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SJC-12620

                  COMMONWEALTH   vs.   MARK ADAMS.



        Middlesex.      January 7, 2019. - June 27, 2019.

   Present:   Gants, C.J., Lenk, Gaziano, Lowy, Budd, Cypher,
                          & Kafker, JJ.


              Unlawful Interference.   Police Officer.



     Complaint received and sworn to in the Lowell Division of
the District Court Department on December 29, 2016.

    The case was tried before John F. Coffey, J.

     The Supreme Judicial Court on its own initiative
transferred the case from the Appeals Court.


     Ilir Kavaja for the defendant.
     Melissa Weisgold Johnsen, Assistant District Attorney, for
the Commonwealth.
     Oren Nimni, Luke Ryan, & Molly Ryan Strehorn, for Committee
for Public Counsel Services & others, amici curiae, submitted a
brief.
     Lisa J. Steele, for Commonwealth Second Amendment, amicus
curiae, submitted a brief.


    GAZIANO, J.    We address, for the first time, whether

interference with the lawful duties of a police officer is a
                                                                        2


common-law crime in Massachusetts.

     Part 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remains in full force until altered or repealed by the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

activities.

     Because 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

officer.1

     1.     Background.   a.    Facts.   We recite the facts in the

light most favorable to the Commonwealth.        See Commonwealth v.




     1 We acknowledge the amicus briefs submitted by the
Committee for Public Counsel Services, Lawyers for Civil Rights,
Massachusetts Association of Criminal Defense Attorneys, and
American Civil Liberties Union of Massachusetts; and by
Commonwealth Second Amendment.
                                                                     3


Bolling, 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 P.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.

    The 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.

    The 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
                                                                        4


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.

    The 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.

    b.    Prior proceedings.    In December 2016, a criminal

complaint issued from the District Court charging the defendant

with failure to surrender firearms, G. L. c. 269, § 10 (i);
                                                                    5


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.

    In 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.

    The defendant appealed from the conviction.    He argues that

the judge erred in denying his motion to dismiss the charges
                                                                   6


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.

     2.    Discussion.   The defendant's appeal raises three

issues.2   First, is the crime with which he was charged

recognized under Massachusetts common law?3    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 conviction?

     a.    Whether interference with a police officer is an

offense recognized under Massachusetts common law.     When the


     2 Because of the result we reach, we do not address the
defendant's contention that the jury instructions were "woefully
inadequate."

     3 The defendant did not challenge the common-law basis for
the charge of interference with a police officer in the District
Court, and does not raise the issue on appeal. When we
transferred the case from the Appeals Court, we solicited amicus
briefs that addressed "[w]hether Massachusetts should recognize
the common-law crime of interfering with a police officer in the
lawful performance of his or her duties." See G. L. c. 277,
§ 47A ("A defense or objection based upon . . . the failure to
charge an offense may be raised by motion to dismiss prior to
trial, but shall be noticed by the court at any time").
                                                                     7


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.4    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).

     One 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




     4 Part II, c. 6, art. 6, of the Massachusetts Constitution
provides, "All the laws which have heretofore been adopted, used
and approved in the Province, Colony or State of Massachusetts
Bay, and usually practised on in the courts of law, shall still
remain and be in full force, until altered or repealed by the
legislature; such parts only excepted as are repugnant to the
rights and liberties contained in this constitution."
                                                                     8


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."5     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).

      i.    Origins.   Massachusetts 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 usage).

      Our ability to trace the roots of a given common-law


      5Other offenses that exist as part of Massachusetts common
law include solicitation to commit a felony, see Commonwealth v.
Barsell, 424 Mass. 737, 740 (1997); forgery, see Commonwealth v.
Apalakis, 396 Mass. 292, 298 (1985); uttering a forged
instrument, see Commonwealth v. Russell, 156 Mass. 196, 197
(1892); conspiracy, see Commonwealth v. Cantres, 405 Mass. 238,
240 (1989); and affray, see Commonwealth v. Nee, 83 Mass. App.
Ct. 441, 444-445 (2013).
                                                                   9


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).

    The 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
                                                                    10


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."6    See

Churchill, 2 Met. at 124.

      ii.   Other authoritative sources.   As a 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 persons, and

the treatises of sages of the profession, whose works have an

established reputation for correctness."     See Chapman, 13 Met.

at 70.

