People v. Swenson

2020 IL 124688

181 N.E.3d 116

450 Ill.Dec. 116

The PEOPLE of the State of Illinois, Appellee,

v.Rory SWENSON, Appellant.

Docket No. 124688

Supreme Court of Illinois.

Opinion filed June 18, 2020.

James E. Chadd, State Appellate Defender, Thomas A. Lilien, Deputy Defender, and Erin S. Johnson, Assistant Appellate Defender, of the Office of the State Appellate Defender, of Elgin, for appellant.

Kwame Raoul, Attorney General, of Springfield (Jane Elinor Notz, Solicitor General, and Michael M. Glick and Garson S. Fischer, Assistant Attorneys General, of Chicago, of counsel), for the People.

JUSTICE GARMAN delivered the judgment of the court, with opinion.

OPINION

¶ 1 Defendant Rory Swenson was convicted of disorderly conduct in the circuit court of Winnebago County after a telephone conversation with the advancement director of a private school. In that call, he asked about the school's security measures and spoke extensively about shootings and violence. The conversation caused a soft lockdown at the school and a police response. We are called on to decide whether defendant's speech was protected by the first amendment to the United States Constitution.

¶ 2 BACKGROUND

¶ 3 On December 7, 2015, defendant placed a call to Keith Country Day School (Keith), a private school in Winnebago County. He left a message for the director of advancement. When she called him back, he asked questions and gave statements about school security, mass shootings, and gun violence. These questions and statements disturbed and alarmed the director, who texted another administrator to call the police and lock down the school. Defendant was arrested and eventually charged with attempted disorderly conduct ( 720 ILCS 5/8-4(a), 26-1(a)(3.5) (West 2014)), phone harassment (id. § 26.5-2(a)(2)), and disorderly conduct (id. § 26-1(a)(1)). The case proceeded to a bench trial.

¶ 4 The State called two witnesses. The first was the police officer who was dispatched to defendant's home to investigate the call. He testified that he called defendant, who did not answer but came outside within a minute of the officer's call. He said that defendant admitted calling the school to ask about security. He testified that he arrested defendant for disorderly conduct and placed him in the back of his police cruiser. He agreed that defendant was at all times cooperative and that defendant had also told him that he was trying to get information about the school because he was considering transferring his son there. He stated that, after he arrested defendant, defendant asked him to go into his apartment to get defendant's seven-year-old son, who was inside. He testified that defendant told him, after he asked, that he had no guns in the apartment and that he did not see any in plain view when he entered.

¶ 5 The director of advancement, Monica Krysztopa, testified that she handles admissions, fundamental needs, and alumni relations at Keith. She stated that she had been at the school for a year and a half and that she fielded calls from parents looking to enroll their children at Keith. She testified that she returned to her office to a message from a man named Rory who asked her to return his call regarding admissions at Keith. She called the number left in the voicemail, and the individual who answered identified himself as defendant. Defendant stated that he had a son that he would be interested in enrolling at Keith. She stated that defendant then "immediately went into a battery of questions about the protocol at our school for handling things that were related to guns and shooting." She testified that he asked such questions as whether the secretary's desk had bulletproof windows and how prepared she would be "if he or anyone * * * arrived on our campus with guns." She testified that he also "mentioned * * * in passing that the United States was full of socialists and KGB members." He asked if the school followed truancy laws.

¶ 6 Krysztopa stated that defendant mentioned the mass shooting in San Bernardino, which she testified was a week prior to the call. She testified that defendant asked her if she knew the number of shootings or the success rate of shooters once they were on campus. She said that he told her that it would be important for the school to know the success rate when an armed individual was on campus. She stated that he asked her, "[I]s Keith prepared? You know San Bernardino had happened the week prior and were we prepared for that, that day had it happened at our school that day." The statement that stood out most to her was when he asked her if she "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?" She interpreted that question as asking her if she was prepared to have that blood on her soul or on her person. When asked to say exactly what defendant said about entering the school with a gun himself, as closely as she could, she testified that "[h]e said if he were to show up at the campus with a gun what would be the protocol of our school?" He asked, according to Krysztopa, whether the school gave teachers "PEZ dispensers to defend themselves" and what the students would think "of seeing a gun pointed in their teacher[']s face."

¶ 7 According to Krysztopa, he continued by asking "if teachers were prepared to have a gun in their face" and whether they carried guns. "[H]e talked about a number of guns and their success rate in kill." She stated that he asked her "how long it would take the police to get to Keith School should there be a shooting." Her "impression was, to be perfectly honest, that he was on our campus." She testified that she got that impression based on two specific questions: "the one about me being prepared to have the blood of the sacrificial lambs on my hands that day and if we were prepared to handl[e] something like San Bernardino that day. And he spoke of the woods around the campus." After refreshing her recollection with her notes, Krysztopa testified that 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 me as a school? How do we protect them from that?"

She thought that he "wanted to know if [she] would sniff the pillow of their innocence after they've been dead." At the end of the conversation, Krysztopa said that defendant asked if the conversation was being recorded. She said that she "was trying to be light" and told him that "we have copiers that don't even work in our school. I'm not recording this." She said that he "went on and said, again, asking about our protocol, how we handle shooters * * * and I was talking with him [when] he did say he had to go, the conversation was done and he hung up."

¶ 8 Krysztopa testified that, during the conversation, she texted the head of the school, telling her "[t]here's someone talking about guns and the safety of the school, call 911." Someone called 911, and the school went into a soft lockdown, which she described as a situation in which students were put into closed classrooms with an adult present to account for each student and determine a count of the entire student body. She stated that this was the only time the school had entered a soft lockdown in the year and a half that she worked there. With an officer dispatched to defendant's home and two officers on campus, she testified that, because it was close to dismissal time, they dismissed the students. Fifteen minutes after dismissal, the school sent a letter to parents informing them that a threat had been made without going into detail about the threat. She later clarified that she initiated the police contact for two reasons: (1) because she thought defendant was on the campus, which she posited would mean there was an active shooter on campus, and (2) because she did not know why defendant shared with her that he had been kicked out of Keith as a child, which led her to think that he was an active shooter on campus.

¶ 9 On cross-examination, Krysztopa agreed that the voicemail stated that defendant was interested in talking about admissions and potentially transferring his son to Keith. When she called him, he told her that his son was in second grade and that he was looking to transfer him from Rockford Public Schools. She testified that he mentioned "that he was concerned about the security protocols in the public schools." She did not know any other intention for the call than defendant's intention to transfer his son from the public school to a private school. She said that defendant never told her that he had guns nor did he say he was coming to the school with guns; rather, she agreed, "[h]e asked what would happen if someone came to the school with a gun." She stated that defendant did not make an immediate threat.

¶ 10 At the close of the State's case, defendant moved for a directed verdict on all counts. The trial court granted that motion as to the phone harassment charge but not the disorderly conduct or attempted disorderly conduct counts.

¶ 11 Defendant testified that his son was seven years old at the time of the call and that he was enrolled in second grade at a public school. He testified that he was concerned with security in the public school system and considered enrolling his son in "what [he] believed would be a privatized institution of learning where they weren't bound by budgeting restrictions used as an excuse not to protect our children." Keith was the first on his list, followed by two religious schools. He stated that he called Keith and received a call back from Krysztopa. He continued that he "asked [about] two things": "financial aid because I'm a single parent" and "the security protocol." Information about these two things, he said, was the purpose of his call. Regarding the security protocol, he...