USCA1 Opinion
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
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No. 92-1990
JOHN VEIGA,
Plaintiff, Appellant,
v.
JOHN MCGEE,
Defendant, Appellee.
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APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Mark L. Wolf, U.S. District Judge]
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Before
Torruella, Selya and Stahl,
Circuit Judges.
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Deval L. Patrick, with whom Michael D. Ricciuti, Reginal C.
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Lindsay, and Hill & Barlow, were on brief for appellant.
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John P. Roache, with whom Hogan, Roache & Malone, was on
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brief for appellee.
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June 22, 1994
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TORRUELLA, Circuit Judge. This appeal requires us to
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determine the meaning of the term "disorderly" as used in the
Massachusetts Alcoholism Treatment and Rehabilitation Act
("Chapter 111B"), generally known as the Protective Custody Law,
Mass. Gen. L. ch. 111B, 11 et seq., and whether the district
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court appropriately charged the jury as to the standard for
determining if the conduct of appellant John Veiga ("Veiga"),
during the early morning hours of December 6, 1987, provided a
basis for police officers reasonably to conclude that he was
"incapacitated" within the meaning of that statute.
BACKGROUND
BACKGROUND
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At approximately 2:00 a.m. on December 6, 1987,
appellant John Veiga, a 23-year-old medical student at Boston
University School of Medicine, was with a friend, Jessica
Goldhirsch ("Goldhirsch"), in the front seat of Goldhirsch's car
when Officers John McGee and David Johnson, who were on routine
patrol, drove by and noticed the car. The car was parked a few
feet behind several stores in an otherwise deserted parking lot
near the corner of Dudley and Belden streets in Boston. Near the
parking lot were a few occupied homes and apartment buildings.
Upon noticing the car, Officer Johnson pulled the
police wagon he was driving into the parking lot and turned the
"take-down" lights (a set of bright lights) on Goldhirsch's car.
Officer McGee then alighted from the vehicle, approached the
passenger side of Goldhirsch's car with a lighted flashlight, and
shined the light into the car. He proceeded to inquire as to the
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ownership of the car. Goldhirsch, who had driven the car to the
parking lot and was sitting in the driver's seat, produced her
license and the registration, while Veiga remained seated quietly
in the passenger seat of Goldhirsch's car.
After Officer McGee determined that Goldhirsch's papers
were in order and gave her back her license and registration, the
officer walked over to the passenger's side of the car and asked
Veiga for identification. Veiga responded by asking why Officer
McGee wanted to know his name. According to the police officers,
Veiga's response was loud and boisterous. Officer McGee again
asked Veiga to show him some identification. Veiga opened the
car door, got out, and said he would not give McGee any
information. Officer McGee testified that he asked Veiga six
more times by saying "Sir, I just want to see some
identification. I just want to know who you are, why you're
here," and Veiga responded similarly by asking loudly why the
police were asking him questions, and what he had done wrong. At
trial, the officers testified that Veiga was "ranting and raving"
and protesting that the police had no right to ask him any
questions. This entire colloquy lasted four or five minutes.1
Eventually, Officers McGee and Johnson handcuffed
Veiga, and as they were doing this, informed him that he was
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1 At trial, Officer Johnson admitted that Veiga was not profane,
that he did not call the officers names, and that McGee did not
have to raise his voice to be heard over Veiga. Officer McGee
also admitted that Veiga was rational and coherent.
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being placed in protective custody.2 They then led Veiga into
the police wagon and drove him to the station. Veiga did not
resist being handcuffed or being led into the wagon.
The officers maintain that during their encounter with
Veiga, he was unsteady on his feet, gesturing with his arms, that
his speech was slurred and that he was emitting an odor of
alcohol from his person and his breath.3 At the station, Veiga
denied that he had been drinking and said that the officers had
no reason to take him to the station and no reason to ask him who
he was and why he was in the parking lot.
At the station, Officer McGee spoke with Goldhirsch and
informed her that the police were going to hold Veiga at the
station. Veiga was placed in a cell with another person and
released at approximately 8:OO o'clock that morning.