      We thus undertake to trace the common-law history of

interference with a police officer by examining the following

available sources:     English law prior to, and contemporaneous


      6In Commonwealth v. Shave, 81 Mass. App. Ct. 1131 (2012),
the Appeals Court, in an unpublished decision issued pursuant to
its rule 1:28, mentioned interference with a police officer as a
crime, without discussion of the validity of the offense.
                                                                       11


with, the adoption of the Massachusetts Constitution; our mid-

Nineteenth Century case law that references the unlawful acts of

"obstructing" or "hindering" a police officer; an 1844 report

commissioned by the Legislature that described categories of

common-law offenses known as "obstructing and perverting the

course of justice"; the law usually and traditionally practiced

in the Commonwealth as reflected in the 1972 Proposed Criminal

Code of Massachusetts and contemporary Massachusetts court

records from 1977 to 2018; and the common law of other

jurisdictions.   Based on these sources, the common-law offense

of interfering with a police officer was charged (and defendants

were convicted of the offense) at least as early as 1634.

    iii.   English law.   We turn first to the common law of

England.   The charge of interference with a police officer

appeared in a 1634 English case involving a citizen's lawsuit

against a constable for false imprisonment.   In Sheffeld's Case,

Clayt. 10, 10-11 (1634), a constable questioned the plaintiff,

who was a stranger, about which way he had come into town.       The

plaintiff answered that he had come "over the bridge."     The

judge found this to be a "scornfull answer," and noted that the

plaintiff "had no Passe," yet nonetheless had determined to

travel without one.   The judge decided that there was "good

cause" to arrest the plaintiff for "opposing the Constable."

See Busch v. State, 289 Md. 669, 675-676 (1981), quoting
                                                                  12


Sheffeld's Case, supra (common-law offense of resisting,

hindering, or obstructing officer was described long ago in

Sheffeld's Case).   In Rex v. Brady, 2 Leach C.C. 803, 804

(1797), decided after the adoption of the Massachusetts

Constitution, a defendant was charged with three offenses:

assaulting an officer, and thereby hindering him; assaulting an

officer; and that the defendant "had hindered, opposed, and

obstructed [the officer] . . . in the due execution of his

duty."

    iv.   Nineteenth Century Massachusetts cases.   Our early

case law, by contrast, does not clearly establish interference

with a police officer as an independent offense.    Rather, in

most reported cases, the act of obstructing or hindering a

police officer functions as an aggravating factor to a charge of

assaulting a police officer.

    The closest support for the argument that interference with

a police officer is a stand-alone common-law offense is found in

Commonwealth v. Hastings, 9 Met. 259 (1845).   The indictment in

Hastings alleged that the defendant,

    "with force and arms, in and upon one Grant Learned an
    assault did make, said Learned then and there being a
    police officer of the city of Boston, and then and there
    being in the lawful discharge of his duty as such police
    officer, and him then and there did beat, bruise, wound and
    evil treat, and did then and there obstruct, hinder and
    oppose said Learned, in the discharge of his duty as such
    police officer, and which he, the said Learned, was then
    and there attempting lawfully to perform."
                                                                      13



Id. at 259-260.   The facts underlying the indictment established

that Learned, who was appointed as a police officer to patrol a

Boston theater, had arrested a patron for being drunk and

disorderly.   Id. at 260.   On the way "towards the jail or watch

house," Learned released the defendant on the defendant's

promise to go directly home.   Id.   Instead, while still in

Learned's sight, the defendant went straight into a barroom.

Learned followed him inside and "retook" the defendant for the

purpose of conveying him to jail.    Id.   "[T]he defendant

thereupon interfered, and obstructed Learned."     Id.

    The primary issue raised in Hastings's appeal was whether

the police officer was assaulted while in the exercise of his

legal authority to patrol the theater.     Id. at 261-262.    The

less than clear language of the indictment could be read as

charging Hastings either with one offense or with two separate

offenses. In the first view, the indictment could be understood

as a single offense of assaulting Learned, with the acts of

obstructing or hindering a police officer aggravating that

assault.   Id. at 260.   The indictment also could be construed,

however, as alleging two separate offenses:      aggravated assault

and interference with a police officer.    Id.

    In that view, the first offense, aggravated assault, is

described as, "with force and arms, in and upon one Grant
                                                                     14


Learned an assault did make, said Learned then and there being a

police officer of the city of Boston, and then and there being

in the lawful discharge of his duty as such police officer."

