Interfering with a police officer: a common law offense

Issue March 2013 By Molly Ryan Strehorn

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.")


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)