Veiga subsequently brought this action against Officers
McGee and Johnson, and against the City of Boston (the "City").
In his complaint, Veiga alleged that the officers violated his
rights under the United States Constitution and state law by
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2 At trial, Officers McGee and Johnson both admitted that they
did not suspect either Goldhirsch or Veiga of any specific
criminal activity that night.
3 Whether the police officers had a reasonable basis for
concluding that Veiga was intoxicated was a highly contested
issue at trial. Veiga contends that he did not consume any
alcoholic beverages between the evening of December 5 and the
early morning hours of December 6. The record contains
substantial evidence that while at the medical school on December
5, Veiga studied histology and dissected a cadaver and that these
activities brought him into contact with several chemicals,
including acetone, which could have accounted for odors emitting
from his body.
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seizing him without justification. Specifically, Veiga sued
Officers McGee and Johnson under 42 U.S.C. 1983 for violations
of his federal civil rights, including his First Amendment right
to freedom of expression and his Fourth Amendment right to be
free from unlawful seizure. Veiga also brought claims for
battery; for false imprisonment; and for infliction of emotional
distress. Veiga also sued the City for negligence under the
Massachusetts Tort Claims Act, Mass. Gen. L. ch. 258.4
At trial, both Officers Mcgee and Johnson testified
that they told Veiga he could take a breathalyzer examination and
that if he passed the test, he would be released. According to
Officer Johnson, Veiga replied that he was not drunk, that the
police were going to have to prove he was drunk, and that he
would not take any test. The officers further maintain that
Veiga refused to sign the protective custody form in the space
labeled "I was informed of my right to a breathalyzer test."
Veiga testified that he was never informed of his right to take a
breathalyzer test.5
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4 Veiga also raised other civil rights claims against the City
based on various alleged customs, policies and practices. The
Court sua sponte severed these claims for a separate trial.
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These claims are not part of this appeal.
5 Chapter 111B, 8 provides in part:
Any person assisted by a police officer
to a police station shall have the right,
and be informed in writing of said right,
to request and be administered a
breathalyzer test. . . . If any person
who is administered a breathalyzer test,
under this section, and evidence from
said test indicates that the percentage
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The jury specifically found that the officers failed to
inform Veiga of the reasons he was regarded as incapacitated and
of what he would have to do to be released from protective
custody.
On all charges, however, the jury found in favor of
Officers McGee and Johnson and the City of Boston.6 The
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of alcohol in his blood is more than five
one hundredths there shall be no
presumption made based solely on the
breathalyzer test. In such instance a
reasonable test of coordination or speech
coherency must be administered to
determine if said person is intoxicated.
Only when such test of coordination or
speech coherency indicates said person is
intoxicated shall he be placed in
protective custody at a police station or
transferred to a facility.
6 The jury answered the special verdict form as follows:
(1) Was John Veiga put in protective
custody without a reasonable basis to
believe he was incapacitated? "No"; (2)
Has John Veiga proven that the exercise
of his right not to answer questions
and/or his right to oppose verbally, the
actions of the police was a substantial
factor in the decision to place him in
protective custody? "No"; (3) Was a
battery committed on John Veiga? "No";
(4) Was excessive force used on John
Veiga? "No"; (5) Did either or both
defendants intentionally cause John Veiga
emotional distress? "No"; (6) Did one or
more police officers acting individually
or jointly, negligently deprive John
Veiga of his right to (a) be administered
a breathalyzer test? "No"; (b) be
released from protective custody when
there was no longer a reasonable basis to
believe he was incapacitated? "No";
(7)(a) Did John McGee or David Johnson
fail to inform John Veiga of the reasons
he was regarded as incapacitated and what
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district court subsequently denied Veiga's "Motion For a Judgment
as a Matter of Law or, in the Alternative, for a New Trial." On
appeal, Veiga contends that he is entitled to judgment in his
favor. Alternatively, he contends that errors in the district
court's instructions to the jury entitle him to a new trial.