Id. at 259-260.     The second offense, obstructing or hindering a

police officer, could be supported based on the language in the

indictment alleging that the defendant "and . . . then and there

did beat, bruise, wound and evil treat, and did then and there

obstruct, hinder and oppose said Learned, in the discharge of

his duty as such police officer, and which he, said Learned, was

then and there attempting lawfully to perform" (emphasis added).

Id. at 260.

    In a later decision, this court described interference with

a police officer as an aggravating factor to simple assault.

See Commonwealth v. Kirby, 2 Cush. 577, 582 (1849).     The

defendant in that case was charged with assaulting a constable

and with "hindering and opposing [the constable] while engaged

in the due and lawful execution of the duties of his office."

Id. at 578.   The defendant had prevented the constable from

executing a warrant for the apprehension of a third party.     Id.

The defendant argued that the indictment was deficient because

it failed to allege that he knew, at the time of the alleged

interference, that the person entering the residence was a

constable.    Id.   We concluded that the element of knowledge was

sufficiently alleged, and that the indictment charged a simple
                                                                    15


assault upon the constable with "the aggravation that it was

made upon a constable while in the discharge of the duties of

his office, and with the design of hindering and opposing him in

the due execution of such official duty."    Id. at 581-582.   See

Commonwealth v. McHugh, 157 Mass. 457, 458 (1892) (defendant was

charged with "assault upon . . . a constable, while in the

discharge of his duty," i.e., preventing constable from removing

goods subject to attachment by forcibly grabbing hold of

constable's coat and whiskers, and throwing him to floor);

Commonwealth v. Tobin, 108 Mass. 426, 426 (1871) (defendant

charged with assaulting police officer, "and then and there

also" hindering or opposing officer in lawful discharge of his

duties).

      The practice of charging obstructing or hindering a police

officer as an aggravated form of assault was described in

Commonwealth v. Hyde, Thacher's Crim. Cas. 112 (Boston Mun. Ct.

1825).    The Commonwealth charged Hyde as follows:   "first, for

an assault and battery committed upon Jason Braman, a constable

of the city of Boston, on the 25th of May, 1825, said Braman

being at the time in the actual discharge of the duties of said

office:    second, for a riotous assembling together to commit an

unlawful act, and for committing an assault upon the body of

Jason Braman, a constable in the exercise of his said office."

Id.   The judge addressed the limited statutory authority granted
                                                                        16


justices of the peace to punish "all assaults and batteries that

are not of a high and aggravated nature."    Id. at 113-114.       He

concluded that "where there are circumstances of aggravation, as

where the assault is committed upon a magistrate, a sheriff or

other officer in the actual administration of his office, . . .

the jurisdiction exceeds the power of a justice of the peace."

Id. at 114.

     v.    1844 legislative commission report of the penal code.

In 1837, the Legislature appointed a five-person commission to

"reduce so much of the Common Law of Massachusetts, as relates

to crimes and punishments and the incidents thereof, to a

written and systematic Code."7    Resolves 1837, c. 30.   The

commissioners examined "[a]n extensive mass of materials":

"[n]umerous digests, treatises, and volumes of reports, . . .

occupied wholly with the jurisprudence in relation to crimes and

punishments."    1839 Preliminary Report, supra at 21.    In the

preface to their final report, the commissioners assured the

Legislature that "no part of it [had] been finally concluded

upon without much care to avoid errors and omissions," and that

"no degree of care [had] been wanting, nor any labor spared."

Report of the Penal Code of Massachusetts, at iv (1844) (1844

Report).




     7   This code was not codified.
                                                                    17


    Chapter 29 of the 1844 Report describes common-law offenses

under the general topic of prohibitions against "Obstructing and

Perverting the Course of Justice."   Id. at xv.   The offenses

listed in that chapter include escape, refusing to receive a

prisoner, refusing assistance to an officer, preventing or

suppressing evidence, bribery, and common barratry (vexatious

incitement of a baseless lawsuit).   Notably, §§ 17 and 18 of

that chapter describe, respectively, the common-law offenses of

"threats and intimidation" and "other obstructions to the course

of justice."   1844 Report, supra at xvi.   Section 17 of chapter

29 of the 1844 Report states:

    "Whoever wilfully obstructs or attempts to obstruct the
    public legislation, or the due administration or execution
    of the law, by threats of violence against, or intimidation
    of, or endeavoring to intimidate, any member of the
    council, or senate, or house of representatives, or any
    legislative, executive, civil, military or judicial
    officer, or any officer, functionary or person legally
    charged with any duty in the administration, enforcement or
    execution of the law, shall be punished . . . ."

