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Opinions of The and the Court of Appeals To be used in
conjunction with the CPS Criminal Procedure Textbook |
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CPS Commonwealth
Police Service, Inc. and the Law Office of Patrick Michael Rogers |
Commonwealth
v. Gomes,
Present: Grasso, McHugh, & Mills, JJ.
The cases were tried before Thomas J. May, J.
Charles Allen Hope (John H. Cunha, Jr., with him) for
John P. Gomes & others.
Rami M. Vanegas, Assistant District Attorney, for the Commonwealth.
GRASSO, J.
May an individual forcibly resist a warrantless
police entry into his residence that is later determined to be unlawful, or is
the right forcibly to resist police limited by the rule of Commonwealth v.
Moreira, 388 Mass. 596, 601 (1983), to resistance against excessive or
unnecessary force upon his person? We hold that absent the use of excessive or
unnecessary force by police upon his person, an individual may not forcibly resist
even an unlawful entry into his residence by one who he knows or has good
reason to believe is a police officer engaged in the performance of his duties.[2]
1. Background. A melee erupted in the course of
a police investigation into a possible breaking and entering into a residence
at
On appeal, the codefendants contend that trial counsel were ineffective in
failing to (1) move to suppress everything that followed an allegedly unlawful
entry into a residence at 6 Corwin Street, and (2) request that the jury be
instructed on an asserted right to use force to resist unlawful entry into the
residence. Closely related appellate contentions are that the trial judge erred
in (1) denying motions to dismiss[5]; and (2) refusing to instruct the
jury on the Fourth Amendment requirements for police to enter the home or demand
that an occupant produce identification. Finally, the defendants assert that
the judge's exclusion of various excited utterances created a substantial risk
of a miscarriage of justice. We affirm.
2. The entry and the ensuing melee. The
contextual facts relevant to the issues on appeal are these. Early on New
Year's morning, 1998, Tiffany Talbert awakened to a loud banging on the side of
her home at
Talbert called the police.
At Talbert's request, the officers searched the perimeter and the yard at the
rear of Talbert's house. While at the side of the house opposite the basement
door, they heard hushed voices and saw a shadowy motion followed by the sound
of a door closing. The lighting was limited. The officers walked in the
direction of the voices and came to the door to
Officer Coyne, who was in uniform, knocked on
the door and identified himself as a police officer. Eventually, Arnaldo opened
the door about a foot. From this vantage the police only could see the width of
Arnaldo's face. He appeared intoxicated, with glassy eyes and an odor of
alcohol on his breath. Coyne asked Arnaldo to open the door further, but
Arnaldo refused to comply. Likewise, he refused to give his name or produce
identification. Coyne placed one hand on the door and his foot in the door,
forcibly keeping the door open.
Officer Coyne again asked Arnaldo for identification. Arnaldo told the police
to go to the front of the house, ring the second floor doorbell, and talk to
his mother. Officer Tse proceeded in that direction, while Coyne remained at
the door with Arnaldo.
Arnaldo asked Officer Coyne to remove his foot from the entrance and then
attempted to push the door closed. Coyne prevented Arnaldo from closing the
door, using his foot and applying pressure with his hands, and directing that
Arnaldo stop. During a struggle that ensued as Arnaldo sought to close the
door, Arnaldo shoved Coyne in the chest. Coyne grabbed Arnaldo by his shirt and
attempted to place him under arrest. Arnaldo resisted and Coyne yelled for Tse
to assist him.[6]
The struggle to arrest Arnaldo and forcibly
remove him from the house spilled out into the backyard where the officers
attempted to handcuff Arnaldo. At some point, a group that included Aguinaldo,
Gomes, and Taylor came running from inside the house and joined the fracas. One
of the assailants picked up a two by four piece of wood. Officer Tse responded
with pepper spray aimed in the direction of Taylor, Gomes, and Arnaldo. The
spray hung in the air, exposing everyone in the area, including the police, to
its effects. With the arrival of backup, the police brought an end to the
melee.
3. The failure of counsel to file a motion to suppress evidence. The codefendants
contend that trial counsel were ineffective in failing to file a motion to
suppress. They maintain that Officer Coyne's placing his foot in the door and
forcibly preventing Arnaldo from closing it constituted an unlawful entry that
requires suppression of everything that transpired thereafter as the
"fruit of the poisonous tree." Had the police allowed Arnaldo to
close the door as he had a right to do, the argument goes, no evidence would
have been gathered, and the subsequent crimes would not have been committed.
