Sherwood High School violated a student's First Amendment rights when it expelled him for one year after learning he had written a "hit list'' at home naming 23 students and one teacher, the teen's lawyer argued Tuesday before a panel of federal appeals judges in Portland.

The school didn't have the authority to regulate the junior's "off-campus speech,'' attorney Adam S. Heder said. The student never intended to share the list with anyone, so it wasn't a "true threat," Heder said.

A lawyer for the Sherwood School District countered that this particular "off-campus speech" raised a legitimate public safety concern, disrupted the high school and made students feel unsafe.

Preventing a school from taking necessary precautions against a "would-be" school shooter plotting from home presents "an untenable outcome," said the district's lawyer Blake H. Fry.

The three-judge panel of the 9th U.S. Circuit Court of Appeals appeared to agree that the school initially took reasonable action against the student, but two of the judges questioned the length of the expulsion and asked why the discipline would remain on his permanent record long after the concern about the 2014 threat subsided.

"The school's response to threats of violence is not necessarily unconstitutional once it came to their attention,'' said Judge Cathy Ann Bencivengo. "Can it become unconstitutional by becoming punitive instead of protective ... keeping him off campus for a year when there's no evidence he ever intended to carry out any of these threats?"

Sherwood police learned of the list in early September 2014 after the 16-year-old's mother found it in a notebook while cleaning her son's room. She told her therapist the next day, and the therapist told police.

One page was titled "My Hit-List,'' accompanied by notations, "I am God'' and "All These People Must Die'' with the word 'must' underlined. It named nearly two dozen Sherwood High students and a teacher.

The notebook also contained the teen's suicidal thoughts with drawings of him executing his father while his mother and sister lay dead on the floor with head wounds. Written beside the drawings were the words: "I want to mutilate my family.''

"I thought a lot about killing people," wrote the student, only identified as "CLM'' in court. "Just to feel all the stress melt away for a moment. I don't know why I think killing will do this, but it just feels right."

Once police were alerted, the mother ended up taking her son to the department's headquarters as officers responded to the family's home and found guns, hundreds of rounds of ammunition, a bow and arrows and grenades in the teen's bedroom.

The junior admitted to police he wrote the list about four months earlier and those on it were people he didn't like or who had treated him poorly. The teen was taken into custody for a mental health evaluation, held overnight and released the next day.

Police called the Sherwood school superintendent, who notified the high school principal. That night, the principal had the student's locker searched. No weapons were found. The next morning, school officials divided up the names on the hit list and notified the students' parents.

The police and the district sent out press releases on Sept. 10, 2014. News crews came to the school, some students stayed home. The school initially suspended the student, then recommended a one-year expulsion for making "threats of violence that have caused a distinct and substantial disruption to the school environment.'' An expulsion hearing was held Sept. 22, 2014.

A forensic psychologist evaluated the teen in November 2014 and declared there was no evidence that the teen posed harm to others, but the district didn't alter its expulsion.

The student and his parents filed a lawsuit against the school in June 2015, alleging violations of his free speech, due process and equal protection. On May 16, 2017, a federal district judge in Portland adopted a magistrate's recommendations to dismiss the case.

Heder asked the appellate judges in a brief filed in the case not to be distracted by the "hysteria and political debate" around mass shootings "but to firmly and unequivocally render an opinion which preserves, protects, and reaffirms the most basic of our civil rights: freedom of speech."

"This was truly private speech never intended to be disclosed,'' Heder argued.

Judge Consuelo M. Callahan asked, "Is it your position the school should have done nothing?''

Heder replied that the school should have administered a thorough threat assessment of the student. When the school found out about the list, the student was already in the custody of the police and guns were removed from the home, he said. "This was not about preventing a safety concern at that point. This was punitive,'' said.

The school district said the length of the discipline doesn't fall under the court's authority.

"Once you concede some sort of discipline is constitutional, it doesn't matter where the degree of discipline is at that point,'' Fry said. "It's not the court's business to access the propriety of the discipline.''

Judge Raymond C. Fisher noted that the 9th Circuit previously ruled in Lavine v. Blaine School District that school officials didn't violate a student's First Amendment right when they temporarily expelled him for submitting a violent-themed poem to his English teacher, but barred the district from including the discipline in the student's file, which could "permanently blemish'' his record and harm his efforts to gain future jobs.

Considering the Lavine ruling, Fisher asked, why wouldn't Sherwood's documentation of the student's expulsion on his record be unconstitutional?

Discipline is going to end up in a student's record, whether it's a suspension or an expulsion, Fry said.

The student did not return to Sherwood High School. His family moved and the teen graduated from another high school in Oregon, according to his lawyer.

The federal appeals court, based in San Francisco, holds hearings about seven times a year in Portland. The three-judge panel will now consider the written briefs and court arguments and issue a ruling some time in the future.

-- Maxine Bernstein

mbernstein@oregonian.com

503-221-8212

@maxoregonian