In the District Court Complaint Language Manual (COMLAW4), under
the Common Law Offenses, is listed: "Police Officer, interfere
with: On [date of offense] did intimidate, hinder or interrupt a
police officer in the lawful performance of his or her duty, in
violation of the Common Law (penalty from G.L. c. 279, § 5:
'according to the nature of the crime, as conforms with the common
usage and practice in the commonwealth')."1 This alleged
common law crime lacks the appropriate legal pedigree to be an
authentic crime in the Commonwealth of Massachusetts and this
article presents one way to challenge its authenticity, and
therefore, the court's jurisdiction.
While the number of interference with a police officer charges
filed in the Commonwealth of Massachusetts has dropped between 2006
and 2010,2 police officers are encouraged to embrace
this common law crime to address a variety of difficult
situations.
Most police departments do not utilize this significant common
law offense. This is probably due to the fact that most police
trainings do not incorporate powers of arrest components that
contain common law offenses. However, some police departments have
historically utilized interfering with a police officer in a
variety of situations. It could be used in any situation where a
person intentionally hinders a police officer in performing a
police related function. It is an excellent legal device that can
be used to satisfy a number of problems experienced by the street
officer on any given day or night.3
The reason why this alleged common law crime can apply to a wide
variety of police related "problems" is the extensiveness of the
language in contrast to other codified laws addressing similar
situations with much more particularized language. For instance,
the statutes criminalizing obstruction by disguise, willful
interference with a fire fighter, or witness intimidation have
limiting elements that prevent vagueness and arbitrary
enforcement.4
Specifically, G. L. c. 268, § 13B "criminalizes a number of
actions that interfere with the criminal justice
system."5 While this statute applies to a broader class
of people (witnesses, jurors, judicial officers, probation
officers, and others) than the common law of interference with a
police officer, it has a narrower focus because it criminalizes the
intent to impede a criminal investigation.
Conversely, the common law is more expansive because the absence
of an element of intent places the focus subjectively on the
result of hindering the police officer. The common law
also covers all lawful performance of police related functions,
which includes duties beyond the scope of criminal investigation,
such as the community caretaking function.6
The starting point to challenge the common law of interference
with a police officer is the jurisdiction of the court. To look at
this, it is helpful to go back to the origins of the common law,
which derives from pre-revolution, English law.
Our ancestors, when they came into this new world, claimed the
common law as their birthright, and brought it with them, except
such parts as were judged inapplicable to their new state and
condition. The common law thus claimed was the common law of their
native country, as it was amended or altered by English statutes in
force at the time of their emigration. Those statutes were never
re-enacted in this country, but were considered as incorporated
into the common law.7
While unwritten common law principles "not previously defined"
have been applied to cases and interpretation of statutes, there
has always been some legal foundation to rely upon.8
Strikingly, neither the offense of interference with a police
officer nor its constituent elements are mentioned in any
case decided in the Commonwealth of Massachusetts; nor is there
commentary in auxiliary legal sources such as rules of criminal
procedure, rules of evidence, sentencing guidelines, or model jury
instructions. This is an anomaly compared to other common law
crimes which have actually been recognized in the commonwealth.
For instance, prior to being codified, mayhem was a common law
crime defined as "violently and unlawfully depriving another of the
use of a member proper for his defence in fighting."9
Affray is also a common law crime supported in both case law and
statute.10 Both of these common law offenses have been
referenced in other types of legal analysis - and for many years.
For example, "the initiator of an affray is not in a position to
claim the benefit of [self] defense."11 However,
interference with a police officer is completely absent from legal
journals, cases, statutes, defenses, and procedure.
Under Massachusetts law, "[i]t is not necessary that courts
interpreting the common law be able to point to a decided case
exactly similar as to its facts,"12 and may instead
depend upon "usage and tradition, the well-known repositories of
legal learning, [and] works of approved
authority."13
For example, in an 1847 prosecution, the defendant was charged
with false and malicious libel, but argued that the indictment
should be dismissed because there was no written case law or
statute defining the offense.14 In upholding the
indictment, the Supreme Judicial Court held that "there is such a
thing as a common or unwritten law of Massachusetts, and that, when
it can be authentically established and sustained, it is of equal
authority and binding force with the statute law."15
In order to "authentically establish" the unwritten law, the
Chapman court relied upon a Massachusetts libel case from
1791. The court also identified statutory references to the
appellate process for libel convictions and the admissibility of
evidence to show the truth as a defense.16
Significantly, all were principles which articulated precedent and
procedure already decided in the Commonwealth of Massachusetts.
