On The Street Where They Live

The Vermont Supreme Court rejected challenges to the extension and modification of a stay away order directed towards the plaintiffs’ neighbor

The parties are longtime neighbors who live on the same street in Mendon, Vermont. Defendant owns a home on the street; he also owns a vacant lot next to the home of plaintiffs Swett and Earle.

A stay away order was accepted by stipulation in February 2021.

Thereafter the plaintiffs sought further relief

Following a hearing, the court granted plaintiffs’ request. It made the following findings. Before plaintiffs obtained stalking orders in February 2021, defendant repeatedly screamed profanities at plaintiffs Swett and Earle from his vacant lot. He told them he had “nothing better to do than to torture the fuck out of my neighbors!” On one occasion after an interaction with plaintiff Stake, defendant shot off over 100 rounds of ammunition on the vacant lot. He shot into a log pile between the open area of his lot and the Swett/Earle residence. Despite his denials, the court found that defendant was shooting in the direction of the Swett/Earle home to scare them.

 Turning to events after February 2021, the court found that defendant had been clearing the vacant lot for over a year. He said he was preparing to build something. Plaintiffs believed that defendant was purposefully using loud machinery on the lot for months on end to harass them. The court found that defendant intentionally parked his truck on dark mornings to shine his headlights into the Swett/Earle home to disturb them. It rejected defendant’s assertion that he was simply sitting in his truck reading and checking email at 6 a.m. in that location. Defendant also sat in his car in the road and stared at the Swett/Earle home.

In September 2021, defendant played an electronic game call of a rabbit in distress on the vacant lot for two hours in the late evening until the police arrived. Defendant testified that he did not consider the sound annoying and wanted to see what animals were around for hunting purposes. The court rejected these propositions as not credible and absurd. It found defendant clearly intended to annoy plaintiffs Swett and Earle.

A security camera captured another incident with plaintiff Stake. Defendant was operating an excavator on the vacant lot and as soon as plaintiff Stake walked by with his dog, defendant began screaming at the top of his lungs. Defendant got progressively louder and unmistakably angrier. He used words like “you have a fat ugly wife” as well as cruder comments about both Mr. Stake and Mr. Stake’s wife. According to defendant, he was not directing his words at Mr. Stake but just singing along to music and making up songs. The court rejected defendant’s testimony as entirely lacking in credibility. It found the anger in defendant’s voice unmistakable and found that defendant’s words sounded nothing like singing. When asked if he was singing in the recording submitted to the court, defendant acknowledged that he “was just yelling.”

The court also rejected defendant’s assertion that he was singing when he repeatedly told Mr. Stake that he “better get a gun, motherfucker” and told Mr. Stake and Ms. Swett to “go back to New Jersey,” where both were from. Defendant also shouted at plaintiffs with a megaphone, including in June 2021. He told Ms. Swett to “go back to New Jersey if you don’t like Vermont, you fucking bitch.” He stood on his adjoining lot and called Ms. Swett a “dirty bitch” and a “cunt.” Plaintiffs installed security cameras outside their homes because of their concerns about defendant. They were clearly afraid that his excessively angry behavior would escalate to violence. Mr. Stake, who resided primarily in New Jersey, came to Vermont less often because of defendant’s harassment.

The right to sing

Defendant maintained below that “[h]e was just happily singing to himself, making up his own lyrics to songs while listening to music” and “[h]e lacked the subjective intent to contact Plaintiffs in violation of the Stalking Order.

Rejected

Plaintiffs testified to the fear caused by defendant’s ongoing contact with them in the form of harassing and threatening songs. Defendant made crude and threatening comments to plaintiff under the guise of “singing.” The court reasonably concluded that a specific and definite restriction was required to prevent this type of behavior from continuing and to make it clear to defendant that this type of behavior would constitute a violation of the order. The clear prohibition “minimize[es] interpretation issues” and provides plaintiffs with “a measure of emotional security.” Id. The court did not err in including this restriction in its order.

Defendant’s right to enjoyment of the vacant lot

The court’s decision is grounded in its findings. Defendant was engaging in activities on the lot to harass and contact plaintiffs in violation of existing stalking orders, including parking with his lights shining in the Swett/Earle home at 6:00 a.m., playing an animal-distress sound for hours late at night, screaming expletives through a megaphone at plaintiffs while they ate dinner, and screaming crude and personal insults at Mr. Stake from the lot as he walked his dog on the road. Defendant continually made loud noise on the lot—leaving the alarm on his excavator to beep as he used the vehicle and banging on a metal drum—as often as every day. He had been working on the vacant lot for over a year. All plaintiffs expressed fear of defendant; Mr. Stake was visiting Vermont less because of defendant’s behavior. The court acted within its discretion in determining that limiting defendant’s presence on the lot to business hours, Monday through Friday, was necessary to protect plaintiffs. The limitation reduces defendant’s ability to use the lot as a place from which to harass and contact plaintiffs and provides plaintiffs a measure of safety and security during these periods and an ability to enjoy their own property. It reduces interactions based on “proximity,” with the hopeful goal of preventing any escalation to violence.

Oral argument linked here. (Mike Frisch)