Section 18 of chapter 29 of the 1844 Report provides:

    "Whoever, otherwise than as specified in the preceding
    sections, wilfully and not in the legal exercise of any
    authority, power, function or right, guarantied or granted
    by the constitution or laws, prevents, obstructs, disturbs,
    defeats or perverts the public legislation, or due
    administration, enforcement and execution of the laws,
    whether by wilfully hindering any public, executive,
    legislative, judicial, civil or other officer, commissioner
    or functionary in, or wilfully diverting him from, the
    discharge of his duties and exercise of his rights and
    functions under the laws and constitution, or in any other
    way or by any other means, not authorized by law, shall be
    punished . . . ."
                                                                   18



     As described in the 1844 Report, and as applicable to the

defendant's case, at that time Massachusetts common law included

broad prohibitions against willfully obstructing or hindering

governmental officials in the lawful performance of their

duties.    It is significant that Massachusetts common law

exempted from criminal liability the "legal exercise of any

authority, power, function or right, guarantied or granted by

the constitution or laws."    See id.   See also discussion, infra.

     vi.    1972 Proposed Criminal Code.   More than a century

later, the common-law offense described in § 17    of chapter 29

of the 1844 Report (obstruction by threats of violence or

intimidation) reappeared in the 1972 Proposed Criminal Code of

Massachusetts.8   The Proposed Criminal Code, drafted by the

Governor's committee on law enforcement and administration of

criminal justice, included a section prohibiting "obstructing

government administration."    According to the provisions of that

code, an individual would have committed a "class A misdemeanor"

if he or she "use[d] force, violence or intimidation, or

engage[d] in any other unlawful act with intent to interfere

with a person he [or she] knows to be a public servant

performing or purporting to perform an official function."

Proposed Criminal Code of Massachusetts, c. 268, § 9(a)(1)


     8   This proposed code was not codified.
                                                                   19


(1972).    The crime of obstructing government administration did

not apply to the "failure to perform a legal duty other than an

official duty, or any other means of avoiding compliance with

law without affirmative interference with governmental

functions."   Id. at § 9(b).

    vii.    Contemporary Trial Court records.    An examination of

the Trial Court's electronic case management system, using

records beginning in 1977 (when those records first became

available electronically) through 2018, shows that 2,600

individuals were charged with interference with a police officer

during that period.    See Appendices A, B.

    Of the 2,600 charges of that crime from 1977 through 2018,

the overwhelming majority were charged after 1994.    The number

of offenses charged annually was in the single digits from 1977

through 1993, with a median of 2.5 per year.     In 1994, the

number of charges of interference with a police officer jumped

to twenty-seven.   Thereafter, the annual number of charges

continued to increase, but remained less than one hundred

annually, with a median of 48.5, through 2010.    Beginning in

2011, the annual median of charges was 242, but overall the

number of charges increased substantially in almost every year,

reaching a high of 335 in 2018.   From 2002 through 2018, the

crime of interference with a police officer was the most serious

offense of which a defendant was convicted in 147 cases, or 5.65
                                                                   20


percent of the number of times it was charged.

    This significant increase in charges of interfering with a

police officer coincided with the 1994 publication of a District

Court complaint manual.   The administrative office of the

District Court published the manual to provide "offense codes

and charging language for more than 5,000 offenses."    District

Court Complaint Language Manual, at 1 (rev. Apr. 13, 2018).      The

complaint manual includes the common-law offenses of affray,

criminal contempt of court, escape from a police officer,

interference with a police officer, resisting arrest, soliciting

another to commit a felony, obstruction of justice, forgery, and

uttering.   Under these definitions, an individual interfered

with a police officer if he or she "did intimidate, hinder or

interrupt a police officer in the lawful performance of his or

her duty, in violation of the Common Law."   Id.

    viii.   Common law in other jurisdictions.     Finally, in

defining Massachusetts common law, we also consider the common

law of other jurisdictions, as well as statements of

contemporary commentators.   Cf. Commonwealth v. Barsell, 424

Mass. 737, 739 (1997) (other States and commentators support

conclusion that common-law solicitation to murder is

misdemeanor).

