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Charges Against Allegedly Naked Walpole Teacher May be Excessive

Goggles.jpgThe Wrentham District Court will hear the charges of Open and Gross Lewdness and Disturbing the Peace that the Walpole Police filed against a Norfolk County Agricultural School teacher last week.

According to Wicked Local Walpole, a woman called the Walpole Police at 8:00 a.m. on Martin Luther King Day after twice passing a man in his driveway. The first time, she saw him he was wearing a hat, goggles, and a towel. The second time, "[i]n her return trip," he had "lost the towel." When the police arrived at his house, the man was wearing the towel and he insisted that he had never taken it off.

At that point it appears that the police were either going to give him the benefit of a doubt, or were going to file charges to be addressed at a clerk's hearing in the Wrentham District Court. That is, until another call came in two hours later. This time a woman said that a man was "naked" in the driveway (no mention of hat or goggles). To make matters worse, the woman said that he "thrust his hips onto his mail box as she drove by." This visual is highlighted with the allegedly accurate description of the man as having a "paunch" with "dark body hair."

With this information, the police obtained an arrest warrant for felony Open and Gross Lewdness and misdemeanor Disturbing the Peace. They executed the warrant at 3:00 p.m. on Wednesday. The article contains no information about his arraignment in the District Court.

Beyond the somewhat irregular allegations, this story brings to mind some issues with regard to Massachusetts Laws Chapter 272 entitled "Crimes Against Chastity, Morality, Decency, and Good Order." Both of the charges in this case are contained in this chapter.

While bodily exposure is an element of the crime of Open and Gross Lewdness, there needs to be more. Just being naked and being seen, is not enough. There must be proof beyond a reasonable doubt that the exposure was intentional. In other words, if the towel fell off, that would not be enough. Perhaps that is why the police apparently did not seek a warrant until the second woman said that the man was naked and thrusting "onto his mailbox." (I expect that "onto" was simply an unwise choice of words in the by the reporter).

In addition to exposure that is intentional, there must be even more. There must be proof that the intentional exposure was done to produce shock. And there must be proof that at least one person was actually shocked. Again, the prosecution will likely argue that the thrusting goes a long way toward satisfying this element. But, they will need to prove that the thrust was done specifically to shock the onlooker.

In sum, there must be proof that the teacher intended to expose certain parts of his body in a shocking way to other people who were in fact shocked. For the man to be convicted, the woman will have to come to court, testify, and thereby satisfy all of the elements, including shock.

If the prosecution is unable to prove the element of shock, they may fall back on a lesser offense of Indecent Exposure. Here there would have to be proof of intentional exposure along with someone being offended as opposed to shocked. That is an interesting distinction.

What is more interesting are the legal differences between the greater and lesser charges in this regard. Open and Gross Exposure is a felony, while Indecent Exposure is a misdemeanor. A more striking distinction is that the lesser charge actually requires exposure of genitals, while the more serious charge may be satisfied with non-genitalia such as buttocks or breasts. Apparently the drafters were concerned more with how one shows it, than what one shows. The case depends on the evidence, of course, but in my opinion the lesser charge may be more applicable. Even then, however, a conviction may not be easy in these circumstances.

It should be noted that a singe conviction of the felony Open and Gross Lewdness does not require one to register as a sex offender. A second conviction, however, does trigger that obligation an that obligation lasts for 20 years. I trust that the man has experienced criminal defense counsel to undertake the analyses and investigation necessary to bring an apparently imposing situation down to reality.

Even though it is probably the least of the teacher's concerns, let's look at the charge of Disturbing he Peace. Although this charge looks like a gift compared to the other, it could be even more difficult to prove when you look at the proof required. The elements of this crime are: 1) intentionally engaging in disruptive conduct such as making loud noises, threats, challenges, insults, etc. and 2) annoying/disturbing the tranquility of at least one person by doing such things.

So with Open and Gross one must be shocked, with Indecent Exposure one must be offended, and with Disturbing the peace one must be annoyed and/or disturbed.

