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INTRODUCTION

From childhoods hour I have not been


As others were I have not seen
As others saw.
- Alone, by Edgar Allan Poe (Jan. 19, 1809 - Oct. 7, 1849)
Of course, every single child is unique. Good parents and astute teachers
know this well. Perhaps ironically, the reality is that many teenagers work to hide
this phenomenon as they struggle to fit in with their peers who sometimes have
zero tolerance for the perceived misfit. There are always a few, however, who
cant or wont mask their uniqueness but place it prominently on display. They do
this in varying ways on a scale that runs from laudable to intriguing to coy to
maddening to downright scary.
A persistent (though almost certainly untrue) story concerns how the
young Edgar Allan Poe got himself kicked out of the U.S. Military Academy. It is
said that, directed to appear for drill with his crossover cartridge belt and rifle, he
showed up adorned with these and nothing more. Edgar Allan Poe had other
ways of garnering attention and he certainly did as, from soon after childhoods
hour, his poetry and prose probed unexplored territories of the human psyche.
As we approach Edgar Allan Poes 200th birthday, it is fascinating to think
about how he might have appeared to his schoolteachers. A key part of the job
of the teacher has always been to encourage that creative spark that marks each
unique individual. These days, however, when school violence has become
while not common an undeniable and frightening fact of life, there are new and
unsought responsibilities thrust upon the teacher. What are the parameters of
this new vigilance that is called for?
In the 2008-9 mock trial case, we will examine this question by looking
through the eyes of the dedicated English teacher Tisby Hark and the heroic
coach Gymbo Spartan at what Principal Alix Talionis euphemistically calls the
events of January 20. Thats the day when Zak Nieman brought a loaded gun to
school. Should his teacher have seen red flags signaling the coming of that
fateful day and taken steps to prevent it or is the school merely using Hark as a
convenient scapegoat in order to cover up its own institutional shortcomings?
By the way, public school teachers in Washington State do all have certain
legal protections in their employment that were not granted to Tisby Hark in these
pages. Some legal liberties have been taken. Remember, this is a work of
fiction, and you shouldnt jump to conclusions about the state of the authors

sanity or learning based solely on what he has written. Now, if you know him and
have concerns, thats different...
In keeping with the themes of this case, you should also know that the
exercise of some creativity is certainly safe. Students should feel entirely free to
be creative in adding to Professor Posts examples of dangerous literature and
to Gymbo Spartans coach-isms.
The author would also like to thank Professor Steven Bauer, who teaches
creative writing at Miami University of Ohio (not Melpomene U.) for his insights
into all the characters in this drama and to Connie Butler for her creative artistry.
W.L.D.
william.downing@kingcounty.gov
August 2008
CASE WITNESSES:
For the plaintiff:
Tisby Hark: English teacher
Pat Nieman: parent of Zak
Norma(n) Post: noted author and literary critic
Verne Small: Zaks locker buddy
For the defense:
Alix Talionis: Principal of Cedar High School
Gymbo Spartan: physical education teacher
Dr. Jungian Schezz: psychologist, expert witness
Ruemore Gavinoo: classmate and neighbor of Zak
TRIAL EXHIBITS:
Exhibit 1:

Cedar High School Mission Statement

Exhibit 2:

excerpt from Teachers Handbook

Exhibit 3:

excerpt from Cedar H.S. Anti-Violence Policy

Exhibit 4:

page 5, The Tell-Tale Ringtone by Zak Nieman

Exhibit 5:

diagram of Cedar High School floorplan

Stipulations:
The following facts and circumstances are agreed upon:
Zak Nieman is now a patient in a locked psychiatric ward in St. Elizabeths
Hospital. He is unavailable as a witness due both to his lack of mental
competency and his restricted status.
All acts of Alix Talionis were done on behalf of, and as an agent of, defendant
Cedar County School District.
Prof. N. Post and Dr. J. Schezz are qualified, and shall be allowed, to testify as
expert witnesses.
The diagram of the floor plan of the school is an accurate depiction and, in fact,
all the other exhibits are as they appeared as of the date of January 20, 2009.

PLEADINGS

SUPERIOR COURT OF WASHINGTON


FOR CEDAR COUNTY
AT COLUMBUS
)
)
)
Plaintiff,
)
)
v.
)
)
CEDAR COUNTY SCHOOL DISTRICT, )
)
Defendant.
)
)
)

TISBY HARK,

NO.

09-2-06074-7 COL

COMPLAINT

I. PARTIES, JURISDICTION & VENUE


1.
Plaintiff Tisby Hark is a married person, residing in Columbus, Cedar
County, Washington.
2.
Defendant Cedar County School District is a governmental entity located
in Cedar County, Washington.
3.
This Court has original jurisdiction over this matter and venue is proper
pursuant to R.C.W. 4.12.020 because the cause of action occurred in Cedar
County, Washington and pursuant to R.C.W. 4.12.025 because the defendant
resides in Cedar County, Washington.
4.
In pursuing this accelerated action, plaintiff expressly waives any claim to
damages (other than back pay) but simply seeks immediate reinstatement.
II. CAUSES OF ACTION
1.
FIRST CAUSE OF ACTION: BREACH OF EMPLOYMENT CONTRACT.
On or about January 22, 2009 the Cedar County School District, acting through
its agent Cedar High School Principal Alix Talionis, wrongfully terminated the
employment contract of the plaintiff.
2.
The aforementioned acts of defendant were done in direct violation of the
terms of enforceable oral and written agreements entered into between the
defendant and plaintiff and were, therefore without legal authority and should be
declared void and of no effect.

3.
SECOND CAUSE OF ACTION: WRONGFUL TERMINATION IN
VIOLATION OF PUBLIC POLICY. On or about January 22, 2009, the defendant
Cedar County School District, acting through its agent Cedar High School
Principal Alix Talionis, wrongfully terminated the employment contract of the
plaintiff for the reason that plaintiff was actively engaged in providing for the
education of a particular student by nurturing said students individual talents for
creative thought and expression and effective communication.
4.
The aforementioned acts of defendant were done in direct contravention
of clearly mandated public policies including the Washington Constitution, the
Revised Code of Washington and the Cedar High School Mission Statement
officially adopted by the Cedar County School District. See, attached addendum
to this pleading.
5.

Accordingly, said act of termination is void and of no effect.


III. PRAYER FOR RELIEF

WHEREFORE, plaintiff Hark requests entry of declaratory judgment against


defendant Cedar County School District declaring void and of no effect its efforts
to terminate plaintiffs employment and directing plaintiffs immediate
reinstatement.

Respectfully submitted,
/S/
______________________
_________, Attorney
Verified as true,
/S/
______________________
Tisby Hark, plaintiff

Hark v. Cedar County School District


ADDENDUM TO PLAINTIFFS COMPLAINT
Washington Constitution, Article IX, section 1:
It is the paramount duty of the State to make ample provision for the education
of all children residing within its borders, without distinction or preference on
account of race, color, caste or sex.

Revised Code of Washington, 28A.150.210:


Additionally, the state of Washington intends to provide for a public school
system that gives all students the opportunity to achieve personal and
academic success To these ends, the goals of each school district shall be
to provide opportunities for every student to develop the knowledge and skills
essential to:
(1) Read with comprehension, write effectively, and communicate successfully in
a variety of ways and settings and with a variety of audiences;

(3) Think analytically, logically and creatively and to integrate different


experiences and knowledge to form reasoned judgments and solve problems.
Cedar County School Districts Mission Statement for Cedar High School:
The Cedar High School community seeks to provide outstanding
educational opportunities so that all students may reach their intellectual,
creative, personal and social potentials. The school is committed to the notion
that creative expression and individual talents are best developed through the
nurturing of innovation and risk-taking in a safe and supportive environment in
which each student feels valued and respected.
We will endeavor to produce lifelong learners who will think logically,
creatively and effectively for the benefit of themselves and their society. While
ever in pursuit of excellence, we recognize that frequently the highest
achievement lies in the quest itself.

SUPERIOR COURT OF WASHINGTON


FOR CEDAR COUNTY
AT COLUMBUS
TISBY HARK,

)
)
Plaintiff,
)
)
v.
)
)
CEDAR COUNTY SCHOOL DISTRICT, )
)
Defendant.
)
)
)

NO.

09-2-06074-7 COL

ANSWER

I. PARTIES, JURISDICTION & VENUE


1.
Defendant Cedar County School District agrees with plaintiffs description
of the parties, with the bases for jurisdiction and venue and the conclusions that
jurisdiction and venue are proper.
II. ANSWER
1.
ANSWER TO PLAINTIFFS FIRST CAUSE OF ACTION: BREACH OF
EMPLOYMENT CONTRACT. Defendant Cedar County School District denies
plaintiff Harks claim of breach of contract in that there was no written contract
and the oral contract was terminable at will. It was terminated by the will of the
defendant School District.
2.
ANSWER TO PLAINTIFFS SECOND CAUSE OF ACTION: VIOLATION
OF PUBLIC POLICY. Defendant Cedar County School District denies the
allegation that said termination violated public policy and, in point of fact, asserts
that doing so well served vitally important public policies.
III. PRAYER FOR RELIEF
WHEREFORE, defendant Cedar County School District requests entry of
judgment against plaintiff Hark on all of plaintiffs claims and, further, seeks a
declaration from the Court that the termination of the employment relationship at
issue was lawful and is of full force and effect.
Respectfully submitted,
/S/
______________________
__________, Attorney

JURY INSTRUCTIONS

Special Instructions for Hark v. Cedar County School District

No. ___1__
In this case, the plaintiff Tisby Hark claims that the defendant Cedar
County School District breached an employment contract in terminating Harks
employment and further claims that this discharge should be declared void as
being in violation of public policy. If prevailing on either claim, the plaintiff will be
reinstated as a teacher; if not, the discharge will be final. As to each of these two
claims, the plaintiff bears the burden of proving the essential elements of the
claim by a preponderance of the evidence. The defendant Cedar County School
District denies both of the claims.

No. ___2__
A contract may be oral or in writing. It is a legally enforceable set of
promises. Such a promise is an expression that justifies the person to whom it is
made in reasonably believing that a commitment has been made that something
specific shall happen or not happen in the future.
In order for a promise or set of promises to be legally enforceable, there
must have been mutual assent. In order for there to be mutual assent, the
parties must agree on the essential terms of the contract and must express to
each other their agreement to the same essential terms.
A duty of good faith and fair dealing is implied in every contract. This duty
requires the parties to cooperate with each other so that each may obtain the full
benefit of performance. However, this duty does not require a party to accept a
material change in the terms of its contract.
The failure to perform fully a contractual duty when it is due is a breach of
contract.

No. ___3__
An employment contract for an indefinite duration is an at-will contract. It
may be terminated by the employer or the employee at any time, with or without
cause.

10

No. __4___
A narrow exception exists to the terminable-at-will doctrine. An employer
is not free to discharge an at-will employee where the discharge would
contravene a clear mandate of public policy. To establish that this has occurred,
the employee must prove each of the following propositions:
a. the existence of a clearly mandated public policy;
b. that discouraging the conduct in which the employee engaged
would jeopardize that public policy;
c. the employees public-policy-linked conduct caused the
dismissal; and
d. there was no overriding justification for the dismissal.

No. __5___
A terminable-at-will employment relationship can, under certain
circumstances, be modified by the terms of an employee policy manual. A policy
contained in an employee manual, promising specific treatment in specific
situations, may be enforceable if the employee has justifiably relied upon the
promise in remaining on the job. In effect, it becomes a part of the employment
contract.
Oral representations, patterns of practice and whether or not there was a
conspicuous disclaimer are factors to be considered in determining whether any
such reliance was justifiable.

