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DISTRICT ATTORNEY
NORTHWESTERN DISTRICT

ONE GLEASON PLAZA NORTHAMPTON, MASSACHUSETTS 01060

DAVID E. SULLIVAN
DISTRICT ATTORNEY

TEL (413) 586-9225

FAX (413) 584-3635

WWW.NORTHWESTERNDISTRICTATTORNEY.ORG

January 14, 2013

Chief Russell Sienkiewicz Northampton Police Department 29 Center St. Northampton, MA 01060 Superintendent Brian Salzer Northampton School System 212 Main St. Northampton, MA 01060 Dear Chief Sienkiewicz and Superintendent Salzer: This letter is a more detailed follow-up to oral advice that this Office provided when contacted last month concerning the propriety of inviting Northampton High School students to copy a safety pledge. The impetus for the pledge was the discovery of a threatening note in the school less than a week after the mass shooting in Connecticut. As a member of this Office earlier counseled, in light of the frightening circumstances presented, the solicitation of written pledges was a prudent and legally justifiable effort to protect the school population by identifying the note's author.
Background

On Friday, December 14, 2012, a 20-year old gunman entered the Sandy Hook Elementary School in Newtown, Connecticut, and shot to death 20 first-grade students and six faculty members, before taking his own life.' In response to the massacre, schools across the country increased security as students and staff returned to school on Monday, December 17, after a weekend of wall-to-wall coverage of the shootings in the media.2 Officials were concerned with the possibility of emulators. The "copycat phenomenon" is a recognized phenomenon, 3 which was evident in the recent arrest of a
1 N.R. Kleinfield, Gunman Took Big Supply of Ammunition to School After Killing Mother at Home, Times, Dec. 16, 2012.
2

N.Y.

Anthony Fioriglio and Adrienne LaFrance , Post-Sandy Hook, School Security Beefed Up Around the Country, Long Beach Post-Telegram, Jan. 3, 2012. 3 Nina Lindberg, Eila Sailas, and Riittakertuu Kaltiala-Heino, The copycat phenomenon after two Finnish school shootings: an adolescent psychiatric perspective, BMC Psychiatry Vol. 12, July 28, 2012.

20-year-old Missouri man who allegedly planned a movie-theater shooting comparable to that in Aurora, Colorado. 4 There was also a preexisting concern about potential violence relating to the well-publicized end of the Maya calendar on December 21. 5 In the early afternoon of Wednesday, December 19, a Northampton High School student discovered a threatening note in a bathroom. Because there is an ongoing investigation, the particulars of the note cannot be provided at this time. Suffice it to say that the contents readily evoke comparison to the Sandy Hook massacre. Due to the nature of the note, the Northampton police were immediately contacted and supervised a controlled dismissal of the students that day. After consulting with the Northampton police and the District Attorney's Office, school personnel devised a pledge to which the students at the high school would be invited to subscribe. The pledge affirms that the student takes these types of threats seriously and shares the concern with the administration and the police for the safety of the school: In the wake of recent acts in schools including the school shooting in Connecticut and the recent threat here at the high school, I with concern for myself, my classmates, and my school, pledge that I take these incidents seriously. With this in mind I understand that it is not only important to be able to identify whomever may make any type of these threats, for the safety of the school, but also for the safety and concern of the individual making the threat. Any information I may have or may come across will be passed along to the appropriate school staff members. On the morning of December 21, many students agreed to write out the pledge as read aloud by a classroom teacher. Others declined. The pledges will be retained by the Northampton police and will not be used outside this particular investigation.
Legal Analysis

Students do not shed their constitutional rights by entering a school. They retain their rights under federal and state law to be free from "unreasonable" searches and seizures. 6 The "ultimate touchstone" of both the Fourth Amendment of the United States
Heather Hollingworth, Man plotted Twilight' attack similar to Colorado massacre: cops, Associated Press, Nov. 16, 2012. 5 Greg Toppo, Mich. schools close amid threats tied to Maya calendar, USA Today, Dec. 19, 2012 ("School officials nationwide planned to beef up security on Friday and in a few cases hastily canceled classes for the rest of the week amid rumored threats of violence, some related to doomsday scenarios based on the Maya calendar"). 6 Fourth Amendment of the U.S. Constitution ("The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated"). Art. 14 of the Massachusetts Declaration of Rights ("Every subject has a right to be secure from all unreasonable searches, and seizures, of his person, his houses, his papers, and all his possessions").
4