A look at usage, tradition, and custom fails to "authentically
establish" interference with a police officer as a common law
crime. On the contrary, the analysis offers affirmative reasons why
Massachusetts has not made this a crime.
The first professional police force was not created in England
until 1829 by Sir Robert Peel, almost 50 years after the signing of
the Massachusetts constitution.17 Replicating the
English model, but long after English precedents were a source for
our common law, the Massachusetts General Court passed a bill in
1838 to establish the first police department in the
commonwealth.18 Therefore, interference with a police
officer cannot be considered part of the common law imported from
English statutes because there was no concept of a professional
police force until after the American Revolution.
Moreover, early law in Massachusetts focused more on protecting
individual liberties and properties from governmental abuses than
preventing citizen's interference with police powers.19
Thus, it was common for sheriffs to be subject to common law
actions for wrongdoings in the execution of their
duties.20
Even more tellingly, a private citizen had the right to contest
an unlawful arrest or seizure of property with as much force as was
reasonably necessary.21 If this rule created difficulty
for police officers, the Supreme Judicial Court in 1829 believed
that it was "a hardship resulting from the voluntary assumption of
a hazardous office."22 Therefore, the common law custom
and tradition in Massachusetts favored an individual's right to
resist an unlawful arrest over the requirement to submit to police
authority.
Some states have criminalized interference with a police officer
by statute and Massachusetts has a relevant pending proposal. In
the 2003-2004 legislative session, Rep. Bruce J. Ayers proposed
HB109 to make it a crime to "knowingly and willfully obstruct,
resist, interfere with, or oppose any police officer ... in the
lawful performance of his duties."23 But this bill has
remained stalled in the House Committee on Steering Policy and
Scheduling for the last eight years.
Connecticut enacted a statute that a person may be charged with
interfering with an officer if "such person obstruct[ed],
resist[ed], hinder[ed] or endanger[ed] any peace
officer."24 In states where statutes have criminalized
verbal rather than physical conduct, the statutes have been
subjected to narrow constructions so as not to infringe upon
protected speech.25 Thus, statutes criminalizing
interference with a police officer must state with particularity
the offending conduct as well as the official duty interfered with
in order to meet constitutional standards.
With no legal authority to authenticate interference with a
police officer as a common law crime in Massachusetts, there is a
danger of violating the separation of powers through judicial
creation of new common law offense. The principle of separation of
powers is one of the cornerstones of the Massachusetts
government.26 "The Legislature has great latitude in
defining criminal conduct and in prescribing penalties to vindicate
the legitimate interests of society."27
The same, however, may not be said for the courts, which have
the power to apply the common law, but only premised on the usage,
customs, and traditions in the commonwealth.28 The
courts decide whether certain inherited common law crimes are
applicable or obsolete based upon both current applications and
analysis of the common law's lineage.29
Consistent with that premise, the courts adhere to the
longstanding common law rule that prohibits the judicial creation
of new common law crimes.30 In exercising restraint, the
Supreme Judicial Court has said, "[t]he public policy of the
commonwealth in the creation of crimes is not for this court to
determine, but for the Legislature."31
Without being able to authentically establish interference with
a police officer as a crime in case law, custom, usage, or
tradition, a judge who gives jury instructions outlining the
elements of interference with a police officer is making the law
rather than following it.
This article is dedicated to my mentor, Charles K.
Stephenson.
MOLLY RYAN
STREHORN focuses on post-conviction matters across the
commonwealth. She is a 2009 graduate of Western New England
University School of Law.
1The District Court Complaint Language Manual is not
a legal device. The Administrative Office of the District Court
serves an administrative function, taking no position on the
binding authority of the manual, as it is not even reviewed by a
committee.
2Trial Court Information Services Data Management
Team queried how many times the offense code COMLAW4 had been filed
between January 1, 2006 and August, 2010. Results showed:
year 2006, 362 charges; year 2007, 372 charges; year 2008, 349
charges; year 2008, 349 charges; year 2009, 278 charges; year 2010,
235 charges.
3Patrick Michael Rogers, The Massachusetts Police
Prosecutor's Guide: Statutes and Decisions for the Massachusetts
Police Prosecutor 56 (Commonwealth Police Services, Inc. 2010).