No. __6___
To establish a claim for breach of an employment contract, the employee
must prove each of the following three propositions:
a. The employer had made a promise that was a part of the employment
contract either because:
1. It was mutually assented to; or
2. It had become a part of the contract through the employees
justifiable reliance;
b. The employer failed to keep the promise; and
c. The employee was harmed by this breach.

11

SUPERIOR COURT OF WASHINGTON


FOR CEDAR COUNTY
AT COLUMBUS
TISBY HARK,

)
)
Plaintiff,
)
)
v.
)
)
CEDAR COUNTY SCHOOL DISTRICT, )
)
Defendant.
)
)
)

NO.

09-2-06074-7 COL

VERDICT FORM

We, the jury, answer the questions of the Court as follows: (If you answer
yes to either question, the plaintiff will be reinstated as a teacher; if you answer
no as to both, the discharge is final.)
QUESTION NO. 1: Has the plaintiff Tisby Hark proven, by a
preponderance of the evidence, the claim of breach of contract?

_______

QUESTION NO. 2: Has the plaintiff Tisby Hark proven, by a


preponderance of the evidence, the claim of discharge in violation of public
policy?
_______

___________________________
Presiding Juror

12

PRETRIAL MOTION

13

SUPERIOR COURT OF WASHINGTON


FOR CEDAR COUNTY
AT COLUMBUS
TISBY HARK,

)
)
Plaintiff,
)
)
v.
)
)
CEDAR COUNTY SCHOOL DISTRICT, )
)
Defendant.
)
)
)

NO.

09-2-06074-7 COL

DEFENDANTS MOTION
TO EXCLUDE EVIDENCE
OF SUBSEQUENT
REMEDIAL MEASURES

The defendant Cedar County School District anticipates that the plaintiff
will seek to present evidence at trial concerning measures taken by the Cedar
High School administration subsequent to the occurrence that gives rise to this
lawsuit. These measures were taken by the School in good faith in connection
with its ongoing obligation to provide a safe and healthy school environment.
The plaintiff will, it is believed, seek to present these measures as an admission
by the School that it had somehow been negligent or culpable in creating some
deficiency in the earlier circumstances. The School District denies this and, in
any event, hereby moves that this improper evidence be excluded at trial.
This request is based on the well-established principle that evidence of
remedial measures taken by a defendant subsequent to a plaintiffs injury are not
admissible to establish negligence or culpability. See, Evidence Rule 407. While
Washington courts have not yet had occasion to apply this rule in precisely this
setting, the reasons for the rule strongly support this request. These include:

To encourage employers, manufacturers and public entities to


always be willing to change policies and procedures to make them
safer without fear that their actions will be used against them; and
To prevent the introduction of evidence that has little probative
value and that may be confusing to the jury and unfairly prejudicial
to the defendant.

Therefore, the defendant respectfully asks that its motion be granted and
that the Court exclude or restrict this evidence of subsequent remedial measures.
Respectfully submitted,
Counsel for Defendant

14

AUTHORITY FOR PRETRIAL MOTION


Evidence Rule 407: Subsequent Remedial Measures
When, after an event, measures are taken which, if taken previously, would have
made the event less likely to occur, evidence of the subsequent measures is not
admissible to prove negligence or culpable conduct in connection with the event.
This rule does not require the exclusion of evidence of subsequent measures
when offered for another purpose, such as proving ownership, control, or
feasibility of precautionary measures, if controverted, or impeachment.
(Note: The Federal Rules of Evidence were first adopted in 1975 and, based
upon them, the Washington Rules of Evidence were adopted in 1979. All of the
rules are based upon the common law developed over many years by judges like
Baron Bramwell and Lord Chief Justice Coleridge to promote sound social
policies as well as the fairness of trials. For present purposes, the rule on
subsequent remedial measures is essentially the same under the federal rules,
the Washington rules and the mock trial rules.)

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PERTINENT CASE LAW (as edited by the case author)


Columbia & Puget Sound Railroad Company v. Hawthorne, 144 U.S. 202
(1892)
(Willard Hawthorne was injured when a pulley fell on him as he was operating a
trimmer at a saw mill. Had the pulley been properly secured, the accident would
not have happened. At trial in Washington Territory, the judge allowed the jury to
hear that after the injury the company made just such a change. The plaintiff got
a sizeable judgment in the amount of $10,000 and the company appealed all the
way to the United States Supreme Court which issued this decision.)

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Banks v. Seattle School District, 195 Wash. 321 (1938)


(Fourteen year old Nancy Banks was a student at John Marshall Junior High
School in Seattle. In her arts and crafts class, she was learning to operate a
foot-powered printing press called Old Reliable. She was injured when her foot
got caught between the uprising treadle and the cross bar. In her suit for
damages, the jury was told that, after the accident, the school placed a guard on
the treadle. She won the case and the judgment was affirmed on appeal with
little analysis given of the subsequent measures issue. However, Justice John
Robinson wrote a separate opinion to express his views in support of the school
district.)
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Westmoreland v. CBS Inc., 601 F. Supp. 66 (Southern District N.Y., 1984)


(General William Westmoreland sued CBS for damages after the network had
run a television show criticizing his role in the Vietnam War. The trial judge made
this ruling regarding the admissibility of an internal investigation by CBS.)
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Rocky Mountain Helicopters, Inc. v. Bell Helicopters, 805 F. 2d 907 (Tenth


Circuit, 1986)
(Rocky Mountain was using a Bell helicopter in a logging operation in Montana
when it crashed killing both the pilot and copilot. Its theory was the accident was
caused by fatigue failure of the trunnion, the part of the helicopter that connects
the mast with the rotor blades. Bell appealed a jury verdict in favor of Rocky
Mountain.)
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Martel v. Massachusetts Bay Transportation Authority, 525 N.E.2d 662


(1988)
(Mary Martel was run over by a city bus after she chased it from a bus stop and
banged on the door as it was making a slow turn. She sued for damages and
lost at a jury trial. She then appealed.)

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Dennis v. County of Fairfax, 55 F. 3d 151 (Fourth Cir. 1995)


(Latham Dennis brought a racial discrimination suit against his employer, a
Virginia county. Through an internal grievance process, he had been successful
in getting his performance reviews upgraded but he remained unhappy with other
aspects of his treatment. Part of the claim he wished to present included the
argument that corrective actions by the county demonstrated that there had been
discrimination in the initial evaluations. The trial court dismissed his claim and,
on his appeal, the appellate court made these observations.)
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Hyjek v. Anthony Industries, 133 Wn. 2d 414 (1997)


(Snowboarder Gary Hyjek sued the manufacturer of a Dan Donnelly XTC
snowboard manufactured by K2, a subsidiary of Anthony Industries. He was
injured in 1991 as a result, he claimed, of a defective binding design. In 1992,
K2 began using a new binding system using inserts molded into the board into
which the bindings would be firmly fixed. Evidence of this design change was
excluded at trial, the defendant won and Mr. Hyjek appealed. This gave the
Washington Supreme Court an opportunity to decide whether ER 407 applied in
a product liability case in which negligence, per se, is not in issue.)
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WITNESS STATEMENTS

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STATEMENT OF TISBY HARK


My name is Tisby Hark and teaching high school English has been my
vocation and occupation for the past eight years. For most of the first half of the
2008-9 school year, I taught English and creative writing at Columbus High
School. Im not from this locality originally, having grown up in Buffalo, N.Y. That
is where I went to high school and then graduated from the State University
there.
I then went on to receive a masters degree in creative writing and teaching
from Melpomene University in the Midwest. After I had taught for a number of
years in Galva, Illinois, my spouse, who develops computer games, wanted to be
closer to the software industry and so we moved here to Washington State. I
was disappointed to leave Illinois (I think I would have been named Department
Chair in another two years) but this was an important move for our family. I am
quite proud of my spouse who was one of the developers of the adult computer
games Urban Carnage and Bloody Encounter. Both of these are among the
top 100 all time sellers.
Honestly, because of the royalties that pour in from those games, I really
dont have to work. I teach high school out of love and for the unparalleled
satisfaction that comes from seeing the personal growth that can take place in a
student just between one September and the following June. Of course, if Im
not in the picture come June, I lose out on this just as my students (and Im
hoping this doesnt come across as egotistical) will lose out on whatever I can
give them.
I was especially happy to move to Washington where the state constitution
declares education of children to be the paramount duty of the state and where
the legislature has given the force of law to my goal of teaching kids to think
creatively and write effectively in different ways and for all kinds of audiences.
And I was even happier still to land a job with the Cedar County School District
whose Mission Statement for Cedar High emphasizes creativity, innovation and
risk-taking by the students.
When we moved here last August, I put in my application with the Cedar
County School District but it was too late to land a contract for the new school
year. In mid-September, I got lucky. Just after the school year had started, an
English teacher left unexpectedly and I got a temporary hire for the rest of the
school year with the promise of a contract for the following year assuming all
went well. When I was hired, I was given a copy of the Teachers Handbook
and I relied upon it throughout my time at Cedar High School. I looked to it for
procedures to follow for arranging substitutes, for ordering supplies, for planning
field trips and so forth. Along with these responsibilities, I always assumed I had
all of the rights described in that handbook. The Handbook starts out with some
almost comical language that is a cross between legalese and bureaucratese but

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that tortured sentence does manage to convey that it applies to all teachers and,
since that is what I am, it never occurred to me that it wouldnt apply to me.
Just as it is for a transferring student, it wasnt easy for me adjusting to a
new school. All the other teachers seemed to have their established dining
partners in the faculty lounge and it was clear that I was expected to stay quiet at
faculty meetings for at least my first year. I read alone while eating my yogurt
and carrots during the lunch period and I sat quietly off to the side while others
hotly debated such topics as to what extent the Curriculum Policy Committee and
the Curriculum Content Committee should have overlapping memberships or the
Technology Committees proposals for the use of software to limit students
access to harmful information (whatever that is). Still, I enjoyed Columbus and
the students I considered myself very lucky to have.
Or, at least I enjoyed enough of them to make it rewarding. A pretty high
percentage of high school kids are sheep, of course, reluctant to take a risk of
failure and end up embarrassed. Of course, this risk-taking is just what creative
writing is all about. To be a writer, one must be willing to expose the inner self in
ones writings and this opens up a great risk of criticism by others. Harsh
criticism of ones writing may wound the pride; harsh criticism of the writers
exposed essence can cut much deeper. A truly creative writer must be willing to
face up to this risk and not let the risk intimidate them into silence.
One of my composition and creative writing students was Zachary
Nieman and Zak was just the kind of project a teacher lives for. I never saw
Zachary as a zero as the other kids did. A blank page maybe or an empty
vessel eager to be filled with learning. He was actively seeking, experimenting,
trying things on, exercising his healthy curiosity and imagination. In this
exploratory stage of his development, it is natural that he would pass through
many phases none of which should define him. He may have had a temporary
interest in the macabre and the gruesome but thats not uncommon among
adolescents and anyone with any discernment could see there was so much
more to Zak than that.
So far in the 2008-9 school year, the students had done four composition
assignments. The first was in September and it was sort of a get acquainted
piece. I asked them to write something autobiographical discussing how they
viewed themselves in the context of their family histories, traditions, ancestors,
etc. I dont recall much in the way of specifics but I do recall that Zak wrote about
a beloved Great Uncle Fred who had apparently done something really
stupendous. Whatever it was, Zak felt that Uncle Fred had changed the course
of history and gotten his name known from coast to coast. This ancestor had
really become a somebody and Zak was determined to become somebody too.
My notes indicate I gave Zak a C+ on this assignment. His piece was strongly
felt he put a lot of himself into it and I encourage that but I felt he left out
some important details like, for instance, just what it was that Uncle Fred did.

