Unfair Suspension for Talk of Mass Murder?

(CN) - A student's boast that he could kill more than 50 people at his high school was just a private conversation between teenagers, not grounds for a suspension that lasted the rest of the school year, his lawyer told the 9th Circuit.

Landon Wynar was suspended after friends showed Douglas County High School officials disturbing instant messages he had sent them the night before.

After the officials questioned Wynar, they had him arrested. They also suspended him for ten days and then increased the suspension to 90 days, which covered the remainder of the 2007-2008 school year.

Wynar, who claimed that he had been joking and never intended to harm anyone, sued the Minden, Nev., school district in 2009 for violating his constitutional rights. He wanted an order expunging his school records, permission to make up his schoolwork and at least $100,000 in compensatory damages.

In 2011, a federal judge dismissed the suit in summary judgment, ruling that the school district had not violated Wynar's First Amendment rights since they "had a reasonable basis to forecast a material disruption to school activities."

"In his messages, [Wynar] invoked the image of the Virginia Tech massacre," said the order by U.S. District Judge Larry Hicks. "He stated that he had access to guns and ammunition. He wrote about getting 'the record' for school shootings and made specific references to girls and the school by name. Further, he had a specific date in mind for carrying out his threats, April 20th, the anniversary of the Columbine massacre."

Wynar's instant messages said he would kill more people than "that stupid kid from vtech," referring to the 2007 Virginia Tech massacre in which 32 people were killed. He also wrote: "he didnt do shit and got a record. i bet i could get 50+ people and not one bullet would be wasted."

In other messages he threatened to shoot a girl's "boobs off" and named students whom he planned to kill, writing "and ill probly only kill the people i hate? who hate me then a few random to get the record."

Hicks' order said school officials had no way of knowing that Wynar was joking, "because there is no inference that can be drawn solely from his statements that he was joking or had no intent to carry out the threats."

Wynar's attorney, however, told a three-judge panel of the 9th Circuit last week the communications happened entirely off campus and no threat was ever directly communicated to the school staff or students.

Jeffrey Blanck said the school district failed to meet the mens rea requirements of the criminal statute banning threats that was used to expel Wynar. Specifically, the school district never showed that Wynar intended to frighten students or employees, cause a panic, or interfere with school operations.

"We have a conversation between two 16-year-old boys, with improper, vulgar language that was done at home. Landon never took it to school," he said. "The school can take action but it doesn't meet the definition of a threat that requires expulsion."

"What happened here was almost strict liability. What they're saying is, 'You said these words and we found out about it and because you said these words, you're going to be kicked out of school, expelled for 90 school days and we don't care what your explanation is.'"

Circuit Judge Paul Watford said he thought the school could take some initial action based solely on the likelihood that Wynar's words could cause a disruption at school. "We can have an inquiry later to see whether this kid is really serious or not, but on its face, the speech is frightening," he said.

Blanck agreed, saying the initial ten-day suspension was alright, but that the 90-day suspension was imposed without any psychological evaluation of Wynar and in reliance on a Nevada criminal threat statute that required the school to show Wynar had formed intent.

"School erroneously found a threat without a determination of intent," he said.

In his brief to the 9th Circuit, Blanck wrote, "[Wynar] never made a threat to any student and never broke any school rule. There was no hit list and he had no weapons or access to weapons; it was all just teenage banter. [Wynar]'s First Amendment rights to the United States Constitution were violated by his expulsion and he was denied due process."

Circuit Judge M. Margaret McKeown queried Blanck: "If I say 'I'm gonna go down to that school and shoot up all the students,' and the students don't know and therefore I don't have a threat?"

"Correct. That's the Supreme Court's position. That doesn't mean the school can't take action, but it's not a criminal threat," he replied.

Ann Alexander, the Douglas County School District's lawyer, said the school was obligated by 9th Circuit rules set forth in LaVine v. Blaine School District to impose a 90-day suspension.

District Judge Thomas Zilly, sitting on designation from the Western District of Washington, noted that in LaVine, the student, unlike Wynar, had brought a threatening poem to the school and handed it to the teacher.

Alexander replied that other Circuit Courts have ruled that, "In an electronic era, it is now also reasonably foreseeable that this kind of communication, particularly among students and about students is going to find its way to campus."

"The 90-day suspension was based on the school district's conclusion that these were credible threats," she said.

Nevada's laws did not give the school district as many options for dealing with Wynar as would the laws of some other states, but she said Wynar was given substantive due process.

"There was no First Amendment violation here. If we're just arguing about the amount of discipline imposed, or how they managed it ... the federal court is not the place to relitigate even disciplinary decisions that we might think in retrospect were perhaps unwise."

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