SALT LAKE CITY (Legal Newsline) - A Utah man who placed critical signs in his yard and repeatedly confronted the owner of a mental-health facility in his neighborhood could be liable under the state’s anti-stalking law, the Utah Supreme Court ruled, reversing a lower court that found the man’s behavior wasn’t threatening to a reasonable person and was protected by the First Amendment.
Kristi Ragsdale founded Eva Carlston Academy, an inpatient treatment facility for young women recovering from severe depression and anxiety, in a house in a Salt Lake City residential neighborhood in 2013. When she launched the business, some neighbors complained, distributed flyers and petitioned the local council to try to block ECA from opening.
George Fishler was among the petitioners, and when those efforts failed, he began protesting the business directly. He put signs in his yard describing it as the “TROUBLED TEEN MONEY MACHINE” and saying “DELIVER US FROM EVA.”
“He also began flipping off and swearing at employees, clients, and anyone else involved with ECA,” the Utah Supreme Court said in a recently published opinion.
Over the next four years, Ragsdale says Fishler got more assertive, shouting expletives at her when she came and went and describing her clients as “little bitches” and worse. Many of these interactions occurred when Ragsdale was by herself, the court noted.
Ragsdale filed for a civil stalking injunction against Fishler in June 2017. The court issued it on June 19, 2017, after which Fishler asked for an evidentiary hearing. At the hearing, Ragsdale said she suffered fear and emotional harm from Fishler’s behavior and asked for a permanent injunction prohibiting him from stalking her and contacting her coworkers and requiring him to take down his signs. Fishler said he was engaging in peaceful protest against ECA.
The court denied Ragsdale’s request for a permanent injunction, saying Fishler’s behavior wouldn’t cause a reasonable person to suffer fear and emotional distress and was protected by the First Amendment. “In this day and age,” the lower court concluded, “exposure to pejorative gestures and profanity should not cause the type of significant mental or emotional distress envisioned by” the stalking statute. The judge who conducted the evidentiary hearing then retired, and the new judge refused to award fees to Fishler.
The Utah Supreme Court reversed, saying the lower court had applied the wrong standard for determining if Fishler violated the stalking law. The law prohibits behavior “directed at a specific person” that the perpetrator knows or should know would cause emotional distress. The types of acts that have been found to fit the description, the court said, include following, monitoring, photographing, threatening or “approaches or confronts” of a victim.
Two instances are enough to establish a pattern “directed at the petitioner” the Supreme Court concluded, rejecting Fishler’s argument Ragsdale had to prove he was targeting her personally. In another case, a man was found to have violated the law by sending disparaging emails to a woman's employer, for example, as was a landlord who pulled a gun on a business tenant’s employees, instead of the business owner himself.
“The fact that ECA was allegedly Mr. Fishler‘s ultimate target does not shield him from the fact that he flipped off and communicated obscenities directly to Ms. Ragsdale on two or more occasions,” the court concluded. “It simply means ECA could potentially obtain an injunction against him as well.”
The court went on in a footnote to observe that simply flipping someone off might not violate the stalking statute. The recipient of the bird must have a reasonable fear sufficient to cause “significant mental or psychological suffering,” the court said.
In this case, the Supreme Court said the lower court didn’t assess how a reasonable person would be affected by Fishler’s behavior. The “blanket conclusion” people shouldn’t be scared by obscenities and insulting gestures failed to account for the cumulative effect of his behavior and the fact it occurred outside her place of work. The lower court should have evaluated Fishler’s conduct in light of specific facts and circumstances, the high court said.
The Utah Supreme Court also reversed Fishler’s victory on First Amendment grounds, citing a previous decision, Towner v. Ridgway, upholding a stalking injunction against a Senate candidate who repeatedly confronted a party activist over their political disagreements. The government could prohibit the stalker from communicating directly with his target, the court concluded, even though the First Amendment protected his right to speak generally about the issues they disagreed about.
Since the lower court didn’t issue an injunction, the Supreme Court declined to discuss further First Amendment limitations on doing so.