    Connecticut, Maryland, Michigan, South Carolina, and

Tennessee recognize that the offense of interference with a
                                                                   21


police officer existed in their common law.   See State v. Beck,

5 Conn. Cir. Ct. 587, 589 (1969); Roddy v. Finnegan, 43 Md. 490,

505 (1876); People v. Krum, 374 Mich. 356, 361, cert. denied,

381 U.S. 935 (1965); State v. Kirven, 279 S.C. 541, 543 (1983);

Pope v. State, 528 S.W.2d 54, 56 (Tenn. Crim. App. 1975).   See

also J. Miller, Handbook of Criminal law 461 (1934) ("Any

willful obstruction of justice by resisting an officer who is

endeavoring to perform his official duty is a misdemeanor at

common law . . ."); R.M. Perkins, Criminal Law 495-497 (2d ed.

1969) ("One of the most common forms of obstruction of justice

involves an interference with a public officer in the discharge

of his official duty"); 4 C.E. Torcia, Wharton's Criminal Law

§ 567 (15th ed. 1996) ("At common law, the obstruction of or

resistance to the performance of a governmental function, as

where a police officer or other public servant is obstructed in

the performance of his duty, constitutes an offense").

    In sum, we conclude that the offense of interference with a

police officer existed in Massachusetts common law.   We turn to

the question of what it prohibits, and what it does not.

    b.   What constitutes the offense of interference with a

police officer?   "In the prosecution of crimes under the common

law apart from statute, ordinarily it is necessary to allege and

prove a guilty intent, and as a general principle a crime is not

committed if the mind of the person doing the act is innocent."
                                                                   22


Commonwealth v. Mixer, 207 Mass. 141, 142 (1910).     See

Commonwealth v. Hawkins, 157 Mass. 551, 553 (1893) ("It is a

general rule in criminal proceedings at common law that the

defendant cannot be convicted unless a criminal intent is shown

. . ."); Commonwealth v. Presby, 14 Gray 65, 66-67 (1859) ("To

constitute a criminal act, there must, as a general rule, be a

criminal intent").

    Thus, we begin with the Commonwealth's burden to establish

a defendant's criminal intent.    As described in the 1844 Report,

the offense of interference with a police officer required the

Commonwealth to prove that a defendant's conduct was "wilful[]."

Noah Webster's An American Dictionary of the English Language,

published in 1828, defines "willful" as "[g]overned by the will

without yielding to reason; obstinate; stubborn; perverse;

inflexible; as a willful man."    "Willful," as used in modern

times, means "intentional without making reference to any evil

intent" (quotation and citation omitted).     Commonwealth v. Luna,

418 Mass. 749, 753 (1994).    See Commonwealth v. Brennan, 481

Mass. 146, 154 (2018) ("willful" requires intentional conduct,

not accidental).     Black's Law Dictionary defines "willful" as

"[v]oluntary and intentional, but not necessarily malicious."

Black's Law Dictionary 1834 (10th ed. 2014).

    Accordingly, to convict a defendant of interference with a

police officer, the Commonwealth must prove that the defendant
                                                                  23


intended his or her conduct, and intended "the harmful

consequences of the conduct -- that is, the interference with,

obstruction, or hindrance."   See Commonwealth v. Joyce, 84 Mass.

App. Ct. 574, 578 (2013) (interpreting willful interference with

firefighter statute to require intent to interfere).    After all,

without an intent element, it would be a violation of the law

"to stand near a police officer and persistently attempt to

engage the officer in conversation while the officer is

directing traffic at a busy intersection."    Houston v. Hill, 482

U.S. 451, 479 (1987).   See Cocroft v. Smith, 95 F. Supp. 3d 119,

126 (D. Mass. 2015) (observing that "if Massachusetts were to

recognize the common-law offense of obstructing a police officer

in the performance of his duty, a conviction would require proof

that the alleged violator acted with specific intent to

intimidate, hinder or interrupt the officer").

    With respect to the conduct that is prohibited by the

common-law crime of interference with a police officer, the

nature of the offense is shaped, in large part, by the common-

law restriction against the use of interference with a police

officer to criminalize the free exercise of rights "guarantied

or granted by the constitution or laws."     See § 18 of chapter 29

of the 1844 Report.

