Com. v. Orlando

• Decision Date: 24 January 1977
• Parties: COMMONWEALTH v. David ORLANDO.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 310

359 N.E.2d 310

371 Mass. 732

COMMONWEALTH

v. David ORLANDO.

Supreme Judicial Court of Massachusetts, Norfolk.

Argued Oct. 5, 1976.

Decided Jan. 24, 1977.

Martin R. Rosenthal, Boston, for defendant.

Charles J. Hely, Asst. Dist, Atty., for the Commonwealth.

Before HENNESSEY, C.J., and BRAUCHER, KAPLAN and WILKINS, JJ.

HENNESSEY, Chief Justice.

The defendant appealed to the Superior Court from a finding of the District Court of Western Norfolk that he was guilty of disturbing the peace under G.L. c. 272, § 53. ¹ Prior to trial in the Superior Court, he filed a motion to dismiss alleging that the disturbing the peace statute is unconstitutionally vague and overbroad. The Superior Court judge reported to this court the question whether he should grant the defendant's motion to dismiss. The parties agree that evidence shows that the defendant hurled objects and verbally insulted individuals at approximately 11:45 P.M., near 'The Pub' in Walpole.

This court has held, in Commonwealth v. Jarrett, 359 Mass. 491, 497--498, 269 N.E.2d 657 (1971), that the law of disturbing the peace as defined in that case is neither vague nor overbroad, and consequently does not violate the due process clause of the Fourteenth Amendment to the United States Constitution. However, the defendant claims that a recent decision of this court with regard to the definition of a disorderly person, Commonwealth v. A Juvenille, --- Mass. ---, ^a 334, N.E.2d 617 (1975) and recent decision of the United States Supreme Court have undermined the basis of the Jarrett decision, supra. We disagree and adhere to our views expressed in Jarrett that the charged crime of disturbing the peace on its face is neither overbroad nor vague. We therefore conclude that the defendant's motion to dismiss should be denied.

1. A criminal law is overbroad if it punishes activities which are constitutionally protected, Thornhill v. Alabama, 310 U.S. 88, 97, 60 S.Ct. 736, 84 L.Ed. 1093 (1940), and it cannot be enforced against any defendant until or unless a limiting construction or partial invalidation narrows its scope so that it does not threaten protected expression. Broadrick v. Oklahoma, 413 U.S. 601, 613, 93 S.Ct. 2908, 37 L.Ed.2d 830 (1973). However, a defendant cannot argue successfully that a law is facially overbroad when a limiting construction has been applied to the challenged law. Ibid. We have construed the Massachusetts disturbing the peace law so that it excludes protected expression from its scope. Commonwealth v. Jarrett, 359 Mass. 491, 269 N.E.2d 657 (1971). Consequently, there is no reason to find that it is overbroad on its face or to strike it down. Contrast COMMONWEALTH V. A JUVENILE, --- MASS. --, 334 N.E.2D 617 (1975)^B. If the law is susceptible in marginal cases to unconstitutional applications, we will handle such cases when they arise. ²

2. We turn now to the defendant's contention of unconstitutional vagueness. We rejected this premise in the Jarrett case, supra. We reject it now. Cases decided since Jarrett cast no doubt on our conclusions in that case. On the contrary by reason of their informative nature, these more recent cases (cited hereafter in this opinion, and which were decided after Jarrett but before the date of the alleged offense in the instant case) serve to strengthen the conclusion that law enforcement officials and the defendant were warned as to the nature of the offense.

The defendant offers the further argument that no clarifying language which we may include in this opinion will serve to assist the Commonwealth's position on the vagueness issue in this case, because this would amount to a retrospective application of this opinion in an unconstitutional manner. Accepting this as valid argument, it is plain that Jarrett and subsequent cases constitute sufficient warning, without any necessary assistance from the instant opinion.

A law is unconstiutionally vague it it is not sufficiently explicit to give clear warning as to proscribed activities. Commonwealth v. A Juvenile, --- Mass. ---, ---, ^c 334 N.E.2d 617 (1975). Connally v. General Constr. Co., 269 U.S. 385, 391, 46 S.Ct. 126, 70 L.Ed. 322 (1926). A law is not vague, however, if it requires a person to conform his conduct to an imprecise but comprehensible normative standard so that men of common intelligence will know its meaning. Broadrick v. Oklahoma, 413 U.S. 601, 608, 93 S.Ct. 2908, 2914, 37 L.Ed.2d 830 (1973). Coates v. Cincinnati, 402 U.S. 611, 614, 91 S.Ct. 1686, 29 L.Ed.2d 214 (1971). Moreover, even when the outer boundaries of a law are imprecise, such imprecision does not permit a facial attack on the entire law by one whose conduct 'falls squarely within the 'hard core' of the (law's) proscriptions,' ibid, particularly if greater specificity in the law is impractical. See Arnett v. Kennedy, 416 U.S. 134, 161, 94 S.Ct. 1633, 40 L.Ed.2d 15 (1974).

The provision against 'disturbers of the peace' proscribes conduct which tends to anny all good citizens and does in fact annoy anyone present not favoring it. Commonwealth v. Jarrett, supra 359 Mass. at 498, 269 N.E.2d 657. Commonwealth v. Oaks, 113 Mass. 8, 9 (1873). This definition applies a two-pronged standard to disruptive conduct. It proscribes activities which, first, most people would find to be unreasonably disruptive, and second, did in fact infringe someone's right to be undisturbed. The first prong is normative and protects potential defendants from prosecutions based on individual sensitivities. The second prong requires that the crime have a victim, and thus subjects potential defendants to criminal prosecution only when their activities have detrimental impact.

A more specific standard is impratical because the conduct proscribed by this law necessarily varies according to its location and timing. For example, hurling objects in an open and deserted field is probably permitted while hurling objects in a populated area may be proscribed. Similarly, abusive language in some circumstances may constitute protected speech when uttered in a public store, Commonwealth v. A Juvenile, supra, --- Mass. at ---, ^d 334 N.E.2d 617, but may be constitutionally proscribed when loudly uttered late at night in a residential neighborhood so that people in the privacy of their homes are unable to avoid the noise. See Cohen v. California, 403 U.S. 15, 21--22, 91 S.Ct. 1780, 29 L.Ed.2d 284 (1971). A disturbing the peace standard which attempted to define more precisely the levels of noise and types of conduct permitted in various places at varying times would be both underinclusive and overbroad. The void for vagueness doctrine does not require this result. Rather, for offenses such as this, it permits the use of a normative standard which informs a potential defendant that his common sense in most cases will define proscribed conduct. See Coates, supra, 402 U.S. at 614, 91 S.Ct. 1686. Activities which fall near the imprecise outer boundaries of the law can be handled through case by case adjudication. See Arnett, supra, 416 U.S. at 161, 94 S.Ct. 1633; Broadrick, supra, 413 U.S. at 618, 93 S.Ct. 2908. Consequently, the Massachusetts ...