|
Opinions of The and the Court of Appeals To be used in
conjunction with the CPS Criminal Procedure Textbook |
|
CPS Commonwealth
Police Service, Inc. and the Law Office of Patrick Michael Rogers |
Commonwealth
v.
Supreme Judicial Court of Massachusetts,
Argued
Decided
Martin R. Rosenthal,
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, s 53. (FN1) 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[371
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, ‑‑‑
[1] [2]
[3] 1. A criminal law is overbroad if it
punishes activities which are constitutionally protected, Thornhill
v.
[4]
2. We turn now to the defendant's
contention of unconstitutional vagueness.
We rejected this premise in the [371 Mass. 734] 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.
[5] [6]
[7] A law is unconstiutionally vague it it is not sufficiently explicit to give clear warning as to
proscribed activities. Commonwealth v. A
Juvenile, ‑‑‑ Mass. ‑‑‑, ‑‑‑,
(FNc) 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).
[8] 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 [371 Mass. 735] 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 ‑‑‑, (FNd) 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 disturbing the peace law which applies a
normative standard and requires individual harm in fact is not
unconstitutionally vague. That standard
was established by the Jarrett case, which was decided several years before the
date of the offense alleged in the instant case, and placed the defendant on
sufficient notice of the nature of the offense.
[9] Many
other decisions of this court gave the defendant [371 Mass. 736] clear warning
that hurling objects might be illegal.
See, e.g., Alegata v. Commonwealth, 353 Mass.
287, 304, 231 N.E.2d 201 (1967). He
cannot avoid conviction for such conduct merely because his violent acts were
accompanied by speech. Commonwealth v.
Richards, ‑‑‑ Mass. ‑‑‑, ‑‑‑,
(FNe) 340 N.E.2d 892 (1976). Further, the very decisions the defendant
cites in support of his argument that the Jarrett holding is no longer
conclusive on the issues of vagueness and overbreadth
provided him with notice that abusive speech does not constitute protected
expression in all cases. Cohen v.
California, 403 U.S. 15, 21, 91 S.Ct. 1780, 29
L.Ed.2d 284 (1971). See Commonwealth v.
A Juvenile, supra ‑‑‑ Mass. at ‑‑‑ ‑ ‑‑‑,
(FNf) 334 N.E.2d 617.
In Cohen, particularly, the Supreme Court emphasized that speech, which
in cases will be constitutionally protected, can be forbidden if it is likely
to provoke a violent reaction by the hearer, Cohen, supra 403 U.S. at 20, 91 S.Ct. 1780, or if it invades a 'substantial claim to a
recognizable privacy interest,' id. at 21, 91 S.Ct.
at 1786. The Court offers as an example
of such a privacy interest, the interest in 'being free from unwanted
expression in the confines of one's own home.'
Id. at 22, 91 S.Ct. at 1786. Certainly loud and abusive speech, whatever
the content, at 11:45 P.M. near dwelling places may invade the privacy rights
of persons asleep in their homes. In
addition, such speech may provoke a violent reaction from listeners rudely
awakened. Thus, decisions of this court
and the United States Supreme Court gave the defendant notice that the conduct
and speech alleged may be prohibited constitutionally.
3. The crime of disturbing the peace as so
construed is neither vague nor overbroad.
It follows that the reported question is answered in the negative, and
the case is remanded for trial.
So
ordered.
FN1. The statute, which describes a number of
separate crimes, and which has been construed many times by this court,
provides punishment for 'disturbers of the peace.' G.L. c. 272, s 53,
as amended through St. 1973, c. 1073, s 20.
FNa. Mass.Adv.Sh. (1975) 2766.
FNb. Mass.Adv.Sh. (1975) 2766.
FN2.
We cannot decide on the record before us whether the law may be unconstituitonally applied in this case.
FNc. Mass.Adv.Sh. (1975) 2766, 2775.
FNd. Mass.Adv.Sh. (1975) at 2794.
FNe. Mass.Adv.Sh. (1976) 47, 55.
FNf. Mass.Adv.Sh. (1975) at 2779‑‑2881.