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I dont have the paper itself now. The class put them all into a time
capsule that can only be opened at the end of the school year in June. At that
time, the idea is, the students can see if either or both of their self-image and
their writing ability have changed over the course of the year. If Im doing my job
as I hope, there will be positive growth in both categories and that is a triumph
we should all celebrate together.
The second composition assignment was in October, around the time the
election season was heating up. There was no written product to this
assignment, rather each kid had to choose a debate proposition and then
assemble and present an oral argument for the side that he or she chose. I told
the students they didnt have to believe in the position they were arguing and, for
pedagogical reasons, sometimes its best when they dont. The proposition that
Zak chose was The sword is mightier than the pen.
I suppose, in hindsight, one could have the impression he was advocating
violence but that misses the entire point of the assignment. This was like debate
or mock trials that kids might do extracurricularly I wasnt paying attention to
the substance or content of what he was saying, but only to the way he put
together his arguments and presented them. And Zaks argument was very
logically constructed as it cut a clean swath through history from the
Peloponnesian Wars (whenever they were) to the present time. Of course,
public speaking is not Zaks strong suit but I wanted to give him positive strokes
for doing as well as he did. He would have gotten higher than the B- he received
if he hadnt frozen up in silence when the very first question from the audience
was a bit confrontational.
He did have a prop for his presentation and, unfortunately, I ended up
taking it away from him. It was something that looked like a ballpoint pen but
when you pulled it apart, it was actually a miniature sword and a sheath. I was
OK when he opened it up with a flourish during his talk. I think it was when he
was demonstrating how you could slice off one letter from WORDS and
reposition it and you would have a SWORD. A sword can do that to words but
words cant do that to a sword was his point. Although it was only plastic, the
way it cut the paper told me it was pretty sharp and I got a little concerned
especially when I saw how he was staring at it and gripping it tightly when that
question got asked. I was aware of the school policy prohibiting weapons and so
at that point I decided Id confiscate it for safekeeping although I certainly didnt
consider it to be a weapon. It was a toy.
I returned the plastic sword-pen to Pat Nieman at our parent-teacher
conference just before Thanksgiving. Being a single parent, Pat had brought
Zaks grandmother along too and, very thoughtfully, they presented me with a
box of lovely pomegranate-flavored dark chocolate squares (my favorites!) I
recall we had some interesting discussions. They told me of the challenges in

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Zaks life and how he was sometimes close to the emotional edge. They
expressed the hope that I would continue to support Zak and help him to steer
clear of trouble. I promised to do all I could.
In our discussions, I commented that Zak had been refuting that old pen
is mightier proposition of Edward Bulwer-Lytton. One of them pointed out that
before that, Thomas Jefferson had given encouragement to Thomas Paine,
saying Go on doing with your pen what in other times was done with the sword.
Then, the other one corrected the first one saying No, dear, it was Rosencrantz
in Hamlet who first conveyed the thought in the line many wearing rapiers are
afraid of goosequills. I really dont remember which of them this was -- and
maybe it was Guildenstern who said the line -- but I know there was a little
competitiveness and it felt a little tense between the two of them and, being
conflict-averse myself, I changed the subject. I think I said how wonderful it was
that Zak had two such lively minds to challenge him at home.
The third and fourth composition assignments were tied together and
involved the first creative writing. The students had to choose an American short
story writer and do an analysis of one of that writers stories and then write an
original story of their own in the style of that writer. The reports were done on
December 12 and the original stories were due soon after the holiday break. I
wasnt surprised that most copied Hemingway or Steinbeck or Flannery
OConnor. Zak chose Edgar Allan Poe. I dont recall which story he chose to
review; it could have been The Black Cat. I don'
t still have the paper since it
was returned to him. I do recall that he was very enthusiastic about the story and
my records show that I gave him an A on that part of the project.
A couple times in the fall of 2008, Zak talked about Edgar Allan Poes
200 birthday coming up on January 19, 2009. He said he wanted to celebrate
that occasion in a very special way. I do recall our conversation because it was a
little odd. He said I want everyone about me to feel just as rabid as Poe. I
corrected him, saying You mean you want everyone to feel just as rabid about
Poe as you? As young people today so often do, he responded Whatever.
th

Of course, I studied early American literature but I personally found


someone like Hawthorne (with his poignant tale of the ostracized Hester Prynne,
for instance, who was used as a scapegoat by the hypocritical establishment)
much more illuminating than the dark, brooding Poe. I didnt even know until
recently that some people now say that Poe died of rabies.
Anyones love of any literature should be nurtured. Thats my firm belief
and thats my job. So, I got kind of excited and told Zak Id love to help him throw
a Poe Party. I did point out that January 19, 2009 was MLK Day and so wed
have to do it the next day. He made it clear that he didn'
t want my help so I said
OK, fine, do it your way, have a blast. As the holiday break came and went, I
heard no more about it and before long Id forgotten it and assumed that he had

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too. In fact, I thought the whole Poe phase might have passed. I saw him
carrying books by Baudelaire, Mary Shelley and Stephen King.
Then, on January 9, Zak turned in The Tell-Tale Ringtone. This was his
story written in the style of Poe and it was exceptionally well crafted. He took
Poes tale and placed it vividly in a contemporary high school setting. Consistent
with the assignment, he faithfully adhered to the structure and tone of the original
story. He received an A+ for this excellent work. After grading it and writing a
brief comment, I returned it to him. I stand by my comment. In it, I wanted not
only to praise his good work but also to continue my work toward winning his
trust so that I could be in a position to steer him in the right direction in the
months ahead. The story was fictional, for goodness sakes. Zak had no more
intention of hacking up his principal and stuffing him in his locker than Poe did of
hiding that old mans body under the floorboards.
Tuesday January 20 began as a typical day. I saw Zak in my class in
Room 130 during 1st period but he was in one of his quiet and withdrawn moods
and I saw nothing out of the ordinary. The class discussion concerned Zora Neal
Hurston and Zak evidently had nothing to contribute. I was thinking about Poes
200th birthday but I was not inclined to raise the subject myself since hed given
me such a cold shoulder about it before. I waited for him to say something but it
seemed that he had forgotten all about it. When the class ended, I assume he
gathered up his books and trudged on out with the rest of the students. As I say,
there was nothing out of the ordinary.
I couldnt see him but I now know that Zak was at the center of the clump
of police officers moving from the school toward their patrol car in the middle of a
crowd at about 10:30. I had just made myself a cup of hot tea and was planning
to enjoy my open third period (10:15-10:55) when I heard the chaotic shouting
and running in the hall. I went into the hallway to look but didnt get close enough
to see anything. I have been told that Zak is said to have brought a gun to
school but I have absolutely no personal knowledge of this.
On Wednesday, the newspapers were full of calls for the school
administration to get to the bottom of what had happened and take steps to see
that it never happened again. I could see that the school was going to take some
lumps because its just human nature for people to want to blame someone
beyond the kid in this situation. I never envisioned that I was about to become
their scapegoat.
On Thursday morning, I was called into Principal Talionis office and told I
was being let go. Someone else was there from the District and they told me
they didnt need to give me any reason for my firing but that it was because I had
not prevented Zak from doing what he did. The police department had
apparently found some papers when they searched Zaks room and had

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interviewed his classmates and family members. I tried to protest but I could see
that the decision had been made and I was to be the sacrificial lamb.
I certainly had no idea that Zak would ever do anything like what he did.
There was nothing in his words or acts during the previous week that presented
any sign of imminent harm. Sure he had his idiosyncrasies and was something
of a loner but nobody could have seen this coming. It makes me wonder what
happened to him over that weekend.
Kids can be rough on each other (Gymbo Spartan is right about this).
That is one reason I didnt want to turn Zak over to the administration after the
silly pen/sword incident. He was already seen as an outcast or misfit and if the
school seemed to confirm that view by forcing him into some kind of special
counseling, things would only get worse for Zak. I did not want to be responsible
for stigmatizing him as someone likely to engage in violent behavior. That would
have destroyed our relationship and any chance I had for helping him.
I was fired for doing my job. It was my job to help Zak learn to think
creatively and to express himself effectively in writing. For him to accomplish this
required that he, like others his age, take some risks. My goal was to support
him by nurturing this risk-taking and I was not about to see him punished for
doing exactly what he was supposed to be doing in my class. His Poe-inspired
story was an excellent piece of work.
While artistic expression is to be encouraged, of course I agree that
students engaging in violent or threatening behavior is an entirely different
situation and calls for teacher intervention. For example, if I had personally
witnessed the bullying behaviors to which I later learned Zak was subjected to, I
would have gladly reported the offenders and seen them suffer the
consequences of their acts.
When I was fired, it was done without so much as a warning. I had
understood and expected that I was entitled to progressive discipline. If it were
pointed out to me that I had done something wrong, and then I repeated that
mistake, that would be a different situation. It isnt fair that I was canned on the
spot.
By the way, I didnt have any idea who Leon Czolgosz was or what aliases
he used; I barely know who William McKinley was. And although I lived in
Illinois, I dont know anything about Lincolns assassination. If Zak had some
assassination fascination, I certainly was not aware of it. His history teacher
would be the one in a position to have noticed this but Prof. Fether, like Gymbo
Spartan, is on the good side of Principal Talionis and the School Board while Im
just something the tempest tossed up on their Plutonian shore. Its easy and
convenient for them to just try to toss me back. Well, because of my dedication
to students like Zak, Im not about to make it easy for them.

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STATEMENT OF PAT NIEMAN


My son Zak is in a safe place now. No one can harm him where he is.
And, as everyone also seems to insist on saying not that I ever thought such a
thing was possible nor can he harm anyone else.
The doctors at St. Elizabeths have told me that he should be back home
where he belongs very soon. Since that one isolated episode whether it was of
potential violence or just exceedingly poor judgment -- was so out of character
and so impossible to see coming, they hope to quickly get him back on the firm
emotional ground he always occupied.
Im sorry if Im getting ahead of myself. Its because Im focusing all my
energies on the future right now. I dont believe its all that productive to look
backwards. Ive pledged that from now on, everything that I can do for Zak, I will
do for Zak.
Since he was three years old, I have had sole responsibility for raising Zak
and though it hasnt always been easy, Ive done my level best. In 1994, my
spouse just flat disappeared. Whether it was foul play or simply a case of
someone deserting all their life and family responsibilities, we dont know and
may never know. (Again, I ask, does it help to look backwards? I dont think so.)
In any case, its been just Zak and me since that time although when my mother
is home from her travels, she stays with me and helps out. We run a successful
import-export business based in South Columbus; I run the home office while she
is the international buyer and customer service rep.
No question Zak was never the most socially adept child. He had some
insecurities no doubt due to being so abruptly and inexplicably abandoned by a
parent. Still, hes always been bright and possessed of the inner strength to
pursue his own interests without feeling bound by peer pressure. Its true I
havent always known just what those interests were because Ive been quite
busy with my own life, but mostly because hes a very private individual and I
havent wanted to pry.
Either because of the way he is or else the way kids are or, most likely,
some of both, Zak was bullied a lot at school. Kids liked to pick on him and tease
him and I know he suffered inside because of this although he tried not to show
it. I know they all called Zak Zero Ive heard them doing it in that mocking
tone kids use when they want to sting. They hit their target. Zak (who may be
many things but is not a zero) was deeply hurt by it. Maybe this made him
retreat even further into himself and his own world and maybe that made things
worse for him.
This isnt something he talked about but when he would get bruised up
playing murder ball at school, hed have no choice but to tell me what happened.

