
The school official testified that the conversation left her “very shook up.”
Charged With Disorderly Conduct
Defendant was charged with violating section 26-1(a)(1) of the Criminal Code of 2012 (Criminal Code) (720 ILCS 5/26-1(a)(1)), which provides as follows:
“(a) A person commits disorderly conduct when he or she knowingly: (1) Does any act in such unreasonable manner as to alarm or disturb another and to provoke a breach of the peace[.]”
Interestingly, he was also charged with attempted disorderly conduct, in that defendant attempted to convey a threat, the court found defendant not guilty of that charge.
Section 26-1(a) is a general provision intended to encompass all of the usual types of “disorderly conduct” and “disturbing the peace.” Activity of this sort is so varied and contingent upon surrounding circumstances as to almost defy definition. These considerations have led the Committee to abandon any attempt to enumerate “types” of disorderly conduct. Instead, another approach has been taken.
Requires Knowing Conduct
As defined by the Code, the gist of the offense is not so much that a certain overt type of behavior was accomplished, as it is that the offender knowingly engaged in some activity in an unreasonable manner which he knew or should have known would tend to disturb, alarm or provoke others.
The emphasis is on the unreasonableness of his conduct and its tendency to disturb. Raby, 40 Ill. 2d at 396-97 (quoting Ill. Ann. Stat., ch. 38, ¶ 26-1, Committee Comments (SmithHurd 1964)). Thus, although the scienter requirement for the doing of the act in an unreasonable manner is one of knowingness, the scienter requirement for “tend to disturb, alarm or provoke” is “knew or should have known.” Id. at 397; see People v. Albert, 243 Ill. App. 3d 23, 27 (1993) (because the defendant “performed her shouting knowingly and also knew or should have known that such noise likely would disturb people such as the complainant,” she could properly be found guilty of disorderly conduct).
Given the supreme court’s clear statement, the question is whether the evidence was sufficient to establish beyond a reasonable doubt that defendant knowingly committed an unreasonable act that he knew or should have known would tend to alarm or disturb another so as to provoke a breach of the peace.
Defendant testified that his intent in making the call was to enroll his son in the school. When police arrested him there were no guns at his place. Defendant testified that he never threatened anyone at the school. He never said that he was bringing a weapon to the school. He did not have a firearm owner’s identification card, nor did he own any weapons.
Convicted By The Trial Court
In finding him guilty the court stated:
“Would you as a parent have the right to know some things about the school? Yes, but not in this fashion. The hallmark of this ruling here is reasonableness. We try to look at things reasonably and this was just an unreasonable act. Would a reasonable person be alarmed and disturbed? Yes. A reasonable person would be alarmed and disturbed. And I so find. I find that the act was done knowingly. Even if it wasn’t done knowingly in the sense of making a threat to the school but if the act was done knowingly and was the act an unreasonable act? Yes. The conversation is outlined by a credible witness and was unreasonable. It went too far for that. So it is disorderly conduct.”
Analysis – Alarm & Disturb
Here, viewed in the light most favorable to the State, the evidence allowed the trial court to infer that defendant had the requisite mental state.
Although inquiring generally about a school’s security protocol is not unreasonable in itself, the nature of defendant’s questions and comments, considered in their totality, clearly exceeded the bounds of reasonableness.
For instance, although defendant never stated that he was on the campus, he let her know that he was familiar with the campus. Defendant conveyed a detailed knowledge of guns and school shootings, and he asked what would happen “if he were to show up at the campus with a gun.” Defendant reminded the school official about the recent San Bernardino shooting and asked, “Is the school prepared if that would happen in your campus today?”
Although defendant claims that he “was only inquiring about the security at the school in relation to his concerns for his son’s safety,” his comments as a whole were broader, morbid, and clearly inappropriate to his purported objective.
Viewing the evidence in the light most favorable to the State, we find that a rational trier of fact could have found that defendant knowingly acted unreasonably and knew or should have known that his act would alarm or disturb the school official so as to breach the peace.
Analysis – Free Speech
Defendant next argues that, because his words were not lewd, profane, obscene, libelous, “fighting words,” or “true threats,” they were protected by the first amendment, such that the disorderly-conduct statute cannot be read as criminalizing them.
Words that are expressed “in such an unreasonable manner as to provoke, make or aid in making a breach of peace [do] not come within the protections of the first amendment.” City of Chicago v. Morris, 47 Ill. 2d 226, 230-31 (1970). Here, defendant, argues that his conduct was protected by the first amendment in that he merely “had a conversation with the school official about the security at Keith School.”
This is flagrantly disingenuous.
As noted, defendant did not merely engage in a civil conversation concerning a matter of public interest. Nor was he “peacefully expressing unpopular views.” Raby, 40 Ill. 2d at 397. Rather, he subjected the school official to a lengthy interrogation that was disturbing, morbid, and well beyond a reasonable concern for school security, causing a police response and a school lockdown.
Although defendant’s concern might have been reasonable, his manner of expressing it was not, and he provoked a breach of the peace. See Pence, 2018 IL App (2d) 151102, ¶ 17 (“a breach of the peace can occur without overt threats or profane and abusive language” (internal quotation marks omitted)). It thus was not constitutionally protected.
- Episode 425 – People v. Relerford, 2017 IL 121094 (November) (anti-stalking statute remains unconstitutional)
- Episode 543 – People v. Goodwin, 2018 IL App (1st) 152045 (September) (threatening a public official requires intentionality from defendant – this defendant yelled at a prosecutor)
- Episode 426 – People v. Wood, 2017 IL App (1st) 143135 (November) (defendant left a crazy, ranting voicemail and really let the judge have it but it didn’t constitute threatening a public official)
- Episode 089 – People v. Dye, 2015 IL App (4th) 130799 (August)(defendant snaps at his public defender and she lashed back but he didn’t threaten a public official)
- Episode 561 – People v. Khan, 2018 IL App (2d) 160724 (October) (Dude posted a message on facebook that he carries a gun on the college campus and people gonna end up in a body bag if they don’t stop messing with him.)
- People v. Pence,2018 IL App (2d) 151102 (April) (freaking idiot sends a fb message to his previous victim)