In sum, what appears to be a relatively simple story actually has some provocative twists.

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Disorderly Conduct Charge for MBTA Train Surfer

red line train.jpgDisorderly Conduct charges were brought in the Quincy District Court against Justin Green of South Boston after he tried to surf a subway train out of the North Quincy MBTA station last Friday.

According to, some people in the train apparently saw Green hanging on to the top of a car as the train began to pull out of the station. The driver stopped the train for several minutes in order to get Green back on to the platform. When confronted, Green allegedly said that he had a "God given right to do anything he wants," and that he was only risking his own safety.

Depending on your perspective, he almost had a point. When you first read the story, you may get the feeling that he was doing something wrong, but ask, "what is the crime?" In fact, if not for the stopping of the train and inconveniencing the passengers, I doubt if the disorderly charge would apply. To be convicted of disorderly conduct here, the prosecution needs to prove 1) that Green created a hazardous condition that did not serve any legitimate purpose for Green, and 2) that Green recklessly created a risk of public inconvenience or alarm.

The second element is obvious. Green was attempting to surf at 5:30 p.m. on a Friday, and when the conductors stopped the train of his choice, other oncoming trains were delayed. So, its safe to say that he recklessly created a risk of inconvenience to several passengers on public transit.

The first element is actually not so clear. It may have been hazardous, but by what standard will the court determine whether or not Green's actions served a legitimate purpose for him. He has already said that he had a right to do as he pleased. He obviously considered train surfing his own "legitimate purpose," regardless of whether or not anyone else agreed.

However, since this is a very minor crime punishable by a $150 fine, it is unlikely that the Quincy District Court will delve too deeply into whether the law applies to what the accused believes to be legitimate versus what is objectively legitimate.

This is simply a story that illustrates the elements of a crime that is often used as a catch-all when nothing else seems to apply.

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Husband and Wife Charged with Assault and Battery with Dangerous Weapons (Rolls of Quarters)

Temp 018.JPGThe Walpole Police were called to the Main Street Shopping Center last Tuesday on a report of a melee outside of Supreme Pizza. According to the Walpole Times, Chris and Yvonnem Antonopoulos parked outside the pizza place and made insulting gestures through the glass from the sidewalk outside. The target of their gesticulations appears to have been the shop's owner. Their motive appears to be revenge. Apparently, the owner had previously given them a "letter of disinvite," banning them from the restaurant.

The Times does not report the owner's reasons for banning the couple from his establishment, but proprietors may forbid anyone they wish to forbid from their private property. A "letter of disinvite" is simply written evidence that property owners oppose another's presence and have made their wishes known to the target of their opposition. This is an essential element of the criminal charge of trespass.

It appears that Mr. and Mrs. Antonopoulos knew this and were abiding by the letter by staying on the sidewalk. Oddly enough, while they were avoiding the possibility of a misdemeanor trespass charge, they were each squeezing a roll of quarters in their fists for defense in a fight against the owner should he come outside. And come outside he did.

One may wonder why he did not simply call the police. But, the taunts had their desired effect and the pizza man came out and engaged Mr. Antonopoulos in combat. The two went to the pavement followed by Mrs. Antonopoulos who allegedly bit the victim's leg. To make matters worse for the husband and wife team, a 71-year-old man came out to attempt to break up the rumble and Mrs. Antonopoulos allegedly attacked him for his efforts.

The couple drove away leaving the "battered" victims behind. They drove towards the center of town and and were apprehended adjacent to the police station. Since there was no investigation of Operating Under the Influence, we may rule out alcohol as a factor in the couple's decision making.

To be fair, it would be very interesting to know why the shop owner banned them. Was it justified or not? Did they have good reasons to be upset? In addition, the pizza man and his helper apparently agreed to do battle with them, but did not get charged. The article says that the police determined from witness accounts that the Antonopouloses were the instigators. But they never attacked. Its like saying: "he started it by calling me names."