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He said they called him victim one and always went after him with a particular
vengeance. Other times, kids would do things like spilling day glo paints on his
favorite black Metallica watch cap. On another occasion, in biology class, a live
frog ended up in his shirt and he mentioned that Rue Gavinoo was among the
half dozen kids responsible. And, in math class, every time the answer was
zero, half the class would shout out Nieman!. Each time something like this
happened, Id either call Principal Talionis or leave a detailed message at the
office.
Starting Thursday January 15, Zak was helping out the Gavinoos by
taking care of their pit bull while they were out of town for a week. They are the
most horrid creatures and I dont know how anyone can stand them but Zak
somehow didnt seem to mind. I am speaking, of course, of the breed of dog and
not the Gavinoos although I have to say Im not too crazy about them either.
They always struck me as a rough kind of people who live their lives carelessly
and then go howling to the moon. That old car on blocks in their side yard, with
tall grass all around it, is the neighborhood eyesore.
Everyone knew Mr. Gavinoo was a gun nut who kept an arsenal in that
house. Zak had seen this and was outraged over it. He had told me recently
that Mr. Gavinoo kept illegal firearms in the house and someone should do
something about it.
I dont know how Zak spent that weekend. Often, even while he was at
home, we were like ships passing in the night. He did his thing and I did mine. I
know he came home sometime on Monday afternoon but I was at work getting a
shipment ready to go out in the morning. Im pretty sure I didnt see him either
that evening or the next morning.
The first I heard about what happened was on Tuesday afternoon when I
got a call from someone who had heard on the radio that there was some
incident of school violence at Cedar High. I kept on working (it was an especially
busy time for me just then) and a half hour later a school counselor called me
and told me Zak was at the hospital getting his shattered wrist patched together.
I was told I couldnt see him yet since he was under armed guard because of
what hed done. I tried to find out what that was supposed to mean but she
wouldnt tell me. I went straight home then and was surprised to find the police
were there.
And we havent been able to learn much or to see Zak much since then
either. When we are allowed to visit him, its only for a few minutes to assure him
of our love and support. Besides his broken wrist, he suffered several bruised
ribs and a concussion. Hes heavily sedated and under close observation at all
times. Weve been forbidden to talk to him about what happened and I dont
think anyone has sorted it out yet.

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Its absurd to blame Tisby Hark for what happened. I only met Tisby Hark
that one time. It was at the parent-teacher conference last fall. We had a good
discussion of the work Zak was doing in and out of class and the progress he
was making. I really hadnt been aware of what writing Zak had been doing and I
dont remember now what I was told that evening except that it was all very
positive. Tisby was very supportive of Zak and was doing everything possible to
help him develop his talents academically and come out of his shell socially. Its
rare anywhere and especially at Cedar High to find a teacher who truly cares
so much about a students personal growth. I havent seen it before. I believe in
letting the teacher do their thing and not butting in. Tisby was definitely a positive
influence in Zaks life and for that I can only say Thanks.
Hark did return to us a little plastic trinket or knick-knack that Zak had
brought to school and that was taken away from him. It was a ballpoint pen with
a little toy sword inside it, a souvenir of someplace or other I cant recall, maybe a
French castle. When I got it home and was looking at it, the little pretend blade
snapped right off in my hands. I threw it all in the trash. I only realized later that I
had cut my finger with it ever so slightly no more than a paper cut really.
There were no weapons at all in Zaks room when the police came with a
warrant and searched it on the afternoon of January 20. All they took was some
harmless papers. The way this has all played out, Im surprised they didnt seize
the picture of Edgar Allan Poe Zak had taped up on his wall and that I just
noticed the other day for the first time.
I understand peoples need, when something bad happens, to try to find
someone to blame. It was a very bad thing that happened at school on January
20 but it most definitely was not Zaks fault. I if were to sue someone for the
physical and emotional damage done to my son (a course of action I have not
entirely ruled out), I can see much better candidates than Tisby Hark.
If I were to blame anyone for what happened, it would certainly be the
school district for allowing the bullying of Zak to go unchecked for so long.
Anyone would crack under pressure like that. The school administration was
quite aware of the situation because I had shared my concerns with Principal
Talionis and been told the school knew about Zaks situation and were keeping
an eye on him. Somehow, that didnt make me feel a lot better at the time and
now I can see they always looked at him as a problem and not a victim. From
top to bottom, everyone at Cedar High (other than Tisby Hark) was quick to judge
Zak and they judged him harshly. With their intolerance, the whole situation was
really of their making from the start and, at the end, there was absolutely no need
to rough him up the way they did.
A reporter with the Cedar Chronicle contacted me on the evening of
January 20. I told her all about how Zak had been bullied at school and how the
administration had failed to do anything about it. Not only was I quoted

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extensively in one of the stories that ran the next morning but this information
also made its way onto the editorial page. The editor wrote: If accurate, the
allegations that the school had a history of condoning bullying would mean that
the school itself would bear a large measure of responsibility for the near tragedy
that occurred yesterday.
And, if I were to want to spread the blame even further, I cant forgive the
Gavinoos for allowing Zak easy access to a lethal weapon. Whatever Zak might
have been thinking on January 20, whatever he might have written in the past,
none of those thoughts or those words could hurt anyone. Without that gun, hes
just a harmless kid working his way through a phase.
Zak was in the middle of what, for him, was a good year and I give Tisby
Hark a lot of the credit for this. He may not have been there yet but he was
getting closer to fitting in academically, socially and emotionally. I cant tell you
what point he was wanting to make that day in January but I can tell you there
was zero chance he was going to hurt anyone.

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STATEMENT OF NORMA(N) POST


As I cast my eyes back over the sinuous road that has been my literary
career, I would say it all began when I was an undergraduate at San Francisco
State and I had a story accepted for publication in The Haymarket Review a
quarterly politico-literary magazine. Although I now can see it was a perfectly
god-awful piece of writing, full of cardboard stereotypes of noble laborers and
merciless strike-breaking bosses and much too heavily influenced by Steinbeck
and the Russians, my head is held high. Before all the world, I could and did
then proclaim: I am a writer! And this noble calling (together with a little teaching
in order to keep the wolf from the door) has been my life since then.
Over the course of my career, I have published a plenitude of short
stories, essays, novels, works of criticism and cultural observation and even a
couple of soul-baring poems. In between, I have been a writer-in-residence,
lecturer, instructor and, finally, professor of American Literature and creative
writing at various colleges and universities. My most significant affiliation has
been with Melpomene University in Indiana where I have taught off and on for the
past fifteen years.
When I first heard about this case, I immediately volunteered my services
to the plaintiff because of the vital importance of the principles at stake. In
addition, although I didnt recall it at first, I have since been reminded that Tisby
Hark was a student of mine back at Melpomene U. and I do feel a certain tug of
loyalty. It happens that I am between writing projects at the present time, having
just published my highly successful book To Create a More Perfect Onion , a
volume of literary criticism and, if I may say so myself, an impassioned defense
of the multi-layered creative life. If youre interested, I hope you will pick it up. At
some personal expense, Im taking time from my publishers promotional tour to
provide both this statement and my trial testimony.
Just what are those vitally important principles, you ask? Only those at
the very value-laden core of human existence, I respond. What possible value is
there to encouraging the writing of this terror dreck, you then ask? Let me first
say this. We humans have told tales of terror and horror for as long as we have
been telling tales to ourselves and to each other. Look at the Greek myths
(Atreus inviting Thyestes to a banquet and serving him his sons baked in a stew
yuck!), look at Grimms Fairy Tales (has there ever been written a more
frightening tale than Hansel and Gretel?), Dracula, Mary Shelleys
Frankenstein, and on up through the works of Stephen King and well beyond.
But, what is the value in all this, you persist? Well, Ill tell you. In case it
has escaped your notice, there is much about being a human that is nothing but
terrifying: living a life of undiscovered meaning, then perhaps dying by gruesome
violence or horrible sickness, and after death, then what??? All this constitutes a
daunting reality the tender psyche must face. Literature can allow one to deal

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with these frets and fears vicariously which is just about the healthiest thing you
can do. It may sound counterintuitive, but tales of terror can calm the psyche as
warm milk the body.

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Students should be encouraged to write with an honest voice and I am


thoroughly convinced this is what Tisby Hark was doing with the Nieman boy.
With complete honesty, students should be allowed to address such personal
topics as their heartbreaks, their family stresses, terrorism, global warming, their
secret dreams and inner fears whatever they may be. They should have full
subject matter freedom and nothing should be treated as off limits.

In his short story Eleanora, Edgar Allan Poe wrote Those who dream by
day are cognizant of many things which escape those who dream only by night.
Poe told his horror stories in the first person and in them he laid bare his own
obsessions and agonies his fears of madness, of premature death and of being
buried alive, his association of cruelty and pleasure. By sharing with us his
overlapping daydreams and terrors of the dark night, Poe made us a great gift for
which we need to show our gratitude in the most productive way.
That is not what Cedar High School is doing. What this school is trying to
do is to assure that there will be no more Edgar Allan Poes. Nevermore! And
that would be an immeasurable tragedy. Poe is very much a worthy role model
for any young aspiring writer. Poe did no less than deepen our collective
understanding of human nature. Thats what literature is capable of doing but it
cannot do it by standing still and not attempting anything more than whats
already been done. It has to push the limits, probing inner and outer frontiers.
Its practitioners need to be emboldened to do just this and must not feel
hamstrung by negative externalities.

What subjects did Poe write about? His The Pit and the Pendulum is all
about torture and mans ability to engage in it and to survive it is that not a
relevant topic today? His Masque of the Red Death concerns the ravages of
rampant disease, in fact from a blood-borne pathogen how about that one,
does that sound at all familiar? His C. Auguste Dupin detective stories involve
the solving of horrifyingly grisly crimes for society through ratiocination in the
days long before CSI. Whether its 1809 or 2009, should not all of these
persistent issues be receiving the scrutiny and analysis of our best young minds?
Unless the physical, moral and intellectual extinction of our species is our goal,
the answer is obvious.
Freedom of speech and artistic freedom are cornerstone principles in our
society with a long and proud tradition. Thomas Jefferson wrote: The tree of
liberty must be refreshed from time to time by the blood of patriots and tyrants. It
is its natural manure. Should this violent and scatological talk have gotten him
muzzled? Because he was a champion of free speech, we have hundreds of
Thomas Jefferson High Schools in this country; can you imagine a teacher
sending young Tom to the principals office for expressing that thought?

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The poet Walt Whitman wrote that through him spoke:


many long dumb voices,
Voices of the interminable generations of prisoners and slaves,
Voices of the diseasd and despairing and of thieves and dwarfs,
Voices of cycles of preparation and accretion,
And of the threads that connect the stars,
And of wombs and of the father-stuff,
And of the rights of them the others are down upon,
Of the deformd, trivial, flat, foolish, despised,
Fog in the air, beetles rolling balls of dung.
(I can hear our teacher: OK, Walt, you can take all your dumb voices and go sit
on the bench next to Tom and the principal will deal with you shortly.)
And, it was Tony Two-Ton Galento, before his championship bout with
Joe Louis, who famously boasted Ill moida da bum.
I could give you many more examples of vibrant life-affirming speech that
would send these small minded censors into fits of hand-wringing alarm. Who
would you want to sit in judgment, silencing these magnificent American voices?
The government? Hah! Thats a good one!
I know that this Zachary Nieman is a young person and young people
dont yet have the perspective of a Jefferson or a Whitman. But, really thats the
point. Adolescence is the natural time for the ability to express ones inner
thoughts and feelings to develop. Its like learning to speak a foreign language
when youre young and uninhibited. As you age, believe me, it gets harder. A
high school writing teacher can expect to see much that is gothic, noir, and
downright creepy. Teenagers like to shock, they like to make loud grabs for
attention. Heres a news flash: thats not just part of growing up but its often an
important part of the writers job description.
Zero tolerance for violence cant mean zero common sense. Schools
must trust to their teachers, the ones who work most closely with the students, to
keep a watchful eye out while encouraging their students growth and
development. A schoolteacher is not a police officer. A schoolteachers job is to
judge student writings on their artistic merit, not the presence of clues. If a
teacher witnesses violent acts or even threats, of course they should step in.
That has nothing to do with stifling creativity and censoring creative content has
nothing to do with promoting safety. Ive read that a child is ten times more likely
to be struck by lightning than to be struck by gunfire at school. In child safety
terms, keeping them off the playground makes more sense than handcuffing their
imaginations.