    For guidance, we turn to case law from other jurisdictions

involving constitutional challenges to statutes or ordinances
                                                                     24


that prohibit interference with a police officer.     In Hill, the

United States Supreme Court considered an overbreadth challenge

to a city ordinance providing that "[i]t shall be unlawful for

any person to assault, strike or in any manner oppose, molest,

abuse or interrupt any policeman in the execution of his duty"

(citation omitted).    Hill, 482 U.S. at 455.   The "assault" and

"strike" portions of the ordinance were preempted by provisions

of the Texas Penal Code, leaving only that portion of the

ordinance making it unlawful for "any person to . . . in any

manner oppose, molest, abuse or interrupt any policeman in the

execution of his duty" (citation omitted).      Id. at 461.   This

remaining portion was overbroad, because it prohibited a

"substantial amount of constitutionally protected conduct," such

as verbally interrupting a police officer while the officer was

on duty.   Id. at 458, 462 & n.11.   In striking down the

ordinance, the Court noted that the First Amendment to the

United States Constitution "protects a significant amount of

verbal criticism and challenge directed at police officers."

Id. at 461.   The Court commented, "The freedom of individuals

verbally to oppose or challenge police action without thereby

risking arrest is one of the principal characteristics by which

we distinguish a free nation from a police state."     Id. at 462-

463.

       The Court recognized that the ordinance furthered the
                                                                      25


government's legitimate interest in maintaining public order.

Id. at 464.    It is constitutionally permissible to prohibit

individuals from physically obstructing a police officer.       Id.

at 462 n.11.    It also is constitutionally permissible to

prohibit an individual from obstructing a police officer through

the use of "threats of violence"9 against that officer (so-called

"fighting words").    Id. at 463 n.12.   The police do not,

however, have unfettered discretion to arrest someone for speech

that annoys or offends.    Id. at 465.   See Duran v. Douglas, 904

F.2d 1372, 1378 (9th Cir. 1990) ("expression of disapproval

toward a police officer . . . [falls] squarely within the

protective umbrella of the First Amendment").

     The Supreme Court of Minnesota nonetheless has rejected an

overbreadth challenge to Minnesota's statute prohibiting

interference with a peace officer.    See State v. Krawsky, 426

N.W.2d 875, 876 (Minn. 1988).    That statute provided, in

relevant part, "Whoever intentionally obstructs, hinders or

prevents the lawful execution of any legal process, civil or

criminal, or . . . interferes with a peace officer while the

officer is engaged in the performance of official duties . . .

may be sentenced . . . ."    Minn. Stat. § 609.50 (1986).     The

court distinguished Hill, 482 U.S. 451, and thus was able to




     9   See § 17 of chapter 29 of the 1844 Report.
                                                                    26


uphold the statute, by interpreting § 609.50 as "directed solely

at physical acts, whereas the ordinance in [Hill] was

significantly broader, prohibiting verbal criticism directed at

police."   Id. at 876-877.    In addition, the physical acts

prohibited by the Minnesota statute involved "physically

obstructing or interfering with an officer, whereas under the

ordinance in [Hill] one could be punished for merely

'interrupting' an officer in the line of duty."     Id. at 877.

Consistent with Hill, the Minnesota court also stated that

"[t]he statute may be used to punish 'fighting words' or any

other words that by themselves have the effect of physically

obstructing or interfering with a police officer in the

performance of his duties."    Id.   See State v. Leigh, 278 N.C.

243, 246 (1971) (speech alone cannot be punished as opposition

of police officer); State v. Williams, 171 Wash. 2d 474, 485-486

(2011) (crime of obstructing officer requires some conduct in

addition to pure speech).