As it stands the couple must defend themselves in the Wrentham District Court against charges of Assault and Battery, Assault and Battery with a Dangerous Weapon, Assault and Battery upon a Person older than 60 years, Disorderly Conduct, and Disturbing the Peace.

I'm not too sure if holding a roll of quarters gives you more punching power, but the Assault and Battery with a Dangerous Weapon charge under these circumstances raises an interesting question. Since this charge requires proof that the accused battered another with a dangerous weapon, it requires proof that the weapon actually touched the victim. If the Antonopouloses had their fingers wrapped around the rolls of quarters and those weapons never actually made contact with the victims, can the charge be sustained? This is an important issue because this charge is a felony.

It should also be noted that the charge of Assault and Battery upon a person over the age of 60 years is also a felony with a possible state prison sentence of 3 years. I doubt very much if the couple in this case will be facing incarceration, but they surely would be well advised to seek experienced criminal defense counsel.

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Reports Vary Wildly About Incident Involving Injured Off-Duty Quincy Police Officer

September 25, 2012

Cuffs4.jpgQuincy Police arrested three people on Saturday as a result of their confrontation with an off-duty uniformed Quincy Police officer. Three news agencies described the incident differently. gave the most details reporting that as off-duty officer was driving near Independence Avenue and President Avenue he saw "several people standing around, one of whom was holding a baseball bat in a confrontational manner." The officer approached and the man took his bat and left in his car.

That, however, was not the end of this story. Someone yelled that another man had a knife and the officer told that man to put his hands on his head. The man did so but "then became combative," so the officer "took him to the ground" and handcuffed him. Yet another man attempted to pick up a jacket on the ground near the officer, the officer told him to stop approaching, and then struggled to arrest him. A woman "attempted to interfere [and] when she did not back off" the officer sprayed her with pepper spray and then arrested her.

The arrests were as follows: Stephen Guest and Jessica Duggan - Disorderly Conduct and Resisting Arrest. Stephen Pellegrine - Disorderly Conduct.

If the officer saw a man threatening another person with a bat, an investigation is not only justified, it is required. But what happened next? The situation appeared to be de-fused with the departure of the bat-wielding man. Is it grounds to ask someone to put his hands on his head because someone else said he had a knife? Having a knife is not always a crime. Was the officer going to search him? Or was he actually going to put hand-cuffs on him? Perhaps the man with his hands on his head was justified in being concerned (if not combative). Did the police find a knife on that man? Apparently not.

What about the man trying to retrieve his jacket? What's wrong with that, whether or not it was near the officer? The officer could have stepped away a little, or the officer could have handed the man his jacket. In fact, by picking it up the officer could have assessed its weight to determine the possible presence of a weapon. Was a weapon found in that jacket? Apparently not.

The prosecution theory must be that the men that were arrested were, in their individual capacities, acting in a disorderly manner and one of them (Guest) resisted being arrested for that charge. Ms. Duggan may have resisted her own arrest or interfered with the arrest of one of the men. In any event, in order to prove Resisting Arrest, there must be evidence that A) a person used or threatened to use force or violence against the arresting officer or B) a person used any other means that created a risk of injury to the officer. It is difficult to tell from this article whether the actions of these three reached that level. A lone officer, however, in a group of allegedly agitated individuals will be given wide leeway with regard to his decisions as to how to resolve the situation.

It is interesting to read other accounts of the story. The Patriot Ledger wrote that three people attacked the officer from behind as he attempted to break up a fight. reported that the officer stopped to talk to a man and a woman engaged in an argument and "several people emerged from a nearby home possibly with baseball bats." This article was entitled "3 arrested for possibly attacking Quincy officer."

Hopefully the truth will come out in the Quincy District Court cases. Each of the arrested would be well advised to obtain experienced defense counsel.

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Wrentham District Court Appearances Scheduled for Eight Men "Involved" in Dean College Beating

leg irons.jpgThe Franklin Police Department has brought charges against eight young men that were present during an assault upon a Dean College student on December 2, 2010. The incident took place on the college campus and all of the men were students.