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Any writer (and I include the full range from myself down to the greenest
neophyte) must be judged solely on the basis of his or her writings. Nothing
more. The printed page stands unapologetically alone rather like the oil
painting in an art gallery without explanation, clarification or other props or
study aids. It is the sole job of the reviewing critic or teacher, then, to evaluate
that product in terms of whether or not it conveys something meaningful.
The writing teacher holds a mighty weapon. That is the pen with which he
or she grades the written work of the student. Pointless violence for no
worthwhile purpose should merit the student a C or a D that says Get this
lameness or lunacy out of here; give me something with real feeling. If the
student doesnt respond, maybe theres an issue there and an F will serve to
get parental and administrative attention. An A, on the other hand, gives
reinforcement for the creativity and talent that an educator should be identifying
and encouraging. That is precisely what was appropriately done by Tisby Hark in
grading Zak Niemans fine story.
Ive examined this boys writings and I can tell you there is some talent
there. Maybe not genius, but talent. The story The Tell-Tale Ringtone had a
well-described setting, character exploration, emotional connection, plot
development and good use of language all signs of a serious prose piece. If it
was just gratuitous violence hacking of body parts with no narrative purpose,
say that would be a different matter entirely. This story was well-written, had a
coherence to it and it responded in exemplary fashion to the thoughtful writing
assignment made by the teacher. Its author deserved the grade he received; he
did not deserve to be punished or singled out in any negative way.
Supreme Court Justice William Brennan, another champion of free
speech, once said Schools cannot expect their students to learn the lessons of
good citizenship when the school authorities themselves disregard the
fundamental principles underpinning our constitutional freedoms. The Principal
of Cedar High, in my opinion, has a blind spot for these principles.
The slippery slope of censorship is a very dangerous thing indeed. It has
the insidious and inevitable effect of chilling speech and stifling creativity. To
grandly state, as this Principal does, Oh, we choose to err on the side of caution
and the preservation of life is a false and phony copout. There are no
demonstrable benefits from censorship and any there might be are entirely
negligible. On the other hand, to err on the side of creative freedom is to affirm
the very lifeblood of our free society.
I say long live Poe and those who would fearlessly follow him! And long
may Tisby teach so that they, and all of us, may benefit!

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STATEMENT OF VERNE SMALL


Dude, youre not gonna believe this its hard for me to believe but Im
in the class of 2009 at Cedar High School and that means if I dont find a way to
screw things up like my parents say I always do, Im gonna graduate outa this
place in just a few months. Then what? Beats me.
So, like, I know Tisby Hark and I know Zak Nieman. I was in Tisby Harks
creative writing class along with my classmate Zak up through January. You
think I was gonna sign up for physics or calculus? Gimme a break! I hate all
those classes where theres only one right answer and a whole lotta the other
kind which is what I always come up with. Anyway, tell me what you wanta know
about those two and Ill give you my best answer.
Hark was a pretty good teacher, as teachers go. Loose and thats a
good thing. Hark wasnt so uptight and hung up on rules like most of the other
teachers around here. Hark would say that class was different because you
didnt have to be a rocket scientist for what we were gonna do. We werent
exploring outer space we were exploring inner space.
Hark loved to quote those old poets like Shakespeare and Beowulf and
Billy Collins and Marvin Gaye and lots of other musty dusty old codgers I dont
remember. Pre-Raphaelites, Victorians, Transcendentalists, all kinds of things.
Im terrible on their names but some of the words would stick with me despite
myself. Im funny that way. One of them I think it mighta been Dylan Thomas
but it coulda been Thomas something else told this one:
If my thought-dreams could be seen
Theyd probably put my head in a guillotine.
I remember that one cause it reminded me of me and my Dad building a
guillotine with my Erector Set when I was little and my Dad wouldnt let me do
anything and I wrote about how that made me mad in my autobiographical piece
for Hark who said it was good to write about something so personal but only gave
me a C on it. You know, the usual comments like run-on sentence and
sentence fragment.
Anyway, the point being, Hark said we all had weird and kinky thoughts
sometimes and thats healthy and OK. Tell us yours, puhlease! we all usta beg
but Hark would just give us that teacherish look that says Im up here and youre
back there and Im the one does the axing around here. Whats important, Hark
would say, is to let your inner thoughts speak in your writing on account of if you
keep em all bottled up inside, they can make you rot from the inside out.
Oh, oh, heres another one that just came back to me.

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Others, I am not the first,


Have willed more mischief than they durst.
I guess I liked the ones with a tune to them. I play a little guitar myself.
That one was by some guy whose name I totally forget but I think he came from
some place called Shrop (not sure about that). The point being we all sometimes
get this wild hair and thats just a fact of life. The challenge, Hark said, is to let
that hot and cold, the desire and the caution, keep flowing within you because
thats life and the alternative is not life.
Another thing Hark usta always say is I dont care if you all go up the
down staircase or down the up staircase. Im not saying that rules are made to
be broken but Im saying you need to listen to your inner voice and do the right
thing because it is the right thing not just because someone else tells you to.
When we did our debate proposition presentations, I used rules are made to be
broken and Hark loved it.
Hark seemed to kinda like Zak in our class, saying things like Zak was the
only one of us who didnt act like a sheep stuck in the middle of the flock. Zak
wasnt afraid of the wolves or something like that and was freer to wander around
in the fields whatever thats supposed to mean. Usually, at Cedar High, people
would just look away from Zaks weirdness like it was a skin condition they
couldnt wait to clear up but Hark actually seemed to dig his act. I think it was
probably the first time in twelve years of school together that I ever heard a
teacher compliment Zak. I have to hand it to Hark because Zak responded to
this by actually trying to do well on the assignments for that class. Thats
something I hadnt seen much before either. Zak had even started to raise his
hand and talk in Harks classroom and that was definitely a first.
Zak didnt really have any friends at school, at least the way youd usually
think of friends you know, people you hang around with doing nothing at all and
saying nothing much. I guess Id hafta say I was about the closest thing to a
friend Zak had. I was a part of his world anyway.
Zak and I were locker buddies. I had locker 222, right outside of Room
140, Miss Lenores room, and Zaks was right to my right. He usually just
opened it a crack, blocked my view inside and then slammed it quickly. I did
peek inside once and saw that he had a psychedelic poster, you know from like
the 1900s, with the words school daze on it. I said whats that? and he was
all like Thats me when Im at school, Im always in a daze. I was like Ohkaaaay.
Nobody ever took Zak seriously. Kids try to get good attention and avoid
bad attention all different kinds of ways. Zaks was to shrink inside that black
hooded sweatshirt with the foreign words on it (something about a
tyrannosaurus, I think) and shuffle his feet as he moved so slowly down the hall

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and to mostly be real quiet but then to say really weird things every once in
awhile. Big deal.
There were a lot of bullies who would pick on Zak quite a bit both
physically and verbally. They would deliberately rough him up in gym, trip him up
in the hallway and nail him with wads of paper in the classroom. They called him
names like Zero and Zilch and taunted him about being a misfit and a nobody.
He would give them that look that said Id rather be a no-fit and a mis-body than
what you are which is a prime, grade A, certifiable idiot. One time last fall we
were at our lockers when someone shoved him into his locker. Without turning
around, Zak muttered something about how the guy was a sheep in wolfs
clothing and that he was gonna get clipped.
On the Monday right after New Years when school started, I saw Zak
when we were at our lockers. I noticed that his school daze poster was covered
up with one for that gun control assembly. I said Dude, whats that all about?
and he started in yammering about how its way too easy for anyone to get ahold
of a gun. Then he said something like: Dude, Im telling you, just about two
weeks from today, Im really gonna show em something. I had no idea what he
meant and so I was just, like, Cool. Whatever. I didnt say anything to anyone
about this and I dont know who else Zak made the same comment to. The last
thing I heard him say was something he was muttering under his breath about
Nordstrom or maelstrom or something like that.
On the day it all happened, its just my luck I wasnt close enough to get in
on any of the action. Id already gone into the auditorium and found a seat that
wasnt next to anyone too annoying. I had just settled in and was working on this
cool design I was making on my left sneaker when everyone started yelling and
screaming. I could tell something was going on back by the door but I had no
idea what until I saw Zak being walked out the S-1 door with his feet not even
touching the floor.
Afterwards, the police dusted my locker for fingerprints and brought in the
sniffer dogs looking for a second gunman or maybe even a whole gang of them.
Meanwhile the detectives and school administrators isolated all the students and
grilled us one by one. They were asking all about adult influences on Zak,
possible drug connections, bands he liked, politicians he didnt like, evildoers in
the neighborhood and all that kinda stuff. Everyone wanted to find someone or
something more to blame. I guess little old Zak is just too much of a nobody and
a zero for them too.
You wanta hear something thats kinda funny? The gun wasnt fired but
Tisby was. Some of the kids are saying and this is what Im talking about when
I say kids say stupid things to get attention and you shouldnt get all bent outa
shape over it theyre saying it shoulda been the other way around.

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STATEMENT OF ALIX TALIONIS


It has been my honor and distinct privilege to serve as Principal of Cedar
High School for the past four years. I came up through the ranks in the
mathematics department primarily as a geometry teacher here at Cedar High
before joining the administration as Vice Principal, a position I held for three
years until my promotion in 2005.
As Principal, I believe in running a tight ship where everyone knows the
rules and also knows that those rules will be fairly applied to the letter in order to
serve the purposes behind the rules. All must know that we will be straight, we
will be punctilious and we will cut square corners. In a busy high school
environment where, not to be overly dramatic, chaos and anarchy lie just
beneath the surface, it is important that everyone knows where they stand.
Where the Principal stands is at the center, at the very hub of all the radiating
relationships.
The job of Principal involves balancing a number of important duties. I will
list them with no order of importance implied as none exists. The whole is the
sum of the parts. There is a duty to oversee the education of the students with
all that that entails, including not just their intellectual development but also their
growth into roles as responsible adult members of society. There is a duty to the
parents of our students that encompasses providing a safe and healthy learning
environment for the young people they have entrusted to our care. There is a
duty to the School District to see that our facility is run in an efficient and orderly
fashion, and is one of which the public can be justly proud. And, finally, there is a
duty to our faculty and staff to see that, in their individual efforts, they feel
supported and appreciated.
Last September, after the school year had started, I hired Tisby Hark as
an at-will employee to teach English and composition at Cedar High. Its always
been done that way with mid-year hires. Regular teachers have written contracts
and the contracts begin with the clear language, for example, This contract is in
effect for the 2008-9 academic year. Hark was hired with a handshake
agreement and there was no such written contract. It is fair to say that it was
mutually understood that if things went well for the duration of the school year,
chances were good that a written contract would be offered for the following year
but there was no absolute guarantee of this.
That standard teachers contract does contain language that If a
Teachers Handbook is approved by both the faculty and the administration, it
shall provide further delineation of the rights and responsibilities of all teachers at
Cedar High School. My former Vice Principal, Bella Coffman, served on a
committee with certain faculty members to draft such a handbook and apparently
they had finished their work. I recently saw her name on the final official draft,
showing it to be effective last September, but I have to tell you I never saw this