4G. L. c. 268, § 33; G. L. c. 268, § 32B; G. L. c.
268, § 13B.
5Commonwealth v. Fortuna, 80 Mass. App. Ct.
45, 50 (2011).
6Commonwealth v. Shave, 81 Mass. App. Ct.
1131 (2012) (holding that common law applied to interrupting an
officer's inquiry regarding a motor vehicle accident).
7Commonwealth v. Knowlton, 2 Mass. 530, 534
(1807)
8Commonwealth v. Klein, 372 Mass. 823, 833
(1977). See Commonwealth v. Triplett, 426 Mass. 26, 28 (1997)
("The common law crime of obstruction of justice has been
recognized in the Commonwealth for many years.")
9Commonwealth v. Newell, 7 Mass. 245, 248
(1810)
10See G.L. c. 275, § 14; Dist. Att'y. for Norfolk
Dist. v. Quincy Div. Dist. Court Dept., 444 Mass. 176, 178
(2005)
11Commonwealth v. Bray, 19 Mass. App. Ct.
751, 762 (1985). See also G.L. c. 265, § 14 (punishment for
mayhem); Commonwealth v. Ogden O., 448 Mass. 798 (2007)
(sufficiency of evidence for mayhem).
12Commonwealth v. Klein, 372 Mass. 823, 833
(1977)
13Commonwealth v. Churchill, 43 Mass. 118,
124 (1840). See also Commonwealth v. Warren, 6 Mass. 72 (1809)
(analyzing English statute passed before independence and adopted
as part of common law).
14Commonwealth v. Chapman, 54 Mass. 68, 68
(1847)
15Id. at 70.
16Id. at 75-77
17Theodore F.T. Plucknett, A Concise History of the
Common Law 75 (Little, Brown, and Company 1956)
18Donna M. Wells, Boston Police Department 7 (Arcadia
Publishing 2003)
19William E. Nelson, Americanization of the Common
Law: The Impact of Legal Change on Massachusetts Society, 1760-1830
13 (Stanley N. Katz ed., Harvard University Press 1975).
20See Marshall v. Hosmer, 4 Mass. 60, 63
(1808) ("The sheriff is answerable civiliter for the
defaults of his deputies, by nonfeasance or malfeasance, in the
duties of their office enjoined on them by law.")
21This concept evolved into the rule that a citizen
may only use force to resist an unlawful arrest if the force being
used to effectuate the arrest is excessive. Commonwealth v.
Graham, 62 Mass. App. Ct. 642, 652(2004). William E. Nelson,
Americanization of the Common Law: The Impact of Legal Change on
Massachusetts Society at 99.
22Commonwealth v. Kennard, 8 Pick. 133, 140
(1829). See also Roddy v. Finnegan, 43 Md. 490 (1876)
(holding that a police officer sued for assault and battery could
use the defense of effectuating a lawful arrest.)
232003 House Doc. No. 109
24Conn. Gen. Statutes Ann. § 53a-167a. Amendments to
the statute effective July 1, 2010 do not alter its meaning in this
context.
25Gooding v. Wilson, 405 U.S. 518
(1972). Compare Fla. Stat. Ann. § 843.02 (1987) ("[W]hoever
shall resist, obstruct, or oppose any officer ... in the execution
of legal process or in the lawful execution of any legal duty,
without offering or doing violence to the person or officer, shall
be guilty of a misdemeanor of the first degree.") with New Orleans,
LA, Ordinance 828, § 49-7 (1970), invalidated by Lewis v. City
of New Orleans, 415 U.S. 130 (1974) ("It shall be unlawful and
a breach of the peace for any person wantonly to curse or revile or
to use obscene or opprobrious language toward or with reference to
any member of the city police while in the actual performance of
his duty.")
26MASS. DECL. OF RIGHTS, Art. 30
27Commonwealth v. Pyles, 423 Mass. 717, 721
(1996)
28Commonwealth v. Hinds, 101 Mass. 209
(1869) (reversing guilty plea for forgery because complaint did not
allege an offense cognizable under statute or common law).
29Commonwealth v. Lopes, 318 Mass. 453, 458
(1945)
30Commonwealth v. Hayward, 10 Mass. 34, 35
(1813)
31Commonwealth v. Corbett, 307 Mass. 7, 8
(1940)