A video recording of the incident shows a man, later identified as Kirk Dudley, delivering a knock-down punch to the victim followed by several more punches as the victim struggled to get back on his feet. Dudley then removed one of the victim's shoes and swung it at the victim's head before taking off the other shoe and departing with the pair. Throughout the video other men can be heard laughing and shouting. Some of them can be seen making hand signs, smiling, laughing, and possibly taunting the staggering victim.

A December 6, 2011 article at, stated that Dean College learned of the incident shortly after it occurred, and on the following Monday viewed the video that had been posted on line. According to the college's official statement, "[t]hat video has provided additional insight and disturbing views of what transpired." The college also said that the nine students had been expelled, and that the investigation was ongoing.

It appears that the video not only provided insight, but also provided evidence to be used against eight men that were standing by as Dudley did what he did. Today's Milford Daily News reports that the Franklin Police applied for Criminal Complaints against the eight onlookers and that they are scheduled to be arraigned in the Wrentham District Court on April 2. The article states that all eight will be charged with armed robbery and disorderly conduct.

The Milford Daily News article raises several issues. It states that the eight men will be charged with armed robbery, but states that Dudley has been charged with unarmed robbery. This is inconsistent, and it is hard to tell which one is wrong. Without some kind of weapon, there can be no armed robbery. It could, however, be said that Dudley actually committed an armed robbery because he used the first shoe as a weapon in the process of obtaining the second one.

Since the eight bystanders did not actually commit the acts necessary for robbery of any kind, the theory must be that they aided and abetted Dudley. In order for one of them to be guilty of robbery under this theory, the prosecution must prove that 1) he was present, 2) that he knew that Dudley was going to rob the victim, 3) that he shared Dudley's intent to rob the victim, and 4) that he either helped or made himself available to help if needed.

Each of the eight stands in his own position on these issues. What if one or two were just there and remained in the background without saying or doing anything? Should they be charged with robbery? Moreover, should the one or two that made hand signs or laughed loudly be in any worse position? If so, why? Video recording the commission of a crime is not a crime. Laughing at the commission of a crime is not a crime. And failing to intervene on behalf of a helpless victim is not a crime.

Furthermore, can it be proven that any of the eight shared Dudley's intent to take the shoes from the victim? The video does start with a view of the shoes, and the article does say that Dudley claimed that the victim had stolen the shoes from him. This may indicate that there was some kind of a plan to get the shoes, but as a matter of proof of shared intent with regard to each of the eight, it is a stretch. And what about the man behind the video recorder? Will he also be charged with robbery? Was he there to help steal shoes, or was he just using his cell phone to record a confrontation?

The video is powerful and dangerous evidence in this case. It makes the bystanders look heartless and callous to the point that one viewing the video may become enraged at their behavior. In fact, the first comment posted in response to the article, appears to come from a man that works on a college campus and he said that "[i]f they were at my school, I would be fired for a baseball bat 'Beat Down' on ALL OF THEM!¬!" So, each of the eight young men, no matter what their individual involvement, will have to overcome this sentiment.

On the other hand, while the college may be correct that the video is "disturbing," a juror's gut reaction to a disturbing video must be set aside and the factual evidence must be evaluated objectively to determine if it supports the crime charged. Moreover, it must be evaluated for each individual charged. After all, these eight young men all acted differently, and they are all being charged with a life felony. (As well as the misdemeanor of Disorderly Conduct).

I have not seen all of the evidence. What I have written here is based upon the news reports and the video itself. Surely, the victim gave a statement. There may be statements from one or more of the eight men as well as statements from other witnesses. In the final analysis, the video will be the most shocking and and most probative evidence. If evaluated fairly, it should actually help exonerate some or all of the eight bystanders.

All crime is bad behavior, but not all bad behavior is crime.

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Patriot Edelman Skates from Groping Charge as Former Bruin Milbury Hit with Roughing Charge

December 17, 2011

There were two local sports figures in criminal law news reports this week. Yesterday, the Boston Globe reported: "Juilian Edelman 'humbled' after charges dropped." Today, the Globe reported: "Milbury sought in Pee Wee altercation."