THE PROTECTIVE CUSTODY LAW
THE PROTECTIVE CUSTODY LAW
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Under Chapter 111B, "[a]ny person who is incapacitated
may be assisted by a police officer with or without his consent
to his residence, to a facility or to a police station." Mass.
Gen. L. ch. 111B, 8. In its definitional section, the law
defines "incapacitated" as "the condition of an intoxicated
person who, by reason of the consumption of intoxicating liquor
is (1) unconscious, (2) in need of medical attention, (3) likely
to suffer or cause physical harm or damage property, or (4)
disorderly." Mass. Gen. L. ch. 111B, 3. Thus, under Chapter
111B, in order to take a person into protective custody, the
police must believe that he is both intoxicated and either
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unconscious, in need of medical attention, likely to suffer or
cause physical harm or damage, or disorderly.
Veiga maintains that Officers McGee and Johnson
unlawfully detained him in violation of the First and Fourth
Amendments to the United States Constitution. On appeal, Veiga
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he would have to do to be released from
protective custody? "Yes"; and (7)(b) If
you answered Question 7(a) "Yes," did
John McGee or David Johnson intentionally
fail to give John Veiga this information?
"No."
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contends that the district court erred by improperly instructing
the jury as to the meaning of the term "disorderly", as that term
is used in the Protective Custody Law. See infra p. 14. He
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argues that the district court's erroneous definition of the term
"disorderly" permitted the jury to approve Veiga's seizure by
Officers McGee and Johnson simply because he objected loudly to
their questioning of him. He contends that this definition
represents a departure from Massachusetts law which excludes
speech and expressive conduct from the definition of
"disorderly," and that the definition is, furthermore,
unconstitutional as violative of the First Amendment.
We decide this case on Fourth Amendment and state
statutory grounds rather than on First Amendment principles. In
interpreting Chapter 111B we defer to state court decisions,
recognizing that "[t]he Supreme Judicial Court, not this court,
is the authoritative interpreter of state statutes." Sabetti v.
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DiPaolo, 16 F.3d 16, 19 (1st Cir. 1994); Rundlett v. Oliver, 607
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F.2d 495, 500 (1st Cir. 1979).
A. Meaning of the term "disorderly" under Massachusetts law
A. Meaning of the term "disorderly" under Massachusetts law
Well-established principles of statutory construction
dictate that when a statute includes a term well-known to the
common law, courts should presume that the legislature intended
the term to be interpreted as in the common law. "[T]he
interpretation of well-defined words . . . in the common law
carries over to statutes dealing with the same or similar subject
matter. . . . Furthermore, common-law meanings are assumed to
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apply even in statutes dealing with new and different subject
matter, to the extent that they appear fitting and in the absence
of evidence to indicate contrary meaning." 2B N. Singer,
Sutherland Statutory Construction 50.03 at 103 (5th ed. 1992);
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see also Mass. Gen. L. ch. 4, 6 ("[w]ords and phrases shall be
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construed according to the common and approved usage of the
language; but technical words and phrases and such others as may
have acquired a peculiar and appropriate meaning in law shall be
construed and understood according to such meaning").
The term "disorderly" is not defined anywhere in
Chapter 111B. Nevertheless, the term "disorderly" has a long
common law heritage. See Alegata v. Commonwealth, 353 Mass. 287,
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302, 231 N.E.2d 201, 210-11 (1967) (the statute prohibiting
disorderly conduct "has had a long history, dating from the early
17th century" and "recent case law and legal scholarship have
narrowed the scope of the prohibition"). By not defining the
term in the statute, "the Legislature is presumed to have
intended to incorporate the common law definition . . . at least
insofar as it is not inconsistent with the terms or the purpose
of the statute." Commonwealth v. Ricardo, 26 Mass. App. Ct. 345,
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356, 526 N.E.2d 1340, 1347 (1988) (internal quotation and
citations omitted).