    The principle underlying the Massachusetts common-law

restriction against criminalizing "the legal exercise of any

authority, power, function or right, guarantied or granted by

the constitution or laws," see § 18 of chapter 29 of the 1844

Report, can be distilled to the premise that "a person does not

violate the law by doing what he has a lawful right to do,

regardless of whether it obstructs or hinders a police officer."
                                                                   27


State v. Jarvis, 172 W. Va. 706, 709 (1983).     Accordingly, in

Massachusetts, the offense of interference with a police officer

requires proof of a physical act that obstructs or hinders a

police officer in the lawful performance of his or her duty.       It

also may include a "threat[] of violence against" the officer,

see § 17 of chapter 29 of the 1844 Report, which reasonably

would have the effect of obstructing or interfering with the

officer in the performance of a lawful duty.10

     Although each case turns on its own facts, because there

could be endless scenarios surrounding police interactions with

citizens where an officer might contemplate charging this

offense, we illustrate the type of conduct prohibited by the

common-law crime of interference with a police officer by

examining a civil rights action that was commenced in a Federal

District Court.   In that case, the plaintiff owned property in

Falmouth that included an easement deeded to an electrical

utility.   Wilber v. Curtis, 872 F.3d 15, 17 (1st Cir. 2017).

Pursuant to the easement, the utility was entitled to enter the

plaintiff's property to trim, cut, or remove trees and


     10See, e.g., Gay v. State, 179 Ga. App. 430, 431-432 (1986)
(evidence of obstruction sufficient where defendant threatened
to get his shotgun and "blow holes in the patrol car" of officer
who had called for truck to tow defendant's vehicle); State v.
Mattila, 77 Or. App. 219, 221, 223 (1986) (obstructing
governmental function established by evidence that defendant
asked his mother, in loud voice, whether he could shoot deputies
who had approached house to serve eviction papers).
                                                                       28


underbrush that endangered its power lines.      Id.   As a result of

an earlier confrontation with the plaintiff, a tree service

contracted by the utility to clear vegetation entered the

easement, accompanied by two Barnstable police officers.        Id.

When he saw the work crew, the plaintiff went into "a high state

of agitation," verbally protested, and strung yellow caution

tape and plastic rope across the easement.      Id. at 18.   The

police officers and utility workers removed some of the tape and

rope, causing further delays.     Id.   The officers told the

plaintiff that the work would not stop absent a court order, and

warned him to cease interfering with the project.      Id.   Despite

the warning, the plaintiff sat down on a tree stump and refused

to move.   Id.   The officers then arrested him for disorderly

conduct.   Id.

    The plaintiff later filed a complaint asserting claims

against the officers for civil rights violations under 42 U.S.C.

§ 1983 and the Massachusetts Civil Rights Act, false arrest,

false imprisonment, and intentional infliction of emotional

distress, and other claims.     Id.   On appeal from a magistrate

judge's decision, the United States Court of Appeals for the

First Circuit upheld the allowance of a motion for summary

judgment by the police on qualified immunity grounds, and

concluded that the officers had had probable cause to arrest the

plaintiff for the Massachusetts common-law offense of
                                                                    29


interference with a police officer.     Id. at 21-22.   The court

reasoned that the officers had been engaged in the performance

of the lawful duty of keeping citizens away from a dangerous

work area, and the plaintiff had obstructed or hindered them by

blocking the work crew.     Id.

    Accordingly, the offense of interference with a police

officer requires the Commonwealth to prove four elements beyond

a reasonable doubt.   First, the Commonwealth must show that the

officer was engaged in the lawful performance of a duty.

Second, the Commonwealth must establish that the defendant

physically performed an act that obstructed or hindered a police

officer in the lawful performance of that duty.    The act may

include a "threat[] of violence against" the officer, see § 17

of chapter 29 of the 1844 Report, which reasonably would have

the effect of obstructing or hindering the officer in the

performance of that duty.     Third, the Commonwealth must

demonstrate that the defendant was aware that the police officer

was engaged in the performance of his or her duties.      Fourth,

the Commonwealth must prove that the defendant intended to

obstruct or hinder the officer in the performance of that duty.

    c.   Sufficiency of the evidence.    The defendant challenges

on two grounds the sufficiency of the evidence that his refusal

to turn over his firearms interfered with the police officers

who had come to his house to collect them.    First, the defendant
                                                                  30


disputes whether the officers were acting within the lawful

performance of a duty when they confiscated his firearms and

ammunition.   According to the defendant, G. L. c. 140, §§ 129D

and 131 (f), authorize the police to serve an individual with

notice of a firearm license suspension or revocation.    Under the

defendant's interpretation, the individual would be permitted to

maintain possession of his or her firearms and ammunition

pending judicial review of the decision to suspend or revoke.