First up, Patriot, Julian Edelman. On the strength of a woman's allegations that Edleman groped her in a night club, the Boston Police arrested the wide receiver/kick returner/defensive back on November 1. The two had been on the dance floor at the Storyville night club in Boston this Halloween. Edelman was dressed as the character Lieutenant Jim Dangle from the Reno 911 show. The unnamed woman's costume was not described, but she reported that that Edelman "reached under [it] and grabbed her crotch."

The Boston Police arrested Edelman and charged him with "indecent assault and battery." He was arraigned in the Boston Municipal Court and released without the imposition of bail. The Globe reported that he was scheduled to return on January 10, 2012. The case, however, must have been rescheduled for Thursday this week. The prosecution then announced that after a thorough investigation, they would not be able to meet their burden of proof beyond a reasonable doubt.

According to the Globe, the official statement was: "To constitute indecent assault and battery, physical contact must be intentional; potentially physically harmful or an affront to the victim's integrity; fundamentally offensive to contemporary moral values; and without justification of excuse. Prosecutors could not prove these elements with evidence contained in the surveillance imagery, witness statements, and other evidence." The DA's press secretary added that the decision to drop the charges was based on the "provability of the case," and had "absolutely nothing to do" with the identity of the parties.

This is obviously good news for Edelman and the Patriots who will be facing the Broncos in Denver tomorrow afternoon. Fans hope that Edelman has a clear head as he will be needed in his fairly new role in the struggling (32d in the league) defensive backfield. Especially with "Tebow Time" looming. The resolution of the court case is, however, somewhat puzzling. It leaves one to think that there must be more to the story. If a woman says that a man grabbed her crotch without her consent, witnesses and video recordings are not necessary. That statement covers all the elements of the crime. She just needs to take the stand and tell the jury that is what happened. If they believe her it's a conviction, if not, it's an acquittal. She is most certainly the missing link in the prosecution's case. Without her, they didn't have one.

Next up, Mike Milbury, a far more prominent local sports figure. He played 12 seasons for the Bruins, followed by serving as the team's assistant general manager and then head coach. He is currently a sports media analyst, and as we learned from recent news, an assistant coach and director of coaching with his son's Pee Wee hockey team - the Boch Blazers.

The Boston Globe reports that on December 9, the Blazers played the Boston Junior Blackhawks at Jack Kirrane Ice Skating Rink in Brookline. There were reports that a 12-year old boy had been "antagonizing" Milbury's son, Jake, during the game. Milbury complained to the Blackhawk's coach without redress. After the game, the kids had pizza on the ice and then lined up for a shoot-out at center ice. At this point, the alleged victim threw Jake to the ice and a scrum ensued. The victim's mother said that Mike Milbury intervened, picked her son up by the shirt, shook him, and yelled at him. Surely, there were several other witnesses.

The Brookline Police investigated and decided to bring charges against Milbury including assault and battery, threatening to commit a crime, and disorderly conduct. It is unclear if Brookline Police Captain Thomas Keaveny was part of the investigation, but he told the Globe that he has four children of his own who have played sports, and "it doesn't surprise him to receive reports a former professional hockey player getting involved in an alleged assault ." He also said: "I've seen a lot of irresponsible things done by adults and Mike Milbury is no different in my mind." He then attempted to walk this back by saying that these are "just allegations," but a bell, as we say, cannot be un-rung.

Luckily for Milbury, the charges were all misdemeanors and none of the alleged crimes were witnessed by the police. (Captain Keaveny apparently came to his conclusions without the benefit of first-hand knowledge). As such, Milbury was not arrested, and he is entitled to a hearing before the Clerk Magistrate of the Brookline District Court to determine whether a criminal complaint will issue against him. As I have said in the past, this is an excellent opportunity to get folks together and hash out their differences without the necessity of drawn-out criminal court intervention.