See Wong Sun v.
We discuss a preliminary difficulty with this
contention. Not every defendant could establish the requisite expectation of
privacy in
Beyond the absence of a cognizable expectation
of privacy in Taylor and Gomes,[7] another fundamental problem exists
with the defendants' contention. Counsel were not ineffective in failing to
request what the law would not countenance.
Neither Fourth Amendment nor art. 14 exclusionary rules extend to suppression
of evidence of crimes that are in reaction to an illegal search or seizure.
In so holding, we follow numerous other
jurisdictions that prohibit a defendant from invoking the exclusionary rule to
suppress evidence of his own unlawful conduct in response to police actions in
violation of constitutional protections against unlawful search and seizure.
See, e.g., State v. Miller, 282 N.C. 633, 641 (1973) ("[A]pplication of
the exclusionary rule in [the] fashion [sought by the defendants] would in
effect give the victims of illegal searches a license to assault and murder the
officers involved"); People v. Abrams, 48 Ill. 2d 446, 455-456 (1971)
(such a policy in fundamental opposition to civilized rule of law); Akron vs.
Recklaw, Ohio Ct. App. No. 14671 (Jan. 30, 1991) (criminal acts, including
assault and resisting arrest, not excused because of earlier police transgressions).
4. The denial of the motion to dismiss. The defendants also contend that the
trial judge erred in denying their motion to dismiss. The judge did not err
because this is not the very rare case in which egregious police misconduct
might warrant dismissal.
The police clearly possessed a basis for inquiring at
Moreover, the initial actions of the police
were measured and appropriate to a rapidly unfolding situation in the immediate
aftermath of a reported burglary at
As here, however, mere inquiry can quickly devolve to a circumstance requiring
greater constitutional justification to prolong the inquiry or take more
intrusive steps.
However, the police did not burst through a
closed door unannounced in the dead of night. Although unlawful, Officer
Coyne's actions were neither conscience-shocking nor egregious.
We leave to another day the determination whether the circumstances under which
an entry occurs might be so provocative and outrageous as to preclude
imposition of a criminal penalty for resistance. See
5. Counsel's failure to request a jury
instruction on the right forcibly to prevent entry. The defendants next argue
that counsel were ineffective in failing to request a jury instruction on the
right to use force to prevent unlawful police entry into the home. At trial,
Arnaldo's defense centered on the unlawfulness of the police entry, the
reasonableness of his actions in attempting to close the door, and the
excessive force used upon him (including the police striking him in the head
with a flashlight and macing him) that would entitle him to use force in
self-defense.[9] If Arnaldo were entitled forcibly to resist the entry,
then, looking at the evidence in the light most favorable to him, the jury
should have been allowed to consider, under proper instruction, whether the
force he employed to close the door against Officer Coyne's foot and pressuring
hands was a reasonable response to the unwarranted intrusion. Moreover, if
Arnaldo were entitled to use force to repel the unlawful police entry, then he
need not have waited until the police used excessive or unnecessary force upon
his person in order to defend himself from the police use of force upon him as
he sought to bar entry.
We conclude that counsel were not ineffective because under the circumstances,
there was no right in Arnaldo (or any of the defendants) to use force to resist
even an unlawful entry by the police.[11] Rather, the right to resist
forcibly is limited to those instances where the police use excessive or
unnecessary force upon the person.
An unlawful entry into a dwelling by police is
no small thing. "The right of police officers to enter into a home, for
whatever purpose, represents a serious governmental intrusion into one's
privacy." Commonwealth v. Forde, 367
The Supreme Judicial Court adopted this
position in Commonwealth v. Moreira, 388 Mass. at 598-599, and rejected, prospectively,
the common-law rule of Commonwealth v. Crotty, 10 Allen 403, 405 (1865), that a
person has the right to resist forcibly an unlawful arrest. Recognizing the
trend toward judicial resolution of disputes and the expanding legal
protections and rights available to those interacting with police, the court
determined self-help to be "anachronistic" and "antisocial in an
urbanized society." Commonwealth v. Moreira, 388
The Moreira rationale is equally compelling in
the context of resistance to possibly unlawful entry by police in the
performance of their duties.[13] As with the lawfulness of an arrest,
the lawfulness of police entry into a residence often presents close and
peculiarly fact-dependent questions as to which lawyers and even judges may
disagree. Id. See Commonwealth v. Forde, 367 Mass. at 805 (distinction between
entry to search and entry to arrest is slight); Commonwealth v. Pietrass, 392
Mass. at 897 n.8 (for purposes of Fourth Amendment, no difference whether
search of home is for a person or a thing). Such questions, which are only
resolved later with the benefit of dispassionate reflection, are particularly
ill-suited to the split-second judgments required of police in their
interactions with the citizenry. "Such a close question is more properly
decided by a detached magistrate rather than by the participants in what may
well be a highly volatile imbroglio." Commonwealth v. Moreira, 388 Mass.
