Supreme Judicial Court of Massachusetts, Middlesex
Heard: January 7, 2019.
received and sworn to in the Lowell Division of the District
Court Department on December 29, 2016.
case was tried before John F. Coffey, J.
Supreme Judicial Court on its own initiative transferred the
case from the Appeals Court.
Kavaja for the defendant.
Melissa Weisgold Johnsen, Assistant District Attorney, for
Nimni, Luke Ryan, & Molly Ryan Strehorn, for Committee
for Public Counsel Services & others, amici curiae,
submitted a brief.
J. Steele, for Commonwealth Second Amendment, amicus curiae,
submitted a brief.
Present: Gants, C.J., Lenk, Gaziano, Lowy, Budd, Cypher,
& Kafker, JJ.
address, for the first time, whether interference with the
lawful duties of a police officer is a common-law crime in
II, c. 6, art. 6, of the Massachusetts Constitution provides
that the common law that existed before the 1780 adoption of
that Constitution was "preserved and continued,"
and remains in full force until altered or repealed by the
Legislature. Crocker v. Justices of the
Superior Court, 208 Mass. 162, 171 (1911). After an
examination of our Nineteenth Century jurisprudence
concerning the illegal acts of "obstructing" or
"hindering" a police officer, as well as other
authoritative sources, we conclude that interference with the
lawful duties of a police officer was, and continues to be, a
common-law crime, albeit subject to carefully constructed
limitations to avoid criminalizing constitutionally protected
those limitations were exceeded in this case, we conclude
that the evidence was not sufficient to establish that the
defendant committed the crime of interference with a police
recite the facts in the light most favorable to the
Commonwealth. See Commonwealth v.
Boiling, 462 Mass. 440, 442 (2012) . On December 28,
2016, the Tyngsboro police department suspended the
defendant's class A license to carry firearms. At 8:15
£.M. that day, three police officers went to the
defendant's home to serve written notice of the
suspension, and to retrieve his firearms and ammunition.
Sergeant Charles Melanson knocked on the front door, while
two other officers stood to each side of the door.
defendant, who was at home with his wife and teenaged son,
answered the knock and stepped outside to speak with the
officers. Melanson explained that the officers were there to
serve a suspension of the defendant's license to carry
firearms, and to take his firearms (numbering fifteen) and
ammunition from his home. Melanson served the defendant with
written notice of the license suspension. The defendant
became argumentative and visibly upset. He repeatedly yelled
that he was not going to give up his firearms, and that he
intended to telephone his attorney. He told his wife, who had
come to the door, not to allow the officers to enter.
defendant attempted to go back inside, but Melanson put his
hand on the front door and held it shut. Again, the officers
told the defendant that they were there to confiscate his
firearms. He responded by insisting that he was not going to
give up his guns, and requested an opportunity to consult
with his attorney. While this was going on, Sergeant Mark
Borque went up the front stairs and walked into the house to
speak with the defendant's wife. The defendant told his
wife not to answer any questions and to telephone his
attorney. He protested that he was "[one hundred]
percent" not giving up his guns, and would not provide
the police with the combination to his gun safe. The
defendant then again attempted to enter his home. The
officers told him to stop, but he quickened his pace toward
the front door. One of the officers tackled the defendant to
the ground and, after a struggle, placed him under arrest.
defendant disputed the officers' version of events. He
testified that he told the police that he voluntarily would
surrender his firearms, but, before doing so, he requested an
opportunity to consult with his attorney to find out whether
he had any legal recourse. The defendant was concerned that
the police would mishandle his firearms, some of which were
expensive or had sentimental value. The officers would not
allow him to telephone his attorney, and entered his home
without permission. The defendant followed them inside and
demanded that they leave. At that point, he was tackled to
the ground and placed under arrest.
December 2016, a criminal complaint issued from the District
Court charging the defendant with failure to surrender
firearms, G. L. c. 269, § 10 (i); being a disorderly
person, G. L. c. 272, § 53; resisting arrest, G. L. c.
268, § 32B; and interference with a police officer. In
March 2017, the defendant filed a motion to dismiss all
charges due to a lack of probable cause. He argued that he
had a right, pursuant to G. L. c. 140, § 129D, to
maintain possession of his firearms pending an appeal from
the suspension of his firearm license. A District Court judge
denied the motion. In May 2017, the defendant filed a motion
to suppress evidence seized from his home on the ground that
police unlawfully had entered without a warrant. A different
District Court judge allowed the motion after an evidentiary
hearing. The judge found that no exception to the warrant
requirement authorized the police to enter the
defendant's home, forcibly open his gun safe, and
confiscate his firearms and ammunition. As a result of the
suppression order, the Commonwealth dismissed the charge of
failure to surrender a firearm.
