Com. v. Abramms

• Decision Date: 23 June 2006
• Docket Number: No. 04-P-1211.,04-P-1211.
• Citation: 849 N.E.2d 867,66 Mass. App. Ct. 576
• Parties: COMMONWEALTH v. Bob ABRAMMS.
• Court: Appeals Court of Massachusetts

849 N.E.2d 867

66 Mass. App. Ct. 576

COMMONWEALTH v. Bob ABRAMMS.

No. 04-P-1211.

Appeals Court of Massachusetts, Hampshire.

Argued August 5, 2005.

Decided June 23, 2006.

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Harry L. Miles, Northampton, for the defendant.

Steven Greenbaum, Assistant District Attorney, for the Commonwealth.

Present: GELINAS, BROWN, & BERRY, JJ.

GELINAS, J.

After a jury trial in the Northampton Division of the District Court Department, the defendant was convicted under G.L. c. 269, § 2, of failing to obey the order of a police officer to disperse from an "unlawful assembly." On appeal, the defendant argues that the phrase "riotously or tumultuously assembled," set forth in the statute, should be read conjunctively with the term "unlawful assembly" to define the offense, and that when the judge omitted this phrase from his instructions, the jury were precluded from considering an essential element of the offense. In addition, the defendant contends that the statute is unconstitutional on its face, claiming that it is vague and overbroad. He also argues that the judge erred in failing to give an instruction that, under the First Amendment to the United States Constitution and arts. 16 and 19 of the Massachusetts Declaration of Rights, the people have the right to assemble to engage in constitutionally protected speech and petition the government.

The trial transcript has not been made part of the record on appeal.¹ Without a complete record we will not reach either the question whether the statute was unconstitutional as applied, or claimed errors in the judge's instructions to the jury. We consider only the defendant's claim that the statute is unconstitutional on its face and the question whether the phrase "riotously or tumultuously assembled" should be read conjunctively to describe the offense of unlawful assembly.

Although, in the absence of a transcript, we have no information as to what actually transpired, we discern from other materials included in the appellate record that what occurred, generally, was as follows. The defendant, along with other persons, participated in an assembly in Northampton to protest the involvement of the United States in the Iraq war. At least some persons involved in the protest may have been on a sidewalk. The defendant was subsequently arrested for refusing to disperse upon the command of a police officer.²

Defendant's arguments on interpretation of statute. The defendant argues that on its face the statute is unconstitutionally overbroad and vague unless the offense of unlawful assembly is qualified by the additional statutory terms "riotous or tumultuous."

The offense of refusing or failing to obey an order to disperse from an unlawful assembly is set forth in two sections of G.L. c. 269. The conduct at which the statute is directed is set out in G.L. c. 269, § 1, as amended through St.1991, c. 412 § 98,³ the relevant portion of which reads as follows:

"If five or more persons, being armed with clubs or other dangerous weapons, or if ten or more persons, whether armed or not, are unlawfully, riotously or tumultuously assembled in a city or town, . . . any member of the city, town, or state police . . . shall go among the persons so assembled . . . and . . . command all persons so assembled immediately and peaceably to disperse. . . ."

In the event those ordered to disperse fail to do so, the following portion of G.L. c. 269, § 2, as appearing in St.1965, c. 647, § 1A, sets forth the authority to arrest and punish:

"Whoever . . . if required by such . . . officer to depart from the place, refuses or neglects so to do, shall be considered one of the rioters or persons unlawfully assembled, and shall be [subject to criminal prosecution and punishment]."

We think the defendant's argument that "unlawful assembly" must be qualified by "riotous or tumultuous" is flawed in two respects. First, his argument is based on decisional law interpreting a related, but separate offense, set out by G.L. c. 269, § 8, which requires a municipality to pay damages caused by a riotous or tumultuous assembly that it had an obligation to control. See Yalenezian v. Boston, 238 Mass. 538, 542-543, 131 N.E. 220 (1921); Abraham v. Woburn, 383 Mass. 724, 728, 421 N.E.2d 1206 (1981). The Abraham court, supra at 728, 421 N.E.2d 1206, quoting from Yalenezian v. Boston, supra, concluded in interpreting G.L. c. 269, § 8, that the phrase "riotously or tumultuously assembled" should be read "conjunctively to describe the offence of an unlawful assembly which has proceeded to execute an unlawful purpose in a way that has resulted in the destruction of property or [in] injury thereto, and in a manner to give firm and courageous persons in the neighborhood of such assembly reasonable grounds to apprehend a breach of peace in consequence of it." Under the statute at issue in Abraham and Yalenezian, however, damages can only be obtained in the event the property damage is caused by the actions of "persons who are riotously or tumultuously assembled," i.e., who are actually engaged in rioting. The holding, thus, is not necessarily determinative of the offense in question here, where property damage is not involved and the defendant was not charged with rioting, but rather with failing to obey an order to disperse from an "unlawful assembly."