Massachusetts courts have defined the term "disorderly"
in other contexts. In Alegata, 353 Mass. at 303, 231 N.E.2d at
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210-11, the Supreme Judicial Court of Massachusetts, interpreting
the term "disorderly" within the meaning of the Massachusetts
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statute providing for criminal punishment of disorderly persons,
Mass. Gen. L. ch. 272, 53, approved the following Model Penal
Code definition of the offense of disorderly conduct for use in
Massachusetts:
A person is guilty of disorderly conduct
if, with purpose to cause public
inconvenience, annoyance or alarm, or
recklessly creating a risk thereof, he:
(a) engages in fighting or threatening,
or in violent or tumultuous behavior; or
(b) makes unreasonable noise or
offensively coarse utterance, gesture or
display, or addresses abusive language to
any person present; or (c) creates a
hazardous or physically offensive
condition by any act which serves no
legitimate purpose of the actor.
Id.
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In Commonwealth v. A Juvenile, 368 Mass. 580, 334
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N.E.2d 617 (1975), the Supreme Judicial Court of Massachusetts,
interpreting the same statute, significantly limited the
definition of "disorderly" by striking subsection (b) from the
Model Penal Code language imported by Allegata into 53. The
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court did so because it found that the "portion of 53 which may
be applied to 'unreasonable noise or offensively coarse
utterance, gesture or display, or . . . [addressing] abusive
language to any person present'" was unconstitutionally
overbroad. A Juvenile, 368 Mass. at 586, 334 N.E.2d at 622.
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Specifically, the court found subsection (b) constitutionally
untenable because it was "not sufficiently narrowly and precisely
drawn to ensure that it reach only that speech which the state
has a justifiable and compelling interest in regulating." Id.
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After striking subsection (b), the court concluded that "as
reaching to conduct (other than expressive conduct), the . . .
[remaining] provision is neither unconstitutionally overbroad nor
vague." Id. The court further stated:
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[I]n order to ensure that the statute as
limited not be susceptible of application
to conduct which is expressive and
therefore protected by the First
Amendment, we further construe the
section to relate exclusively to
activities which involve no lawful
exercise of a First Amendment right. In
this regard the intent to cause, or
reckless disregard of, public
inconvenience, annoyance, or alarm must
be assessed in terms of whether the
conduct was engaged in with intent to
exercise a First Amendment right and
whether the interest to be advanced is
insignificant in comparison to the
inconvenience, annoyance, or alarm
caused.
Id. at 628 (citation omitted); see also Commonwealth v.
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Feigenbaum, 404 Mass. 471, 473, 536 N.E.2d 325, 327 (1989)
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(reaffirming these principles); Commonwealth v. Richards, 369
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Mass. 443, 445, 446 n.2, 340 N.E.2d 892, 896 n.2 (1976)
(expressive conduct cannot be sanctioned as disorderly conduct).
Appellees contend that the definition of "disorderly"
as used in non-penal Chapter 111B is not the same definition of
"disorderly" applied to the criminal statute, Mass. Gen. L.
ch. 272, 53, as enunciated in A Juvenile. They argue that
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under Chapter 111B, "disorderly" may include making unreasonable
noise late at night in a residential neighborhood. Moreover,
they contend that Veiga's reliance on the definition of the crime
of disorderly conduct as narrowed from the Model Penal Code
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definition in A Juvenile is misplaced because Veiga was neither
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arrested nor charged with the crime of disorderly conduct under
Mass. Gen. L. ch. 272, 53. Appellees' argument is not
persuasive for at least two reasons.
First, in the absence of a statutory definition of a
term, the understanding of that term in an analogous statute is
an excellent guide to interpretation. See, e.g., Burno v.
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Commissioner of Correction, 399 Mass. 111, 120, 503 N.E.2d 16, 22
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(1987); Donnelly v. Contributory Retirement Appeal Bd., 15 Mass.