September 2017, a two-day trial took place on the remaining
charges of being a disorderly person, resisting arrest, and
interference with a police officer. After the judge denied
the defendant's motion for a required finding of not
guilty, the jury convicted him of interference with a police
officer and acquitted him of the other charges.
defendant appealed from the conviction. He argues that the
judge erred in denying his motion to dismiss the charges
because he was not required to surrender his firearms under
G. L. c. 140, § 129D; the order immediately to surrender
his firearms violated the Second Amendment to the United
States Constitution; the evidence was insufficient to prove
interference with a police officer; and the jury instructions
"were woefully inadequate." We transferred the case
from the Appeals Court on our own motion.
defendant's appeal raises three issues. First, is the
crime with which he was charged recognized under
Massachusetts common law? Second, assuming that interference with
a police officer is a common-law crime, what does it
prohibit? Third, was the evidence, considered in the light
most favorable to the Commonwealth, sufficient to sustain the
Whether interference with a police officer is an offense
recognized under Massachusetts common law.
the Massachusetts Constitution was adopted in 1780, Part II,
c. 6, art. 6, provided for the continuation of the common law
by declaring that all of the laws "usually practised on
in the courts of law" were carried into effect as a
matter of State law until altered or repealed by the
Legislature, or declared invalid by a court. See
Pinnick v. Cleary, 360 Mass. 1, 11
(1971) (art. 6 provides for continuation in Commonwealth of
great body of common law); Crocker, 208 Mass. at 171
("The general body of jurisprudence which had heretofore
existed was thus preserved and continued"). The common
law of the Commonwealth, "when it can be authentically
established and sustained," is of "equal authority
and binding force" to laws enacted by the Legislature.
Commonwealth v. Chapman, 13 Met. 68, 70
(1847). See Sheehan, petitioner, 254 Mass. 342, 345
(1926) (definition of crimes "so far as not left to the
common law" is province of Legislature).
need not look far to find common-law crimes recognized in the
Commonwealth that continue with "equal authority and
binding force" today. See Chapman, 13 Met. at 70. In
cases of murder and manslaughter, G. L. c. 265, §§
1 and 13, establish penalties, but "what acts shall
constitute murder, what manslaughter, or what justifiable or
excusable homicide, are left to be decided by the rules and
principles of the common law." Chapman,
supra at 69. See, e.g., Commonwealth
v. Carter, 481 Mass. 352, 364 (2019);
Commonwealth v. Brown, 477 Mass.
805, 822 (2017), cert, denied, 139 S.Ct. 54 (2018);
Commonwealth v. Paulding, 438
Mass. 1, 8 (2002) .
common law derives originally "either [from] the common
law of England, or those English statutes passed before the
emigration of our ancestors." Chapman, 13 Met. at 68.
Thereafter, it was shaped by "usages, growing out of the
peculiar situation and exigencies of the earlier settlers of
Massachusetts, not traceable to any written statutes or
ordinances, but adopted by general consent."
Id. at 69. See Commonwealth v.
Knowlton, 2 Mass. 530, 534-535 (1807) (Massachusetts
common law was brought from England by "our
ancestors," and was amended and altered by practice and
ability to trace the roots of a given common-law offense is
hampered by a lack of regular reports of the early
jurisprudence in the Commonwealth. Prior to adoption of the
Massachusetts Constitution, "[t]he records of courts
were very imperfectly kept, and afford but little information
in regard to the rules of law discussed and adopted in
them." Chapman, 54 Mass. at 70. See
Commonwealth v. Churchill, 2 Met.
118, 124 (1840) ("Before the revolution, we had no
regular reports of judicial decisions . . . and the most
familiar rules and principles of law"). In 1839,
commissioners appointed by the Legislature to report on the
substance of Massachusetts common-law offenses observed,
"As there are no regular reports of our jurisprudence
further back than from a period of about twenty years after
the adoption of the constitution, we have no direct
contemporary evidence of the law so adopted . . . ."
Preliminary Report of the Commissioners on Criminal Law, 1839
Senate Doc. No. 21, at 20 (1839 Preliminary Report).
absence of a reported appellate decision, however, does not
remove a criminal offense from the common law. See
Commonwealth v. Klein, 372 Mass.
823, 833 (1977) ("It is true that sometimes, even in a
case of first impression, common law standards of criminality
not previously defined are applied against a
defendant"); Commonwealth v.
Nee, 83 Mass.App.Ct. 441, 444-445 (2013) (absence of
appellate decisions did not remove offense of "ancient
provenance" from common law). We have rejected the
narrow view that the common law could be regarded as adopted
only if "it could be shown affirmatively that it had
been adjudicated before the revolution." See
Churchill, 2 Met. at 124.
Other authoritative sources.
result, we must look to other authoritative sources to
ascertain the common law. The common law may be found in
"usage and tradition, and the well known repositories of
legal learning, [and] works of approved authority."
Churchill, 2 Met. at 124. There is no doubt that
these were the "great sources" of common law
adopted by Part II, c. 6, art. 6, of the Massachusetts
Constitution. Id. We also have held that the common
law of Massachusetts is reflected in "records of courts
of justice, well authenticated histories of trials, and books
of reports, digests, and brief statements of such decisions,
prepared by suitable ...