at 600. If a police officer makes an entry into a dwelling, with or without a
warrant, that is ultimately determined to be unlawful, the remedy is to be
found in the courts. Ibid.
In requiring a person to submit peacefully to police and pursue his remedies
through the orderly judicial process, we are not unmindful that the available
remedies, such as the suppression of evidence, or civil actions against the
offending officers for trespass or violation of civil rights, see 42
U.S.C. § 1983 (2000), might sometimes be deemed
inadequate. However, the rule the defendants would have us espouse, that an
individual may forcibly resist an entry by police that is later determined to
be unlawful, would encourage violence and erode the very security that our
Federal and State Constitutions are designed to protect. Indeed, resistance
would frequently result in far graver consequences for both the officer and the
occupant than the unlawful intrusion itself. As Judge Learned Hand put it:
"The idea that you may resist peaceful arrest . . . because you are in
debate about whether it is lawful or not, instead of going to the authorities
which can determine, . . . [is] not a blow for liberty but, on the contrary, a
blow for attempted anarchy." 35 A.L.I. Proc. 254 (1958).
Accordingly, we agree with those jurisdictions
that limit the right to resist police forcibly to situations where force is
used against the person rather than against property or to effect entry. See
United States v. Ferrone, 438 F.2d 381, 390 (3d Cir.), cert. denied, 402 U.S.
1008 (1971) (no right forcibly to resist execution of search warrant even if
unlawful). See also State v. Hatton, 116 Ariz. 142, 147-148 (1977); State v.
Wiegmann, 350 Md. 585, 602-604 (1998) (citing cases in fourteen States and
statutes in twenty-seven other States abolishing the common-law right to
resist). Compare United States v. Prescott, 581 F.2d 1343, 1351 (9th Cir. 1978)
(passive refusal to consent to warrantless police entry is privileged conduct).
But see Casselman v. State, 472 N.E. 2d 1310, 1316-1317 (Ind. Ct. App. 1985)
(upholding individual's right to resist unlawful police entry into home).
6. The judge's denial of request for
instruction on Fourth Amendment requirements. The trial judge did not err in
refusing to instruct the jury on the Fourth Amendment requirements for police
to enter into a dwelling and to demand that an occupant produce identification.
Such an instruction was irrelevant to the cases against Taylor, Gomes, and
Aguinaldo, whose sole interactions with police occurred in the yard.
7. The excited utterances. Aguinaldo and Taylor also assert that the trial
judge improperly precluded Ardilla Fernandes, Aguinalda Fernandes, and Nancy
Ruggerio from repeating what Aguinaldo and Taylor told them about having been
sprayed with mace. They maintain that such statements were admissible as
excited utterances.
There was no dispute that the police used mace
to subdue the combatants. Numerous witnesses, both police and civilian,
testified that Tse used pepper spray which hung in the air and affected both
the civilians and police in the area. Aguinalda and Ardilla Fernandes, Suzanne
and Nancy Ruggiero, Arnaldo, Gomes, and Taylor also testified to the spray's
effects upon them individually, including numb lips and burning eyes. There was
abundant testimony that squarely put in issue whether each defendant's conduct
was a reasonable response to excessive or unnecessary force by police.
Accordingly, the exclusion of further excited utterance testimony, even if
error, did not give rise to a substantial risk of a miscarriage of justice.
Judgments affirmed.
(McHUGH, J., concurring) I agree that the
convictions should be affirmed. I also agree with the majority's reasoning in
the cases involving Gomes, Taylor, and Aguinaldo Fernandes. In the case
involving Arnaldo Fernandes (Arnaldo), however, I do not believe that
affirmance of the conviction requires the discussion set forth in part 5 of the
majority's opinion, nor do I believe that affirmance requires us to reach out
for the majority's broad and sweeping declaration that "an individual may
not forcibly resist even an unlawful entry into his residence by one who he
knows or has good reason to believe is a police officer engaged in the
performance of his duties."