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App. 19, 22, 443 N.E.2d 416, 418 (1982). The fact that one
statute is formally classified as penal, whereas the other is
not, does not detract from the former's value as a guide to the
latter, or vice versa, so long as the two statutes are genuinely
analogous in substance and effect. Cf. 2B Sutherland Statutory
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Construction, supra, at 51.03 ("Characterization of the object
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or purpose is more important than characterization of subject
matter in determining whether different statutes are closely
enough related to justify interpreting one in light of the
other.").
The relationship between the two statutes we construe
in pari materia today is a very close one. Chapter 111B replaced
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prior laws which provided for criminal punishment of public
inebriants.7 In place of punishment, Chapter 111B provides for
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7 Section 18, Acts 1971, Ch. 1076, provides as follows:
Any existing ordinance, by-law,
resolution or other legislation of a
county, municipality or other
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the treatment and rehabilitation of alcoholics and evidences a
concern for the health and safety of persons incapacitated by the
effects of alcohol.8 The law accomplishes two objectives.
First, Chapter 111B attempts to get intoxicated individuals who
engage in disorderly conduct off the streets, protecting the
public until they sober up -- a goal previously accomplished by
criminal statutes. Second, Chapter 111B looks out for the health
and safety of those individuals, attempting to protect
incapacitated persons from themselves. Despite its non-penal
objectives, the effect of Chapter 111B is, nevertheless, to
deprive the allegedly incapacitated person of his or her liberty,
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jurisdiction within the commonwealth
establishing the offense of public
intoxication or any equivalent offense is
hereby repealed. No county, city, town
or other political subdivision of the
commonwealth shall adopt any law,
ordinance, by-law, resolution or
regulation having the force of law which
provides that public intoxication or
being found in any place in an
intoxicated condition shall constitute an
offense, a violation of the subject of
criminal or civil penalties or sanctions
of any kind or in any way inconsistent
with the provisions of chapter one
hundred and eleven B of the General Laws.
8 Chapter 111b, 7 provides for examination by a physician if
there is any concern about the health or immediate treatment
needs of an incapacitated person and section 4 contains the
following language:
The department [of Health] shall
coordinate matters affecting alcoholism
in the commonwealth, shall establish and
conduct a program for the treatment of
intoxicated persons and alcoholics . . .
their rehabilitation and the prevention
of alcoholism . . . .
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by permitting detention at a police station.
There is a second reason that appellees' argument
fails. Were we to find that Chapter 111B's definition of
"disorderly" does not incorporate a narrow definition like the
definition established by Massachusetts case law, Chapter 111B
would be unconstitutionally vague because "disorderly" is not
otherwise clearly defined by the statute. "It is a basic
principle of due process that an enactment is void for vagueness
if its prohibitions are not clearly defined." Grayned v. City of
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Rockford, 408 U.S. 104, 108 (1972). "[I]f arbitrary and
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discriminatory enforcement is to be prevented, laws must provide
explicit standards for those who apply them." Id. In the
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absence of clear legislative intent, we will not adopt an
interpretation of a statute that would render it constitutionally
suspect. United States v. Thompson, 452 F.2d 1333, 1337 (D.C.
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Cir. 1971), cert. denied, 405 U.S. 998 (1972); see also Alegata,
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353 Mass. at 290, 231 N.E.2d at 203 (a "statute must be
construed, if fairly possible, so as to avoid not only the
conclusion that it is unconstitutional but also grave doubts upon
that score") (citation and internal quotation omitted).
For the foregoing reasons, we find that the term
"disorderly" should be interpreted in accordance with the
definition given that term by the Supreme Judicial Court of
Massachusetts in the case of A Juvenile and its progeny.
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B. Jury instructions
B. Jury instructions
The district court instructed the jury as to the term
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"disorderly" as follows:
Whether a person is disorderly depends on
his conduct and the time, place and
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manner of his speech . . .
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. . .
For the purpose of this case, however,
the law does not allow police officers to
take the content of what was said into
account in deciding whether Mr. Veiga was
disorderly.