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booklet before and I certainly never approved it myself. That type of usurpation
of authority is one of the reasons Ms. Coffman is no longer with us.
I can honestly say I respected Tisby Hark from the start and I wish things
could have worked out better. As a new hire, Tisbys work was subject to
periodic administrative review. I personally reviewed all of the early assignments
as they were being made and I felt they were well thought out. The
autobiographical paper and the debate project, as Hark outlined them for me,
both cleverly served multiple purposes and I was quite impressed with that.
Unfortunately, we only reviewed the assignments as made by the teacher and
not the students work nor the teachers responses to the students submissions.
Since the tragic events of January 20, we have gone back and closely
examined Tisby Harks performance in that regard and it causes me great
distress. My immediate reaction went well beyond personal disappointment and
bordered on outrage. I felt personally let down and personally endangered.
From the written materials gathered by police when they searched the Nieman
home on the afternoon of the 20th and from the information they gathered in their
interviews, all of which has been made available to us, it is apparent that there
was an astounding number of red flags or warning signals being thrown up by the
Nieman boy. It is unpardonable that they were missed by this teacher. An
otherwise bright and responsible person, Tisby Hark plainly failed to connect the
dots and discern this obviously dangerous pattern.
I myself had observed the Nieman boy, walking alone in the corridors at
school, always wearing that black hooded sweatshirt with the hood up and I have
to say that was enough to draw my suspicions. Of course, others do this as well
and by itself it may mean very little. But add to it all that Tisby Hark learned over
the fall semester. The boy was a classic loner, he was obsessed with the
gruesome and gory, he celebrated assassins, he was a proponent of violent
force, he brought a knife to class and he fantasized about murdering his
Principal. This boy should not have been a student at Cedar High on that day in
January when he brought a loaded gun to school to carry out his sick fantasy. It
was because of Tisby Harks dereliction in a teachers duties that he had that
opportunity and very nearly pulled it off.
About a quarter past ten on the morning of January 20, I was on the stage
in the auditorium waiting patiently for the students to take their seats for an
important assembly. I was about to introduce our guests for a panel discussion
on the topic of Urban gun control efforts after D.C. v. Heller. We had the heads
of the Second Amendment Defense Foundation and of Washington CeaseFire as
well as the Mayor of Columbus and I anticipated a lively discussion. Wed been
actively promoting this program (with posters on the hall bulletin boards and
notices on the electronic bulletin boards) since early December when that
horrible workplace shooting by a disgruntled employee happened back East.

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On the stage, I was a good distance from the scuffling that I became
aware of just outside the door to the auditorium. I will forever be indebted to
Jamie Spartan for so bravely interdicting whatever malevolent scheme was afoot.
It is my understanding that someone from the administrative suite called the
authorities who responded quickly and appropriately. I dont know when the
young mans wrist was broken but I can say that he is very fortunate that is the
worst of the physical harm his actions brought about.
My justification for immediately firing Tisby Hark on the morning of
January 22, 2009 was, first and foremost, that I chose to. In an at-will
employment situation, I had that right as employer and Hark is entitled to nothing
more. Beyond that, I dont mind telling you that Hark was fired for actions that
led directly to a situation presenting an imminent danger to the entire school
community. This is unacceptable to me as the Principal of Cedar High School.
Arguably the two most important words in our Mission Statement are safe
environment. I hesitate to quote Mr. E.A. Poe but, if your child comes home
from school in an oblong box, none of the rest of it counts for much. It is
unfortunate but the reality is that these are violent times and schools have a
fundamental obligation to protect vulnerable youth.
Like many high schools in the post-Columbine era, Cedar High School has
adopted a zero tolerance policy when it comes to weapons and violence. As
the policy states, these simply cannot and will not be tolerated. As Principal, it is
my duty to take firm action against any person bringing a weapon to school.
This is what was done with the immediate expulsion of the Nieman boy when he
brought the handgun to school on January 20. And this is what should have
happened many weeks earlier when he had brought a knife to class.
The fourth section of the Anti-Violence Policy is actually not, strictly
speaking, a zero tolerance provision. Concern about potential for violence does
not automatically lead to suspension or dismissal. Rather, when such a concern
is brought to my attention, I can be expected to take appropriate action. I cant
say for sure what that action might have been at various points along the Nieman
timeline, but it could have included a referral to a psychologist or psychiatrist who
could work up an expert risk assessment. Or, if I concluded it was the only
appropriate way to protect our community, I could opt to sever the students ties
to the school community.
As of January 20, we hadnt formally implemented a risk assessment
protocol because we hadnt had the need for it yet. Since then, we have hastily
done so and a team of counselors, educators and psychologists is now in place
and ready to handle such referrals on very short notice. The task force that put
this together has also recommended that we amend the Anti-Violence Policy to
make clear that action pursuant to section four would not include punishment but
only a referral for a psych eval. I dont have the specific proposed wording in

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front of me, but I know they wanted to have the word against removed from this
section only. It is up to the School Board to determine whether or not to adopt
this change permanently. For the sake of good relations with all, I have gone
ahead and exercised my authority to accept all the task force recommendations
and make them effective on an interim basis.
These topics had been under discussion already and we had been moving
ahead slowly on them. In November, we held a training and brainstorming
session for teachers and administrators on students in distress. We discussed
application of the policy of zero tolerance for violence and also some teachers
raised the possible need for an anti-bullying policy as well. I agreed that Id think
about that as a project for next year. This was the first Id heard of any concerns
on this subject.
I regret that Hark missed that training session. I dont know the reason for
the absence. The session was held on a teacher in-service day and was
strongly recommended but not mandatory. Its possible that this opportunity to
give some thought to these risks might have made a difference in avoiding that
later tragic mistake of judgment. The task force recommendations included one
that attendance at such training sessions should be made mandatory and that
the sessions and our policies also be expanded to address bullying issues.
I agreed completely with the editorial that appeared in the Cedar Chronicle
on the morning of January 21 under the title A Call for Action to Make Our
Schools Safe. In fact, the evening before, after getting the information from the
police investigation, I had made up my mind to fire Tisby Hark and to convene
the task force to further refine our policies. I dont necessarily agree with all the
conclusions of the task force (for instance, that an atmosphere of insufficiently
checked bullying played a contributing role in the events of 1/20) but I am not
unreceptive to the recommendations they have made and will make as we go
forward together.
There is one key word and key concept that appears in Cedar Highs
Mission Statement, its Teachers Handbook and in the Anti-Violence Policy. That
word is community. I know that concept is being twisted nowadays as people
talk about being in an online community with people theyve never shaken hands
with or looked in the eye. Maybe Im old school, but I see community as the
flesh-and-blood human beings all around you and about whom you care deeply.
Even if you look at Harks interactions with the Nieman boy as fine teaching, still,
that same conduct let down this entire community and should not be tolerated.

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STATEMENT OF JAMIE GYMBO SPARTAN


My name is Jamie Spartan but the kids who never see me except in the
gym and never come to the gym without seeing me - all call me Gymbo and that
handle has stuck. I got my degree in physical education from Southwest
Missouri State Teachers College after serving four years in the United States
Marine Corps where I was a munitions expert. Ive now been teaching phys ed
here at Cedar High for five years.
Right at the present point in time, I have my eye fixed on the position of
Athletic Director and I believe as soon as theres an opening, the position should
be mine. A person that wont be beat cant be beat. Im working so hard towards
this goal because I know that its only in the dictionary that success comes before
work. Of course, the decision to promote me will ultimately be up to Principal
Talionis for whom I have nothing but the greatest respect.
Kids are complicated little critters but theyre simple too. I know theres a
whole lot of different kinds of stuff that schools need to fill them up with and what
I do is just a part of it. Sure creativity is important. I think first graders, for
example, should spend a lot of time doing finger painting and I think its really
important to have a tight school band that can play at the boys football and girls
basketball games. There are always going to be kids who dont have what it
takes to be out in the heat of competition and this is a fine way for them to show
their support for the athletes who are putting it all out there for the glory of their
school. They also serve who stand and drum or play the piccolo.
But in my p.e. classes, Im working with all the high school kids and all of
them have to get ready to go out into a rough, tough world and they need to
understand that when the going gets tough, thats when the tough get going.
They dont need finger painting. What they need and what I teach them is
two things: the toughness theyll need to survive in that world and also the
importance of always playing by the rules.
I know that Principal Talionis is very big on rules too and I appreciate and
respect that. For example, I knew the Principal was very serious about the Zero
Tolerance Policy for school violence and I did all that I could to follow that policy.
In P.E. class, we used to play a game we called murder ball. Not any more.
Principal Talionis felt that name desensitized kids to violence and so we changed
it to Dodge Ball. When a kid was hit by the ball, they used to say the kid was
murdered. Not any more. Now we say the kid got tagged.
Zak Nieman was terrible at Dodge Ball (and, Id have to say, he was
terrible at Murder Ball too). Zak used to always hang his scruffy head and whine
Aww, Gymbo, I cant do this and I would say right back at him Success comes
in cans; failure comes in cants. You need to stock up on your can goods, young
fellow.

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But still he was always the first one tagged and some of the kids seemed
to take special pleasure in blasting him. It was only a rubber ball and couldnt
really hurt him and I hoped that over time it would toughen him up. Once in a
while, when Zak was particularly wimpy, I may have been a little hard on him
myself -- all for his own good. Sometimes he looked so pathetic the other kids
would laugh at him. After the Zero Tolerance Policy took effect, that was no
longer allowed and I punished offenders. One time, when I couldnt help
laughing at Zak myself, I imposed the same punishment on myself. I ran five
laps around the gym and did twenty pushups on top. If my Principal says it, I do
it. Mine is not to reason why. Our Teachers Manual made it perfectly clear
that were all expected to follow all school policies to the letter and if the
Handbook says it, you better believe Gymbos going to do it.
But I do have to say that I really like the idea of a zero tolerance rule. You
know right where you stand. You dont have that when you have like a 5%
tolerance or 10% tolerance rule. Ever since the policy was adopted, Principal
Talionis has made a big point at faculty meetings to make sure we all understood
it and followed it. Youve got to respect that.
Physical activity and respect and eternal vigilance those are the keys to
preventing violence. Idleness is the devils playground and any playground
needs a monitor. Whether youre talking about Columbine High School or the
September 11th attacks, violence takes root when good people are not paying
attention and the goof-offs and goof-balls get to run wild with their sick ideas. I
believe in keeping the kids busy and I believe in keeping my eye on the kids.
On Tuesday January 20, our A.D. was off lollygagging at some conference
in Hawaii and I suppose now thats a good thing. It meant that I had to come out
of the gym and help move the troops into the auditorium for the assembly. Thats
what I was doing when I saw Zak walking alone in the direction from his locker
toward the door to the auditorium.
Thats when I noticed that he was holding the gun at his side in his right
hand. He was not pointing it at anyone and he was also making no attempt to
conceal it. His hood was up and he had that sort of a zombie look on his face
that he often had. Of course nobody else was paying any attention to him, they
were all off in their own little worlds. Just then the Gavinoo kid appeared and
started yelling something about a machine gun. I had no idea what that meant
but my instinct and military training took over.
Zak hesitated briefly and I knew this was going to be my one chance.
There was no time to lose. I circled around and came up from behind him and
took him down hard. He went flat on his face and I think the hand with the gun
got crumpled up underneath him. Fortunately, the weapons safety was on. I
worked the gun loose and stuck it in my belt and kept Zak pressed tight against

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the floor. I didnt know what he had in the way of backup weapons or
accomplices so I stayed hyper-alert as I subduded him until the police arrived
and took control of the situation. It aint over til its over.
There was all kinds of screaming and yelling and noisy running around but
I could hear Zaks muffled voice as his face was pressed to the floor. He kept
saying over and over I need to show them! I need to show them!
When the police officers had taken custody of him, I got my first good look
at the firearm. It was a Glock 18, a semi-automatic 9 millimeter pistol with a full
magazine with live ammunition. I learned later the gun had an illegally modified
sear so that it was capable of firing 33 rounds per second with a single trigger
pull. Of course, only a trained marksman, experienced with this particular
weapon, would be able to fire it with any accuracy. Zak most certainly would not
have been capable of controlling it. Although he might have hit something with
the very first round out of the barrel, the rest would almost certainly have gone
into the ceiling.
I do appreciate that the Mayor and Police Chief and the Chronicle have all
publicly said that I was a hero and tossed around words like bravery and selfsacrifice but you know what? I was only being a good member of the school
team playing by the rules and looking out for my teammates.