Constitution and art. 14 of the Massachusetts Declaration of Rights is "reasonableness." 7 The question here, then, is whether the solicitation of written pledges from the students was "reasonable." Due to the gravity of the threat, and the context in which it was made, this minimally intrusive action was reasonable and, thus, legally permissible. Our state Supreme Court has held that students do not have an expectation of privacy in their handwriting. 8 In that case (Buccella), high school officials had provided the police with handwriting samples to help identify the student responsible for vandalizing a school room and scrawling racial slurs on a blackboard. Handwriting, reasoned the court, is "repeatedly shown to the public, and there is no more expectation of privacy in the physical characteristics of a person's script than there is in the tone of his voice." 9 Nonetheless, students may expect that papers turned in to school personnel, such as the homework in Buccella, will not be disseminated beyond the school setting. But a "mere expectation that the person to whom an item is entrusted will use it for limited purposes and not reveal it to others does not give rise to a reasonable expectation of privacy under the Fourth Amendment to the United States Constitution." 1 The court in Buccella assumed, without deciding, that a student would have such an expectation in those particular writing samples because homework is compulsory (but concluded that the actions of the school officials "easily" met the standard of reasonableness based on the nature of the crime and "minimal intrusion" of student's privacy). 11 The pledges involved here, by contrast, were not compulsory. But even assuming that the students had a reasonable expectation that the pledges would not be disclosed outside the school, the actions were still permissible. Ordinarily, the police must have a particularized reason to believe that an individual person was involved in criminality to justify a search or seizure. But "when urgent considerations of the public safety require compromise with the normal principles constraining law enforcement, the normal principles may have to bend." 12 "Our courts have held that the need to protect or preserve life or avoid serious injury is justification for what would be otherwise illegal, absent an exigency or emergency." 13 For example, the police may set up dragnet-style roadblock to apprehend a dangerous gunman. 14 The magnitude of a threatened harm may demand a response regardless of the presence or absence of particularized suspicion of individual wrongdoing.
Commonwealth v. Entwistle, 463 Mass. 205, 213 (2012). 8 Commonwealth v. Buccella, 434 Mass. 473, 476 (2001). 9 Id., quoting United States v. Mara, 410 U.S. 19, 21 (1973). 10 Id. at 484. ti Id. at 484-485. 12 Edmond v. Goldsmith, 183 F.3d 659, 663 (7th Cir. 1999), aff d, 531 U.S. 32 (2000). 13 Commonwealth v. Samuel, 80 Mass. App. Ct. 560, 562-563 (2011). 14 Commonwealth v. Grant, 57 Mass. App. Ct. 334 (2003). See also Edmond v. Goldsmith, supra ("We may assume that if the Indianapolis police had a credible tip that a car loaded with dynamite and driven by an unidentified terrorist was en route to downtown Indianapolis, they would not be violating the Constitution if they blocked all the roads to the downtown area even though this would amount to stopping thousands of drivers without suspecting any one of them of criminal activity").

Here, the note discovered on December 19 exposed an imminent danger to the lives of the students and staff at Northampton High School. The note's discovery came five days after the massacre at Sandy Hook Elementary School (in neighboring Connecticut) and two days before the end of the Maya calendar, both events producing heightened alert in schools across the country. The solicitation of a written pledge was a reasonable response both to quell the tension permeating the school and to try to identify the author of the threat to safeguard the entire school population. Participation in the pledge was not compulsory. Although the students were not told that the pledges would be forwarded to the police, the exercise itself was minimally intrusive, simply asking each participant to provide a verbatim copying of a uniform pledge. These were reasonable actions in light of the circumstances. Sincerely,

David E. Sul Ivan District Attorney