Whether that is possible here is somewhat problematic. On one hand is Milbury who watched his own son being antagonized and then thrown to the ice. Milbury has people on his side that describe him as a great guy, as a fantastic coach who is well loved by the kids, and as being a proponent of peace on the Pee Wee ice. On the other is a police captain who has exhibited a bias against former professional athletes in general and against Milbury in particular, as well as an understandably upset mother who witnessed her own son being manhandled by an adult. This one will be a challenge for the magistrate, especially with the pressure of media coverage.

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Boston Municipal Court to Hear Assault Charges Against Occupy Boston Protester

November 25, 2011

Occupy boston tent city.jpgThe Boston Police arrested Jade Anderson at the "Occupy Boston" site on Saturday, November 19. According to the, a witness called 911 to report that a man was assaulting a woman at the demonstration, and when the police arrived, Ms. Anderson assaulted them.

The Suffolk County District Attorney's Office and the Boston Police reported the following: While to police were investigating the 911 call, Ms. Anderson ran at them chanting anti-police slogans and sprayed them "with spittle as she did so." She pushed one officer and when he told her to leave the area, she punched him in the face. A second officer intervened and received the same from Anderson. All three went to the ground as the police tried to arrest her.

The police charged her with one count of being a Disorderly Person and two counts of Assault and Battery on a Police Officer. Apparently Ms. Anderson bailed out of the police station and was ordered to appear for arraignment in the Boston Municipal Court on Tuesday, November 22. She however, did not show up, and the Boston Municipal Court entered her default and issued a warrant for her arrest.

She was not hard for the Boston Police to find. The next day, they spotted her at the same site with a conspicuous new hair color - purple. During their attempt to arrest her on the warrant, she allegedly kicked one of them in the leg. Boston .com reports that when asked why she did it, she said, "Because you [expletive] deserved it." She would later apologize and explain that she "had to do what she had to do to fight the corruption."

The police transported her to the Boston Municipal Court for arraignment. The court Bail set bail at $850 and ordered her to stay away from all Occupy Boston activities in the city. There may be more to this than has been reported, or she may have just let her passion to fight the corruption get the better of her. An experienced criminal defense attorney, will surely assist her in presenting her defense.

It would appear that Ms. Anderson must now defend herself against charges from two different cases. The original charges of Disorderly Conduct and Assault and Battery on a Police Officer were all misdemeanors. Kicking the police officer, however, may have resulted in a felony charge of Assault and Battery with a Dangerous Weapon (foot with shoe on it). She is 20 years old and will obviously be advised to avoid a conviction of any charge. A criminal record may have long lasting negative consequences, especially a record of a felony conviction.

In the event that this young woman has no prior record, she will likely be able to resolve the cases without incurring a criminal record. She may do this if she is willing to admit that the police have enough evidence, and ask the court not to convict her but to continue the case for a period of time and then dismiss it. If however, she has a legitimate defense, or her passion to fight the power compels her to take a stand, she may request trials.

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Hingham District Court Arraignment for Quincy Man Charged AFTER Swimming During Hurricane

September 1, 2011

Waves1.jpgThe Massachusetts State Police arrested Daniel Jacques of Quincy on Sunday for swimming at Nantasket Beach during hurricane Irene. According to the Patriot Ledger, storm watchers on the beach flagged down the troopers to tell them that Jacques was swimming in the "churning" water.

The troopers apparently got Mr. Jacques' attention and he came towards shore. When he got close, however, he took off running. The troopers gave chase and later claimed that he almost caused several car crashes as he ran. After they caught him, the troopers charged him with being a disorderly person in violation of Massachusetts General Laws chapter 272, section 53.

This story raises some interesting questions and illustrates some basic principles of criminal law. The first question is what did Jacques do to deserve being arrested? A cursory read of the article's headline may lead one to believe that Jacques was arrested for hurricane swimming. Although the the rest of the article does not address it specifically, it is fairly clear that the real reason for his arrest was his running though traffic.