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STATEMENT OF RUEMORE GAVINOO


I am a classmate and neighbor of Zak Nieman but I am not a friend of Zak
Nieman. Sorry, but Zak has always been way too weird and scary for my tastes.
I remember when we were little kids and wed explore in the woods back behind
the Ushers house at the end of our cul-de-sac. Zaks favorite activity was to turn
over some old log to expose the slimy little bugs and beetles clinging to its
underside and then hed bash them with a rock. That would creep me out and
Ive tried to keep my distance ever since then.
Living so close has made that kind of hard sometimes. We have to ride
the school bus together, we have always had a number of classes together and
my parents insist on using Zak to water the plants and feed and walk our dog
when were on vacation. I dont like to have him in our house but I guess my
parents think flipping him a few bucks is a better deal than paying to place
Berenice in the pet hotel while were gone. Besides, they like to keep Berenice
on duty as our guard dog.
Zak is a bright kid but not someone anybody could ever feel comfortable
around. Hes a loner, always keeping to himself with a look on his face that says
hes holding sick secrets bottled up inside and either he doesnt want to share
them or you wouldnt want to hear them or both. Id say that his interests, when
he has them, are varied but they are always out of the ordinary on the psycho
side. He cruises along on autopilot, hiding inside his hooded sweatshirt, and you
dont know hes even there for weeks at a time and then, all of a sudden, he gets
fired up about something wacky. Then that passes and hes back to being a
ghostly nothing. All the kids at school call Zak Zero cause hes such a nothing.
I call his little fanatical flare-ups his sub-zero phases.
For example, after we studied President McKinleys assassination in our
20 Century American History class, he got all excited about how the anarchist
assassin Leon Czolgosz used the name Nieman as an alias which apparently
means nobody in German. He even did a family history report for Tisby Harks
class about this noted ancestor Fred Nieman who was of great historical
significance. All the kids in the class thought it was really sick but Hark didnt
seem to care.
th

And this came just after Zak had gotten himself all worked up about John
Wilkes Booth and the Lincoln assassination last Spring. That was when he got
sic simper tyrannis stitched in silver onto the back of that black sweatshirt he
always wore. After the Czolgosz stuff, our American History teacher Professor
Fether got fed up and put his foot down. He told Zak to drop this assassination
fascination right now or hed report him to the principal. For the rest of the 20th
Century class, he said that Zaks report topics were restricted to Woodrow
Wilson, John Foster Dulles and Janet Reno no Oswald, no Ray, no Hinkley.

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A funny thing is I think some of the other teachers were spooked by Zak
(just like us kids were) and they were very careful too careful around him.
That new teacher Tisby Hark is a good example. Im convinced that Harks
failure to stand up to Zak when he was either sullen and silent in class or else
when he trotted out his scary stuff was on account of fear of what might happen if
they confronted him. Us kids confronted him all the time about being such a
weirdo and a nothing, wed let him know just what we all thought of him, and hed
just slink off like a bug looking for a rock or a log to crawl under.
There was another time in Harks class when I remember Zak acting really
spooky and Hark doing nothing about it. This was the time when we were doing
oral presentations arguing some debate proposition. I dont remember exactly
what Zaks topic was but I remember very clearly how we all felt watching him.
He had a small sword with him and it definitely looked like it could do some
damage and he was swinging it around like a dagger and nobody wanted to go
anywhere near him. He should have been 86d from school on the spot. If
somebody had called in the SWAT team that day, maybe they wouldnt have had
to come in January.
Oh, now I remember his topic had to do with the difference between
swords and words. I remember Zak saying that words can only make you feel
small and isolated but a sword can actually make you small and isolated like
when I cut your head off and it sings the blues I aint got no body. I remember
all the class members were shocked that he was threatening to dismember us.
Instead of grabbing that knife away from Zak, Hark just kind of sweetly asked to
see it and then slipped it into a desk drawer. Im not sure if it was this time or a
different time but I remember Hark making the comment I like my humor dark,
just like my chocolate.
There was supposed to be a Q & A session after the talk. I asked the first
question and it turned out to be the only question. It was something like Are you
such a zero that you dont know the words of the Second Amendment make me
stronger than you and your puny little blade? He had zero to say to that and all
the kids started making the zero sign at him with their hands and hooting
zeeeee-rrro until Hark stepped in to protect him by saying that was all the time
we had.
Yeah, the kids did sometimes pick on Zak a little bit but it really was
nobodys fault but his own if he felt small and isolated. What possible right
does he have to act so different from everybody else? Our words didnt make
him that psycho way he was. I also honestly believe that a lot of us got the idea
from Gymbo Spartan that we could help Zak by toughening him up.
Zak had such a massive chip on his shoulder, really it was more like one
of those logs with the creepy crawlies stuck to it. And he was so two-faced about
it. I know that he whined to his family about the kids picking on him and then his

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family would whine to the principals office. But then, when he was with the other
kids, he would blame everything on Principal Talionis who he said possessed an
Evil Eye. He would say it was all because of that tyrant that he was so badly
mistreated at school. He did the exact same two-faced thing with my family. He
would be all nice and polite when he was with my parents but then, when I was
alone with him at the bus stop in early January, he started in calling my Dad a
gun nut and a criminal.
Im not so into it but my Dad is a gun collector. Hes proud of his collection
and hell show it off to anyone whos in the house including Zak telling them
all about each of the guns. Dad doesnt keep the collection locked up because
the house has an alarm system and, maybe more importantly, we have Berenice.
Shes a pit bull and, if she doesnt know you, I guess she can be kind of nasty.
Of course, if she does know you, shes a sweetheart. My Dad would say If you
want to try and take my guns, go ahead. Weve got one hungry dog here and
hell really make a mess out of you. I had an image in my mind of Berenice
tearing up some thief like what the orangutan did to the two French ladies in one
of those stories Tisby Hark had us read.
I couldnt believe it when my Mom asked Pat Nieman to have Zak feed
Berenice and water the plants while we were gone in January. The truth is Zak
didnt like us and we didnt like him. I dont think there was any big secret about
that. My Dads a carpenter and he says Zak is half a bubble off plumb.
Whenever Zak was going to be in our house alone, I made sure to lock the door
to my bedroom so he wouldnt go snooping through my things. I didnt want him
finding something he could use against me. So far as I know, my parents didnt
take any precautions like that.
My family left town on Thursday January 15 when we drove down to
Yreka, California for a gun show where my father was selling some odd-sized
cartridge loading equipment hed designed. We stopped at Raptor n Reptile
Gardens on Monday and got home late that night and went straight to bed.
On Tuesday morning, I was still feeling half asleep when I got on the bus
with Zak. Id never say Zak looked normal but he looked about as normal as he
ever looks. I noticed that he didnt have any books or backpack with him. At
school, we both went in the main E-2 entrance and went straight to Room 130 for
Harks first period English class. After that class (which I must have slept
through), I remember Zak taking a left to go to his second period art class as I
went the other way to Spanish III with Senora Juarez.
I was just waking up in time for the third period Second Amendment
assembly. I was in the hallway on my way to the auditorium when I saw Zak
heading to the same place, coming in the direction from his locker by the door to
Room 140. He was in his black sweatshirt, of course, and he was still carrying

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no books and no backpack. But what he did have now was a black handgun
held down at his side as he walked along in that slow way of his.
When I saw the gun in Zaks hand, I immediately recognized it as my
Dads Glock 18. It was a 9 millimeter semi-automatic that my Dad said had been
modified to be fully automatic. My Dad had told me Dont ever take this gun out
of the house because its illegal out there. He said hed bought it at a gun show
and my understanding was that it was OK to have it for self-defense inside the
home.
I yelled something about the gun and thats when Gymbo Spartan came
out of nowhere and heroically tackled Zak. It was way cool to see Zak slammed
to the floor with a massive crunch. Gymbo wrestled the gun away from him and
held him pinned down until the police arrived and got him away from us. They
went out the S1 entrance and he left looking just like a ghost. I gave a statement
to the police that day and they were really interested in hearing all about how
weird Zak was.
Its pretty obvious that Zak had been planning some type of mass
mayhem. A detective friend of my Dads says the fact that Zak brought the
stolen Glock in on Friday and hid it in his locker proves that it was premeditated.
Although my Dad never got his gun back, everything else has pretty much
returned to normal now. Actually, things have improved because now we dont
have that misfit Zero at school.

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STATEMENT OF DR. JUNGIAN SCHEZZ, Ph.D


My name is Dr. Schezz and I maintain a lively psychotherapy practice
here in Columbus. My offices are in the Archetypal Professional Building on
Madison Street. In 1987 I obtained my doctoral degree in psychology from the
City University of New York. From there I went on to undertake two years of
advanced studies at the Institute for Psychoanalysis in Vienna, Austria. Since
1990 I have been fully accredited as a Licensed Mental Health Counselor under
the laws of the State of Washington.
I regularly treat patients of all ages who present with a myriad of
psychological and adjustment disorders. The primary focus of my academic
training, my research and my clinical practice, however, has been in the areas of
adolescence and young adulthood. In addition, I regularly lecture at training
sessions for school teachers and administrators on the topics to be addressed in
this declaration. Appearing as an expert witness in both state and federal courts,
I have on several dozen occasions provided testimony helpful to the resolution of
issues involving application of the law to young peoples psychological, emotional
and cognitive functioning in an educational setting. Most frequently, I am
retained by a school district that is opposing unreasonable demands of parents
related to their childs Individual Education Plan.
Physically, mentally and emotionally, youth is a time of active ferment.
This is a natural component of the growth processes that are the hallmark of that
stage of life. All this volatility with the energy and striving it connotes is
mostly a good thing. That is not to say, however, that it is not in frequent need of
checking and channeling in order to make sure that no harm befalls the child or
those around him or her. That job properly falls to the adults who populate the
life of that young person.
In this case, I had no involvement as the events were unfolding but I have
since been asked by the Cedar County School District to take an objective,
outside look at those events and to express my expert opinions about how the
situation was handled. My strong opinion is that the plaintiff, Tisby Hark, was
grossly deficient in failing to pick up on all the clear danger signals being given
off by Zak Nieman and then failing to take appropriate action.
I have reviewed some of Zak'
s writings which were recovered by the
police from his bedroom. These writings demonstrate quite clearly the active
psychopathology that was steadily developing and leading him inexorably to the
incident of January 20. The piece he had written about a black cat could not be
clearer. In this, he speaks casually of a man who first cruelly cuts the eye out of
a black cat. Not satisfied with this, some time later he hangs the cat by its neck.
He then goes on to murder a woman with an ax and conceal the body.
Detaching himself from his own reality, Zak seemed able to write about this
progression of cruelty in a relaxed, non-judgmental way. What he'
s describing is,