As the majority observes, Arnaldo argues here that he received ineffective
assistance of counsel because his attorney failed to request an instruction to
the effect that "an official's attempt to enter a home illegally entitles
the defendant to use reasonable force to resist the entry." He argues that
"[t]he jury should have been so
[instructed] in order to properly assess whether the officers used excessive
force in attempting to arrest [Arnaldo], his brother, and their guests, and in
determining whether [Arnaldo's] attempt to close the door, per the officers'
testimony, constituted an assault and battery."
Neither rationale, however, entitled Arnaldo to
the instruction he claims his attorney failed to seek. Insofar as forceful
resistance of an arrest is concerned, Commonwealth v.
Moreira, 388 Mass. 596 (1983), squarely held
that individuals are not entitled to use force to resist even an unlawful
arrest. Insofar as the door closing was concerned, Arnaldo was convicted of
assaulting two officers, Coyne and Tse, only one of whom, Coyne, was at the
door when Arnaldo was attempting to close it. Arnaldo also had been charged
with assault and battery by means of a dangerous weapon, i.e., the door, on
Coyne. At the close of the Commonwealth's evidence, however, the judge entered
a required finding of not guilty in Arnaldo's favor on the dangerous weapon
charge because there had been no evidence that Arnaldo "struck" Coyne
with the door. Accordingly, Arnaldo did not need the jury's assessment of
whether the force he applied to the door amounted to an assault and battery;
the judge already had ruled that it did not.1[15]
Beyond that, it is virtually inconceivable that
failure to give the requested instruction, under whatever rationale, materially
affected the outcome of Arnaldo's trial. The absence of a material impact,
without more, means that Arnaldo cannot prevail on his claim of ineffective
assistance, for we have said many times that
"[t]o prevail on a claim of ineffective
assistance of counsel, a defendant must establish (1) that his representative's
performance reflected 'serious incompetency, inefficiency, or inattention . . .
falling measurably below that which might be expected from an ordinary,
fallible lawyer,' Commonwealth v. Saferian, 366 Mass. 89, 96-97 (1974); and (2)
that these shortcomings deprived him of 'an otherwise available, substantial
ground of defence' or otherwise materially affected the outcome of his trial.
Commonwealth v. Scullin,
Only two percipient witnesses, Officer Coyne
and Arnaldo, testified about the events at the door. If the jury believed
Arnaldo, then no assault and battery of any kind occurred.2[16] If Coyne
were believed, whatever force Arnaldo applied to the door was dwarfed by the
shove, punches, and kicks Arnaldo administered as Officer Tse headed for the
front of the house to check on Arnaldo's identity.3[17] Even if
reasonable force may be applied to resist a police officer's illegal intrusion,
no reasonable person who accepted Coyne's view of events could conclude that
Arnaldo's application of force was reasonable. Consequently, under either view
of the evidence, failure to request a reasonable force instruction played no
material role in the trial's outcome.
That being the case, I see no reason to use
this case as a vehicle for announcing a broad new rule that one's fellow
citizens assembled and sworn as jurors have no right -- under any circumstances
-- to assess the reasonableness of a forceful but nonassaultive effort to
prevent an unbidden policeman's lawless nighttime entry into a dwelling.4[18]
Such a rule would strip the jury of any role in deciding whether it was
reasonable under any circumstances, for example, to keep the door locked in the
face of a policeman's order to unlock it, to lean against a closed door to
prevent its forceful opening, to close the door against an official's
outstretched hand, or to stand passively in a doorway to block an illegal entry.
Sanctity of the home is, as the majority
recognizes, ante at , a core principle in our constitutional order. See Miller
v. United States, 357 U.S. 301, 307 (1958); United States v. United States
Dist. Ct., 407 U.S. 297, 313 (1972); Commonwealth v. Panetti, 406 Mass. 230,
234 n.5 (1989); Commonwealth v. Marquez, 434 Mass. 370, 374-375 (2001). That
principle produced the rule that the official who enters a dwelling with
neither warrant nor justification for warrantless entry is a trespasser, see
Commonwealth v. Wright, 158
Power conceded, though, the real question is not whether the rule should be
restrained but to what degree and under what circumstances. The answer clearly
implicates important aspects of the relationship between citizen and State.