Patriot Ledger commenter Right Auntie said: "Disorderly conduct is a charge when they can't find one to charge someone with." This may sometimes appear to be the case, but to be charged with disorderly conduct or any other crime, there must be evidence of specific criminal elements defined by the written statute.

These are the statutorily defined elements of disorderly conduct:

1. Engaging in fighting/threatening or engaging in violent/tumultuous behavior or creating a hazardous or physically offensive condition by an act the served no legitimate purpose;
2. engaging in actions that were likely to affect the public; and
3. engaging in this behavior while intending to cause a public inconvenience or recklessly creating a risk of public inconvenience, annoyance or alarm.

It would be somewhat of a stretch to say that hurricane swimming fits the definition. Running through traffic is closer. The prosecution may argue that Jacques created a hazardous condition which likely affected the public and recklessly created a risk of public inconvenience as he ran in front of moving cars.

In the unlikely event of a trial on this matter, the issue of fact that will most likely be contested is whether Jacques actually caused near accidents. Jacques may argue that he did nothing criminal by swimming and the troopers knew it, but chased him just because he ran. After all, if he were not committing a crime by swimming, and was not going to be arrested for it, why were the police chasing him through traffic or anywhere else?

Hopefully, Jacques will retain counsel able to end the matter without a conviction for any crime.

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Dedham Birthday Party Ends in Fights and Arrests

cuffs black man.jpgDedham, Boston, Westwood, Needham, and Massachusetts State Police were invited by radio to James Brown's birthday party at the Dedham VFW post over the weekend. According to the Dedham Transcript, sometime after midnight the party moved from the hall to the parking lot and somewhere along the way the mood changed from revelry to rampage. Upon their arrival, the Dedham Police found "widespread intoxication," a quarrelsome crowd of 50 to 75 people, and "fights starting here and there." Because of the situation and the sheer number of people involved, the Dedham Police called in reinforcements from out of town and assembled a force of some 30 police officers. These officers were able to restore order after 30 to 40 minutes.

What could have been a lot worse for a lot of people resulted in three arrests. Atarrah Small was fighting and therefore arrested for assault and battery. Levar Fernandes was charged with resisting arrest and disorderly conduct. And sadly, James Brown, the birthday boy himself, merited the most serious charges - assault and battery on a police officer (technically "assault and battery on a public employee") and disorderly conduct. All charges will be litigated in the Dedham District Court.

The article did not contain any reference to the person that Ms. Small was fighting with or explanation as to the lack of charges against that person. If the police did not see Ms. Small strike the other person, then live testimony from the other person will be necessary to prove the case against her. Even if the police witnessed the woman fighting, a question may still exist as to who started the fight. If she were not the initial aggressor, and was merely defending herself, the charges may not hold. This is similar to the common football scenario where the referee does not see the initial foul but does see the unsportsmanlike reaction to it.

Since there must be a valid arrest in order to be charged with resisting arrest, one must assume that Mr. Fernandes had been disorderly first and then put up a struggle when the police attempted to arrest him on that charge. Disorderly conduct is not an uncommon charge in such circumstances, and once one person gets publicly arrested, the rest of the crowd tends to get the message. Most would agree that they know disorderly conduct when they see it, but for it to be a crime certain elements must be proven. The charge requires proof that that one's actions (tumultuousness, fighting, threats, violence, etc.) were such that they would likely affect the public, and that they were undertaken with the intent to alarm to the public or with reckless disregard as to whether they would or not. If any element is missing, the charge cannot be sustained.

Lastly, James Brown was taken into custody for assault and battery on a police officer and disorderly conduct. The article does not give any specifics, but I would suspect that the police felt that Mr. Brown was not acquiescing to their commands to disperse in a timely fashion, and perhaps voiced his displeasure with their appearance at his party. Most likely, the alleged assaultive behavior took place during Mr. Brown's birthday arrest. Surely, with 50 to 75 guests, he was able to find resources to bail out of the Dedham Police station in short order, and will retain experienced local counsel.

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