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of course, the classic pattern of the youth who pulls wings from flies, then
tortures birds and then small mammals and finally reaches the stage where,
senses dulled and craving an ever bigger thrill, violence toward fellow humans
seems acceptable.
From the information available from collateral sources, this is just the path
that Zak was marching down. Starting out with that animal cruelty behind the
house of the Ushers, he had clearly desensitized himself to the concept of pain
suffered by someone else. It was of no consequence to him, he just didn'
t care
one way or the other. When the Chinese earthquake happened in the spring of
2008, I am told he was indifferent and cared more about gasoline prices.
In reviewing the declarations of other witnesses in this case, I was struck
by a particularly telling incident recounted by Rue Gavinoo. In the presence of
teacher Hark, Nieman came right out and as much as said he had been made to
feel small and isolated and vowed to seek violent revenge on those he saw as
the guilty parties. As a teacher and responsible adult hearing this, Hark should
have seen it for just what it was. If that is not a cry for help (or a cri de coeur as
my European colleagues would say), then I dont know what is. Immediate
action was called for.
Most disturbing of all, and the clearest sign of all as to what was to come,
was the story he wrote called "The Tell-Tale Ringtone." Written in the first
person, the story gleefully describes his fantasy of murdering his principal,
dismembering the corpse and stuffing it into a school locker. It was only because
he forgot about the principals cell phone that he got caught. He wrote such
things as "Yes, he was stone, stone dead. I placed my hand upon the heart and
held it there many minutes. There was no pulsation. He was stone dead. His
evil eye would trouble me no more. Any responsible adult in a position of
authority who saw before them a child capable of saying or writing such things
should have immediately sounded the alarm.
In the story, he wrote a line reading You left me no choice. Clearly, he
sees himself as a martyr and such people are dangerous in the extreme. When
he started making explicit statements that around January 19, he was going to do
something special and show them, then it was clear that he was plotting
revenge for his perceived hurts. Whether or not Hark was aware of this, and
whether or not Zak was asking to be stopped, he had become a ticking time
bomb and his declared zero hour was fast approaching. The descent into the
maelstrom had begun.
Personally, I don'
t know Poe from Polanski or any of those other so-called
artists. Nor am I a student of history. What I do know is child psychology and a
school teachers responsibilities. A teacher today has easy means of detecting
what it means if a kid is obsessed with Leon Czolgosz. In just a few minutes on
the internet, I was able to learn of the disturbing link between John Wilkes Booth

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and Timothy McVeigh involving the slogan sic simper tyrannis. When Zachary
wore a similar shirt to McVeighs, that should have set off alarm bells for anyone
and, in particular, a teacher to whom this young person had bragged about being
related to an assassin and the superiority of weapons to words.
Here is a laundry list of some commonly accepted identifying warning
signs for potential violence all of which appear in this case:
- socially withdrawn with few or no close friends
- inadequate parental supervision
- history of animal abuse
- sees self as a victim of others and is resentful
- preoccupied with weapons or violence
- preferred entertainment focuses on violence
- violent themes expressed in own writings
Whether or not one could correctly spot him as a walking, ticking time
bomb, there were simply too many red flags to ignore. All of the literature
establishes that most actual student attackers had no previous violent acts in
their histories. The best predictive profile is of a student who has manifested
bitterness and frustration at coping with personal circumstances and who has a
preoccupation with violence in a way that makes it inferable that violence may be
resorted to as a means of alleviating that bitterness and frustration.
I am certainly not saying you should lock this young man up because of
his writings. What I am saying is that there needs to be mechanism in place to
get him evaluated by a professional just as soon as there is a credible sign that
he may pose a risk. That is the only prudent way to proceed. This screening can
determine such questions as: How deep is his rage? How close is it to boiling
over? When that happens, how is it likely to play out? By not taking this simple
harmless step, Tisby Hark made it inevitable that the entire community would get
the answers to these questions in the most dangerous way conceivable.
I agree wholeheartedly with one thing said by Prof. Post. Without a doubt,
the pen held by the teacher is a mighty weapon. By using that pen to alert the
school psychologist to a potential powder keg before a deadly explosion occurs
is to act most nobly in the defense of the innocent.
Also, it seems to me that Prof. Post is missing a very basic distinction
between literary critics and teachers. It may be that the written product is all the
critic needs to see in order to judge the writer but the teacher (and especially a
teacher of high school students) has other duties as well and they compel a
deeper look. All of the human interaction that takes place in the classroom gives
the teacher a background against which student writings must be evaluated.
Maybe that doesnt affect the grade the written work deserves, but it certainly
needs to be factored in by the teacher as he or she goes about the job of serving
the best long term interests of that student and the rest of the school.

58

EXHIBITS

59

MISSION STATEMENT
The Cedar High School community seeks to provide outstanding
educational opportunities so that all students may reach their intellectual,
creative, personal and social potentials. The school is committed to the notion
that creative expression and individual talents are best developed through the
nurturing of innovation and risk-taking in a safe and supportive environment in
which each student feels valued and respected.
We will endeavor to produce lifelong learners who will think logically,
creatively and effectively for the benefit of themselves and their society. While
ever in pursuit of excellence, we recognize that frequently the highest
achievement lies in the quest itself.

Exhibit __1__

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Excerpts from Teachers Handbook:


I. A. While not to be relied upon as if a part of any teachers individual
contract, this Handbook is intended to, and shall be considered to, provide further
delineation of the rights and responsibilities of all teachers at Cedar High School
so as to better serve all the noble and shared goals of our community mission.

XII. B. 1 Teacher disciplinary matters shall be addressed with a


progressive discipline system. This means:
counseling
First offense
Second offense
warning & sanction of up to one week pay loss
Third offense
sanctions up to and including termination

XII. B. 2
The above provisions for progressive discipline do not apply
under the following circumstances:
a.
the teacher has committed an act of aggravated
misconduct actually endangering the safety of
members of the school community; or
b.

the teacher has engaged in a pattern of deceptive


conduct that has prevented the school
administration from becoming aware of a situation
that could potentially endanger the safety of the
school community.

Exhibit __2__

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ANTI-VIOLENCE POLICY
In order to assure the mission of the Cedar High School community to
provide all community members with a safe and supportive environment, the
following principles and practices are to be adhered to with absolute strictness.
1. There shall be zero tolerance of violence and threats to the safety
of others within our school community. These simply cannot and will
not be tolerated.
2. Any and all instances of a community member bringing any type of
dangerous weapon onto school grounds shall be immediately reported
to the administration which will be expected to take immediate and firm
action against the person or persons responsible.
3. Any assaultive or threatening behavior by a community member
shall be immediately reported to the administration which will be
expected to take immediate and firm action against the person or
persons responsible.
4. When any teacher or staff person becomes aware of facts or
circumstances that would lead a reasonably prudent person to the
conclusion that a student is exhibiting signs of a potential for violence,
that shall be immediately reported to the administration which will take
similar action against that student as appropriate.
5. Nothing in the school curriculum shall in any way encourage,
condone or imply approval of any acts of violence.

Exhibit __3__

62

P. 5, The Tell-Tale Ringtone

louder! louder! louder! louder!


Oh, po-po! I screamed, Cut the crap! I did it, I iced the geek! I popped
the weasel! That locker, number 223, check it out there, there! its the
principals pathetic ringtone calling for me!

!
!
!$

A+
%

Exhibit __4__

63

! "
#

Exhibit __5__

64

MISCELLANEOUS BACKGROUND
MATERIALS

65

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&

[There is a great deal of information about Poe on this website as well as at


www.eapoe.org. Among all this information, it may be of interest that, at the time
of his death, Mr. Poe was in possession of a gentlemans weapon a cane with
a sword discreetly hidden inside. Some years earlier, with his pen, Poe had
written this verse concerning a concealed sword and a libation of Tyrannys
blood.]

Hymn to Aristogeiton and Harmodius


Wreathed in myrtle, my sword I'
ll conceal
Like those champions devoted and brave,
When they plunged in the tyrant their steel,
And to Athens deliverance gave.
Beloved heroes! your deathless souls roam
In the joy breathing isles of the blest;
Where the mighty of old have their home Where Achilles and Diomed rest.
In fresh myrtle my blade I'
ll entwine,
Like Harmodious, the gallant and good,
When he made at the tutelar shrine
A libation of Tyranny'
s blood.
Ye deliverers of Athens from shame!
Ye avengers of Liberty'
s wrongs!
Endless ages shall cherish your fame
Embalmed in their echoing songs!
Edgar Allan Poe -- 1827

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[And, while were back in the 1820s, heres some law on the constitutional right
to bear arms as it relates to swords concealed in canes.]
BLISS v. COMMONWEALTH
OPINION OF THE KENTUCKY SUPREME COURT.--OCTOBER 14, 1822
This was an indictment founded on the act of the legislature of this state,
"to prevent persons in this commonwealth from wearing concealed arms."
The act provides, that any person in this commonwealth, who shall
hereafter wear a pocket pistol, dirk, large knife, or sword in a cane, concealed as
a weapon, unless when traveling on a journey, shall be fined in any sum not less
than $100; which may be recovered in any court having jurisdiction of like sums,
by action of debt, or on presentment of a grand jury.
The indictment, in the words of the act, charges Bliss with having worn
concealed as a weapon, a sword in a cane.
Bliss was found guilty of the charge, and a fine of $100 assessed by the
jury, and judgment was thereon rendered by the court. To reverse that judgment,
Bliss appealed to this court.
In argument the judgment was assailed by the counsel of Bliss, exclusively
on the ground of the act, on which the indictment is founded, being in conflict with
the twenty-third section of the tenth article of the constitution of this state.
That section provides, "that the right of the citizens to bear arms in defence
of themselves and the state, shall not be questioned."
Can there be entertained a reasonable doubt but the provisions of the act
import a restraint on the right of the citizens to bear arms? The court apprehends
not. The right existed at the adoption of the constitution; it had then no limits
short of the moral power of the citizens to exercise it, and it in fact consisted in
nothing else but in the liberty of the citizens to bear arms. Diminish that liberty,
therefore, and you necessarily restrain the right; and such is the diminution and
restraint, which the act in question most indisputably imports, by prohibiting the
citizens wearing weapons in a manner which was lawful to wear them when the
constitution was adopted.

67

[And, here is some more recent Washington law.]


RCW 9.41.010
Terms Defined
Unless the context clearly requires otherwise, the definitions in this section apply
throughout this chapter.
(1) "Firearm" means a weapon or device from which a projectile or projectiles may be fired by
an explosive such as gunpowder.
.
(7) "Machine gun" means any firearm known as a machine gun, mechanical rifle, submachine
gun, or any other mechanism or instrument not requiring that the trigger be pressed for each shot
and having a reservoir clip, disc, drum, belt, or other separable mechanical device for storing,
carrying, or supplying ammunition which can be loaded into the firearm, mechanism, or
instrument, and fired therefrom at the rate of five or more shots per second.

RCW 9.41.190
Unlawful Firearms -- Exceptions
(1) It is unlawful for any person to manufacture, own, buy, sell, loan, furnish, transport, or
have in possession or under control, any machine gun, short-barreled shotgun, or short-barreled
rifle; or any part designed and intended solely and exclusively for use in a machine gun, shortbarreled shotgun, or short-barreled rifle, or in converting a weapon into a machine gun, shortbarreled shotgun, or short-barreled rifle; or to assemble or repair any machine gun, short-barreled
shotgun, or short-barreled rifle.
(2) This section shall not apply to:
(a) Any peace officer in the discharge of official duty or traveling to or from official duty, or to
any officer or member of the armed forces of the United States or the state of Washington in the
discharge of official duty or traveling to or from official duty; or
(b) A person, including an employee of such person if the employee has undergone
fingerprinting and a background check, who or which is exempt from or licensed under federal
law, and engaged in the production, manufacture, repair, or testing of machine guns, shortbarreled shotguns, or short-barreled rifles:
(i) To be used or purchased by the armed forces of the United States;
or

(ii) To be used or purchased by federal, state, county, or municipal law enforcement agencies;
(iii) For exportation in compliance with all applicable federal laws and regulations.

(3) It shall be an affirmative defense to a prosecution brought under this section that the
machine gun, short-barreled shotgun, or short-barreled rifle was acquired prior to July 1, 1994,
and is possessed in compliance with federal law.
(4) Any person violating this section is guilty of a class C felony.

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