Providing such answers only when a case clearly requires them is the essence of
judicial restraint. See Lockhart v. Attorney Gen., 390 Mass. 780, 784 (1984);
McMaster, petitioner, 12 Mass. App. Ct. 972, 973
(1981). See generally, e.g., Commonwealth v.
Bartlett, 374 Mass. 744, 749 (1978); Ruggieri v. Somerville, 10 Mass. App. Ct.
43, 44 (1980). Cf. Bickel, The Least Dangerous Branch: The Supreme Court at the
Bar of Politics 114-115 (1962). I would apply that restraint here, decide the
case on narrower grounds that are entirely adequate for its disposition, and
save consideration of the broader principle the majority has embraced for the
case in which the broader principle, as it now exists or as it is reformulated,
must necessarily determine the outcome.
FOOTNOTES:
[1] Four against Arnaldo L. Fernandes, two against
Aguinaldo L. Fernandes, three against David Taylor, and one against John P.
Gomes.
[2] Our holding addresses forcible resistance to
police, not passive resistance to entry. With due respect to the concurrence,
our holding is neither broad nor sweeping and does not implicate nonforcible
resistance such as locking an entry door prior to police entry or standing
passively in the doorway, if indeed, that is what is meant by a "forceful
but nonassaultive effort" to prevent police entry.
[3] The charges against Arnaldo Fernandes included
resisting arrest and being a disorderly person. The Commonwealth also brought
charges against Manuel Lopes, Manuel Nova, and David Torres. At trial, the
judge allowed motions for required findings of not guilty as to all charges
against Torres and Lopes. The jury found Nova not guilty on all counts and
acquitted the four codefendants of some of the other charges stemming from the
brawl.
[4] The trial judge allowed a motion for required
finding of not guilty upon a complaint against Arnaldo alleging assault and
battery by means of a dangerous weapon (a door) because there was no evidence
that Arnaldo struck a police officer with the door.
[5] At the close of the evidence, Taylor moved orally
to dismiss the charges against him; the other defendants joined in the motion.
The judge initially treated the motion as one for required findings of not
guilty, but ultimately treated it as a motion to dismiss and denied it.
[6] Not material to our decision is the divergence in
Arnaldo's trial testimony that he opened the door and granted permission to
police to search the yard; that he told police he lived there; and that Coyne
grabbed him as he reached for his wallet while standing in the hall. "A
defendant is entitled to have the jury at his trial instructed on the law
relating to self-defense if the evidence, viewed in its light most favorable to
him, is sufficient to raise the issue." Commonwealth v. Harrington, 379
[7] From Arnaldo's trial testimony that he resided at
6 Corwin Street, we infer that he could easily have provided the necessary
affidavit in support of a motion to suppress to establish his expectation of
privacy in the premises. See Mass.R.Crim.P. 13, 378
[8] Nor did the facts known to police as they met
Arnaldo at the door create a reasonable apprehension of danger to the police or
others from Arnaldo or others inside. See Commonwealth v. Morrison, 429 Mass.
at 514-515, quoting from Commonwealth v. Hurd, 29 Mass. App. Ct. 929, 930
(1990) ("the need to protect or preserve life or avoid serious injury is
justification for what would be otherwise illegal absent an exigency or
emergency"); Commonwealth v. Ortiz, 435 Mass. 569, 572-573 (2002)
(warrantless entry of store). Compare Commonwealth v. Allen,
[9] From the
Commonwealth's and defense's cases in combination, the evidence and fair
inferences were that Officer Coyne kept his foot inside the door and pressed
against the door
with his hands as Arnaldo sought to close it; that Coyne reached in, grabbed
Arnaldo by the shirt, and threw him against the wall; and that Arnaldo resisted
by shoving and kicking. The struggle spilled out into the yard, where Arnaldo
contended the police hit him with a flashlight, threw him against the side of
the house, and maced him.
[10] We may not avoid deciding whether Arnaldo was
entitled to resist forcibly the unlawful police entry by parsing the events at
issue into those relating to the complaint for assault and battery by means of
a dangerous weapon, a door, and those that comprised the other blows to Officer
Coyne and Officer Tse as part of Arnaldo's continuing resistance to entry and
arrest. The jury were not asked to differentiate in their verdicts between
those blows and kicks allegedly delivered by Arnaldo inside the dwelling and
those in the yard.