More specifically, in this case
Mr. Veiga was engaged in disorderly
conduct if when a person causes public
inconvenience, annoyance or alarm or
acting recklessly to create a risk of
public inconvenience, annoyance or alarm
he engaged in what is called multiple
behavior.
In this context recklessness means
acting with a conscious disregard of
substantial and unjustifiable risk of
public inconvenience, annoyance or alarm.
Multiple behavior is excessively
unreasonable annoyance which creates a
public nuisance. This would include
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excessively unreasonable noise late at
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night in a residential neighborhood so
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that people in the privacy of their homes
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are unable to avoid that noise.
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You may include all of the facts and
circumstances of this case, including the
reasons for any noise in deciding whether
it was, among other things, excessively
unreasonable.
. . .
It would be unlawful for the police
officers to detain Mr. Veiga for refusing
to answer their questions or for
challenging them. They could, however,
take into account his conduct and the
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manner in which he expressed himself but
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not the content of what he said or the
language that he used in deciding whether
he was incapacitated.
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(Emphasis added).9
The district court correctly instructed the jury that
"[i]t would be unlawful for the police officers to detain Mr.
Veiga for refusing to answer their questions or for challenging
them." See Houston v. Hill, 482 U.S. 451, 461 (1987) ("the First
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Amendment protects a significant amount of verbal criticism and
challenge directed at police officers"); Norwell v. Cincinnati,
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414 U.S. 14 (1973) (per curiam) (reversing conviction for
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disorderly conduct where defendant was "loud and boisterous,"
stating that a person "is not to be punished for nonprovocatively
voicing his objection to what he obviously felt was a highly
questionable detention by a police officer").
The district court's definition of "disorderly,"
however, would permit a jury to find that persons are
"disorderly" based solely on the manner in which they express
themselves. This definition contravenes A Juvenile, in which the
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Massachusetts Supreme Judicial Court expressly excised from
"disorderly" analysis both "speech and expressive conduct." A
_
Juvenile, 368 Mass. at 593, 334 N.E.2d at 625. After all, if the
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SJC thought that protected speech uttered in a loud voice could
lawfully be regulated, then it would not have felt compelled to
extricate the "mak[ing of] unreasonable noise" from the
definition of disorderly.
The district court's definition also contravenes
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9 Following the jury instructions, counsel for Veiga objected to
the court's definition of "disorderly" properly preserving this
issue for appeal.
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Massachusetts court interpretations of the term "tumultuous
behavior" of subsection (c) of the Model Penal Code definition of
"disorderly." Massachusetts courts have upheld convictions for
disorderly conduct only where "defendants' conduct -- independent
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of any speech or expressive conduct --" warranted the conviction.
Commonwealth v. Carson, 411 N.E.2d 1337 (Mass. App. Ct. 1980);
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see also Richards, 340 N.E.2d at 896 ("evidence that the
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defendants engaged in fighting and violent or tumultuous
behavior, entirely apart from any speech of theirs [warranted
submission of disorderly conduct complaints] to the jury with
instructions, inter alia, that the speech of the defendants was
not to be considered as evidence of guilt"); United States v.
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Pasqualino, 768 F. Supp. 13 (D. Mass. 1991) (rejecting contention
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that person was "unruly and tumultuous" where arrest was grounded
solely on the conclusion that the defendant was loud, and,
consequently, that he created a disturbance). In any event,
Veiga's behavior cannot conceivably be brought within the SJC's
careful definition of tumultuous behavior as "involving riotous
commotion and excessively unreasonable noise so as to constitute
a public nuisance." A Juvenile, 334 N.E.2d at 628.
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Moreover, by instructing the jury that "disorderly"
included creating "excessively unreasonable noise late at night
in a residential neighborhood so that people in the privacy of
their homes are unable to avoid that noise," the court improperly
imported into the definition of "disorderly" elements of the
offense of disturbing the peace. In criminal law, the crime of
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disturbing the peace is distinct from that of disorderly conduct.