Second, the defendant improperly assumes that only the crime of riot is encompassed within G.L. c. 269, §§ 1, 2. Although riot is among the offenses included within G.L. c. 269, §§ 1, 2, the statute refers to "rioters or persons unlawfully assembled" (emphasis supplied). G.L. c. 269, § 2. The use of the disjunctive "or" in §§ 1 and 2 supports the conclusion that unlawful assembly is a separate offense from that of rioting. See Commonwealth v. Davie, 46 Mass.App.Ct. 25, 27, 703 N.E.2d 236 (1998), quoting from Eastern Mass. St. Ry. v. Massachusetts Bay Transp. Authy., 350 Mass. 340, 343, 214 N.E.2d 889 (1966) ("The word `or' is given a disjunctive meaning unless the context and the main purpose of all the words demand otherwise"). Moreover, as will be discussed more fully below, unlawful assembly historically has been an offense separate from the offense of riot.

Constitutional claim. At bottom, the defendant raises a facial challenge to the statute on grounds of overbreadth and vagueness. We will first set out relevant constitutional principles, then examine the meaning of the statutory provision in question, and, finally, consider the constitutionality of the provision in respect to this claim.

a. Relevant constitutional principles. A law is overbroad "if it uses means which sweep unnecessarily broadly and thus invades the area of protected freedoms." Smith, Criminal Practice & Procedure § 6, at 10 (2d ed.1983). See Broadrick v. Oklahoma, 413 U.S. 601, 613, 93 S.Ct. 2908, 37 L.Ed.2d 830 (1973); Commonwealth v. Orlando, 371 Mass. 732, 733, 359 N.E.2d 310 (1977). We will consider the facial validity of an offense even though the defendant's conduct⁴ "might be of the class properly the subject of State regulation, for `[i]t matters not that the [form of expression] used [by the defendant] might have been constitutionally prohibited under a narrowly and precisely drawn statute.'" Commonwealth v. A Juvenile, 368 Mass. 580, 584-585, 334 N.E.2d 617 (1975), quoting from Gooding v. Wilson, 405 U.S. 518, 520, 92 S.Ct. 1103, 31 L.Ed.2d 408 (1972). "This exception [to the traditional rule of standing] is based on an overriding interest in preventing any `chill' on the exercise of First Amendment rights." Commonwealth v. Bohmer, 374 Mass. 368, 373, 372 N.E.2d 1381 (1978).

We note, however, that because facial challenges greatly increase the number of persons who have standing to bring a claim, the United States Supreme Court has admonished that the overbreadth doctrine be employed sparingly. Broadrick v. Oklahoma, 413 U.S. at 610, 93 S.Ct. 2908. See Commonwealth v. Provost, 418 Mass. 416, 422-423, 636 N.E.2d 1312 (1994). If a statute's deterrent effect on protected expression is not "both real and substantial" and if the statute is "readily subject to a narrowing construction," the doctrine of overbreadth may not be employed. Young v. American Mini Theatres, Inc., 427 U.S. 50, 60, 96 S.Ct. 2440, 49 L.Ed.2d 310 (1976). See Broadrick v. Oklahoma, 413 U.S. at 613, 93 S.Ct. 2908.

The vagueness doctrine, in its primary sense, relates to the requirement, grounded in concepts of due process, that "[a] law is unconstitutionally vague if it is not sufficiently explicit to give clear warning as to proscribed activities." Commonwealth v. Orlando, 371 Mass. at 734, 359 N.E.2d 310. To satisfy constitutional requirements, laws must be susceptible to ready understanding by "men of common intelligence." Commonwealth v. Gallant, 373 Mass. 577, 580, 369 N.E.2d 707 (1977), quoting from Connally v. General Constr. Co., 269 U.S. 385, 391, 46 S.Ct. 126, 70 L.Ed. 322 (1926). In applying this standard, courts are ever mindful of "the practical difficulties in drawing criminal statutes both general enough to take into account a variety of human conduct and [yet] sufficiently specific to provide fair warning that certain kinds of conduct are prohibited." Commonwealth v. Gallant, supra, quoting from Colten v. Kentucky, 407 U.S. 104, 110, 92 S.Ct. 1953, 32 L.Ed.2d 584 (1972). Ultimately, however, "[n]o one may be required at peril of life, liberty or property to speculate as to the meaning of penal statutes." Lanzetta v. New Jersey, 306 U.S. 451, 453, 59 S.Ct. 618, 83 L.Ed. 888 (1939). See Chicago v. Morales, 527 U.S. 41, 57-58, 119 S.Ct. 1849, 144 L.Ed.2d 67 (1999) (what is illegal must be clear or due process is violated; statute must distinguish between innocent conduct and conduct threatening harm).

In addition to fixing minimum standards for providing notice of the conduct proscribed by particular laws, the vagueness doctrine also prohibits such...