[11] Because the right to use force against police
does not arise in order to protect property against unlawful entry, but only to
protect the person against excessive or unnecessary force by police, it is not
circumscribed by expectation of privacy considerations. Here, however, as
Arnaldo alone sought to bar police entry, only he was in a position to seek
such an instruction.
[12] Similar concerns against violent resistance to
police entry inform the common-law knock and announce rule. See Commonwealth v.
Cundriff, 382 Mass. at 146; Commonwealth v. Sepulveda, 406 Mass. 180, 182
(1989) (rule grounded in desirability of decreasing potential for violence
initiated by residents in response to sudden, unexpected invasion of premises,
provoking further retaliatory violence by police).
[13] We expressly reject dictum in Commonwealth v.
Kiser,
[14] The defendants make no challenge to the judge's
correct instruction on self-defense that the defendants had the right to use force
if the force being used to arrest was unnecessary or excessive.
[15] 1 That being the case, Arnaldo could have, but
did not, request an instruction removing the force he applied to the door as a
possible basis for an assault and battery conviction.
[16] 2 Arnaldo testified that he opened the door
when the police asked him to, responded to their inquiries by telling them he
lived there, but declined their requests for proof that he did so. He then
tried to close the door, but Officer Coyne put his foot against it to prevent
him from doing so. Arnaldo then asked Coyne to "kindly remove his foot
from [his] property," suggested that Coyne and Officer Tse go around to
the front of the house to ask his mother who he was, and reached for his wallet.
As he reached for his wallet, Arnaldo testified, Coyne reached in through the
then open door, grabbed him by the shirt and, with the assistance of Tse,
pulled him out into the yard, threw him against the side of the house, hit him
with a flashlight, and sprayed him with mace. He then was handcuffed, beaten,
and dragged through some bushes before winding up in a police cruiser.
[17] 3 Officer Coyne
testified that, after Arnaldo declined to provide his name, and while Coyne had
his foot in the door, Coyne told Officer Tse to go to the front of the house to
inquire of the mother in accordance with Arnaldo's request. After Tse left,
Arnaldo tried to push the door closed. Coyne told him to stop. At that point,
Arnaldo shoved Coyne in the chest. That prompted Coyne to attempt to place
Arnaldo under arrest by grabbing his shirt, entering the vestibule of the
apartment as he did so. In response, Arnaldo
"began hitting Coyne, punching him and
kicking him multiple times. Coyne pushed [Arnaldo] against the vestibule wall .
. . . [but] could not control [him]. At some point Coyne and [Arnaldo] ended up
on the floor; Coyne did not know how they got there. Tse was present again, and
with Tse's assistance, Coyne . . . got Arnaldo out of the vestibule into the
area between the houses. Coyne . . . was able to get one handcuff on [Arnaldo]
but could not get to the other handcuff
. . . . Coyne eventually assisted in taking
[Arnaldo] to a police car, but recalls that [Arnaldo] was still fighting when
he was handcuffed. Coyne also testified that [Arnaldo] was dragging his feet
and would not walk under his own power; but kept pulling back."
Coyne's testimony was, of necessity, recreated by stipulation of the
Commonwealth and Arnaldo's attorney after some unexplained mishap resulted in
its omission from the official recording of the trial.
[18] 4 Although the issue that Arnaldo raises in
this case is simply whether use of reasonable force to resist a police
officer's unlawful entry into a dwelling is a defense to a charge of assault
and battery, the majority's rule goes well beyond that issue and, on its face,
would prohibit use of force to resist an unlawful entry whether or not that
force produced an assault and battery.
[19] 5 I cannot agree that the pertinent language in
Commonwealth v. Wright is dictum. See ante at note 13. The defendants in Wright
had been charged with assault and battery. The victim was a police officer and
"deputy fish commissioner" whom the defendants forcibly repelled when
he boarded their sloop to arrest them for trading in short lobsters. The court
held that the officer had no right to arrest the defendants without a warrant
and then, in the passage of pertinence, stated, "If [the officer] had no
right to arrest the defendants without a warrant, and he boarded the sloop for
that purpose, he was a trespasser, and the question for the jury would be
whether the defendants used excessive force in defending themselves and their
property." 158