Mass. Gen. L. ch. 272, 53; Alegata, 353 Mass. at 302, 231
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N.E.2d at 210 ("Section 53 explicitly differentiates 'idle and
disorderly' from 'disturbers of the peace.'"). Under
Massachusetts law, speech alone does not constitute "disorderly"
conduct and Chapter 111B does not authorize police to take into
protective custody "disturbers of the peace." See supra note 7.
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THE FOURTH AMENDMENT
THE FOURTH AMENDMENT
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The Fourth Amendment entitles an individual to "the
possession and control of his own person, free from all restraint
or interference of others, unless by clear and unquestionable
authority of law." Terry v. Ohio, 392 U.S. 1, 9 (1967) (quoting
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Union Pac. R. Co. v. Botsford, 141 U.S. 250, 251 (1891)). The
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Supreme Court has stated that "this inestimable right of personal
security belongs as much to the citizen on the streets of our
cities as to the homeowner closeted in his study . . . ." Terry,
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392 U.S. at 9. Unquestionably, Veiga was entitled to the
protection of the Fourth Amendment as he stood in the parking lot
in Boston. Id.
__
In order to justify "official intrusion upon the
constitutionally protected interests of the private citizen . . .
the police officer must be able to point to specific and
articulable facts which, taken together with rational inferences
from those facts, reasonably warrant that intrusion." Terry, 392
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U.S. at 21 (internal quotation and citations omitted). It is
well established that "the police [may] not interfere with the
freedom of private persons unless it be for specific, legitimate
reasons." Duran v. Douglas, 904 F.2d 1372, 1376 (9th Cir. 1990)
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(citation omitted).
In the present case, the officers have offered no
common-law ground for detaining Veiga. In fact, at trial,
Officers McGee and Johnson both admitted that they did not
suspect either Goldhirsch or Veiga of any specific criminal
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activity. See Brown v. Texas, 443 U.S. 47 (1979) (finding
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unlawful seizure under the Fourth Amendment and reversing
conviction of an individual arrested, after he refused to
identify himself and angrily asserted that the officers had no
right to stop him where the officers did not claim to suspect him
of any criminal activity). Instead, the officers have asserted
that Veiga was "incapacitated" and that his detention was
therefore authorized under Chapter 111B.
Whether the police officers acted reasonably in
detaining Veiga was a question of fact for the jury to decide.
In order for the jury to make this determination, it had to
understand the circumstances under which Chapter 111B does and
does not authorize detention. The jury was given a faulty
instruction on this score. Although Chapter 111B did not
authorize Officers McGee and Johnson to take Veiga into custody
for the manner in which he expressed himself, the court failed to
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make this clear when instructing the jury as to what it might
consider in determining whether Veiga was "disorderly." See
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supra pp. 15-16. Because of the faulty jury instruction, the
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jury's response to question 2 of the special verdict form, see
___
supra note 6, cannot be interpreted as a finding that Veiga was
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detained for a permissible reason. The jury's response could
have been tainted by the misinformation it was given concerning
the officers' right to arrest Veiga for disorderliness. When the
jury was asked whether Veiga was taken into custody because he
exercised his "right not to answer questions and/or his right to
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oppose verbally the actions of the police," it may have been
under the false impression that the protection afforded to those
rights extends to content alone. Because Chapter 111B did not
authorize officers to detain Veiga for the manner in which he
______
expressed himself, a detention for that reason would amount to an
unlawful seizure under the Fourth Amendment and Veiga could
therefore establish a Section 1983 violation.10
Because the determination of whether Veiga was detained
for a valid reason turns largely on what state law authorizes,
the erroneous jury instruction "could have affected the result of
the jury's deliberations" and therefore "necessitates a new
trial." Allen v. Chance Mfg. Co., 873 F.2d 465, 469 (1st Cir.
_____ ________________
____________________
10 We acknowledge that such a detention would not necessarily
violate the First Amendment of the federal Constitution; under
the prevailing view of the free speech clause, the government may
in some contexts impose reasonable restrictions on the time,
place and manner of speech so long as those restrictions are made
without reference to the content of the regulated speech. R.A.V.
______
v. City of St. Paul, 112 S. Ct. 2538, 2544 (1992); Ward v. Rock
________________ ____ ____
Against Racism, 491 U.S. 781, 791 (1989). But the negative
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freedom afforded by the First Amendment may not in itself provide
a positive justification for a Fourth Amendment invasion.
Furthermore, we recognize, without deciding, that under
certain circumstances, yelling at the police could be a
statutorily proscribed breach of the peace and be a legitimate
basis for detention. In the present case, however, screaming at
the police, without more, was not a legitimate reason for
detaining Veiga under the Fourth Amendment. See Duran, 904 F.2d
___ _____
at 1377 (detention of individual yelling profanities at police,
without more, is not a legitimate reason for police interference
with personal autonomy). There are specific statutory and common
law provisions that regulate breaches of the peace. It seems to
us that Chapter 111B is not one of them and should not be used to
curtail such behavior. In any event, no evidence was presented
to suggest that Veiga did in fact breach the peace. No evidence
suggested that any neighbors complained or that a single light
went on in any of the nearby apartment buildings as a result of
Veiga's presence in the parking lot.
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1989).
MOTION FOR JUDGMENT NOTWITHSTANDING THE VERDICT
MOTION FOR JUDGMENT NOTWITHSTANDING THE VERDICT
_______________________________________________
The denial of a motion for a judgment notwithstanding
the verdict under Fed. R. Civ. P. 50 is reviewed de novo.
__ ____
Hendricks & Assoc., Inc. v. Daewoo Corp., 923 F.2d 209, 214 (1st
________________________ _____________
Cir. 1991). We may "grant judgment notwithstanding the verdict
only after a determination that the evidence could lead a
reasonable person to only one conclusion." Id. (internal
___
quotation and citation omitted). We are "compelled, therefore,
even in a close case, to uphold the verdict unless the facts and
inferences, when viewed in the light most favorable to the party
for whom the jury held, point so strongly and overwhelmingly in
favor of the movant that a reasonable jury could not have arrived
at this conclusion." Id. (internal quotation and citation
___
omitted).
We need not decide whether the evidence can support a
finding that Veiga was "disorderly" within the meaning of Chapter
111B, as we have interpreted it in this opinion. This case must
be retried because of the faulty jury instruction, and, in any
event, in order to find that the police were justified in taking
Veiga into protective custody, the jury need not find that Veiga
was "disorderly." The jury could alternatively find that Veiga
was incapacitated within the meaning of Chapter 111B, if by
reason of intoxicating liquor, he was (1) unconscious, (2) in
need of medical attention, or (3) likely to suffer or cause
physical harm or damage. Mass. Gen. L. ch. 111B, 3. The
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police officers and the City have not argued that Veiga was
either unconscious or in need of medical attention. They have,
however, argued that Veiga was likely to suffer or cause physical
harm or damage.
Veiga argues that their contention that he was at risk
of causing harm to himself or to others is merely a belated
excuse to try to justify the police officers' actions. Even
though our reading of the record might lead us to agree with
Veiga, the police officers' claim that Veiga was likely to cause
or suffer harm presents a question of fact or credibility of the
witnesses for the jury to decide. In deciding a motion for
judgment as a matter of law, we "may not consider the credibility
of witnesses, resolve conflicts in testimony, or evaluate the
weight of the evidence." Hendricks, 923 F.2d at 214. After a
_________
careful review of the record, we must conclude that the evidence,
taken in the light most favorable to the officers and the City,
could support a finding that Veiga was likely to suffer harm or
cause physical damage to himself or someone else. Therefore,
Veiga is not entitled to judgment in his favor as a matter of
law.
In light of the improper jury instruction defining
"disorderly" within the meaning of Chapter 111B, we vacate the
judgment in this case and remand for a new trial consistent with
this opinion.
Vacated and remanded for a new trial.
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