The defendant maintains that "[a]nything that occurred after the

[notification of license suspension or revocation] could not be

considered interference with the lawful performance of [the

officers'] duty."   Second, the defendant contends that his

refusal to surrender his firearms and ammunition was not

sufficient, without more, to support a conviction of common-law

interference with a police officer.

    The Commonwealth argues that the jury were entitled to find

that "the officers' duty encompassed not only the serving of the

notice [of license suspension or revocation] but also the

seizing of the weapons -- and that the defendant interfered with

that duty."

    In Massachusetts, local police departments are responsible

for the issuance of firearms licenses to individuals who reside

or have a place of business within the jurisdiction.    G. L.

c. 140, §§ 121, 129B (1).   As relevant to license suspension,
                                                                   31


G. L. c. 140, § 131 (f), provides, "All licenses to carry

firearms shall be designated [c]lass A or [c]lass B, and the

issuance and possession of any such license shall be subject to

the following conditions and restrictions:"

    "A license issued under this section shall be revoked or
    suspended by the licensing authority, or his designee, upon
    the occurrence of any event that would have disqualified
    the holder from being issued such license or from having
    such a license renewed. A license may be revoked or
    suspended by the licensing authority if it appears that the
    holder is no longer a suitable person to possess such
    license. Any revocation or suspension of a license shall
    be in writing and shall state the reasons therefor."

    A license holder who is aggrieved by a suspension or

revocation may seek judicial review in the District Court within

ninety days of the revocation or suspension.    Id.   Upon the

revocation or suspension of a class A or class B license, "the

licensing authority shall take possession of such license and

the person whose license is so revoked or suspended shall take

all actions required under the provisions of [§] 129D."     Id.

General Laws c. 140, § 131 (f), further provides that "[n]o

appeal or post-judgment motion shall operate to stay such

revocation or suspension."   Id.   See Firearms Records Bureau v.

Simkin, 466 Mass. 168, 172-173 (2013).     See also Hightower v.

Boston, 693 F.3d 61, 67 (1st Cir. 2012).

    General Laws c. 140, § 129D, on the other hand, contains

provisions that on their face may appear inconsistent with the

requirements of c. 140, § 131 (f).   General Laws c. 140, § 129D,
                                                                   32


provides that a firearm license holder "[u]pon revocation . . .

[or] suspension . . . shall without delay deliver or surrender

to the licensing authority where the person resides all

firearms, rifles, shotguns and machine guns and ammunition which

the person then possesses unless an appeal of the revocation or

suspension is pending."   Thereafter, the licensing authority is

responsible for properly storing and (potentially) disposing of

the firearms.   Id.   See Andrade v. Somerville, 92 Mass. App. Ct.

425, 428 (2017).

    As the defendant points out, there indeed is a tension

between these statutory provisions.   General Laws c. 140,

§ 131 (f), requires the police to take possession of the revoked

or suspended firearms license, and states, "No appeal or post-

judgment motion shall operate to stay such revocation or

suspension."    General Laws c. 140, § 129D, on the other hand,

requires a license holder immediately to surrender all firearms

and ammunition to the police "unless an appeal of the revocation

or suspension is pending."

    "Where possible, we seek to harmonize the provisions of a

statute with related provisions that are part of the same

statutory scheme 'so as to give effect to the expressed intent

of the Legislature'" (citation omitted).    Chin v. Merriot, 470

Mass. 527, 537 (2015).    Massachusetts courts consistently have

noted that the underlying goal of firearms control legislation
                                                                  33


"is to limit access to deadly weapons by irresponsible persons."

Simkin, 466 Mass. at 176, quoting Ruggiero v. Police Comm'r of

Boston, 18 Mass. App. Ct. 256, 258 (1984).    This purpose is

effectuated by the provision that "[n]o appeal or post-judgment

motion shall operate to stay" a revocation or suspension, and

the requirement that the license holder surrender his or her

firearms and ammunition "without delay."     See G. L. c. 140,

§§ 129D, 131 (f).

    The two statutes may be harmonized so that they form a

coherent and consistent whole and the phrase "unless an

appeal . . . is pending" in G. L. c. 140, § 129D, is understood

consistent with legislative intent and constitutional

protections.   See Commonwealth v. Harris, 443 Mass. 714, 725

(2005), quoting LaBranche v. A.J. Lane & Co., 404 Mass. 725, 728

(1989) ("[W]e should endeavor to harmonize the two statutes so

that the policies underlying both may be honored.    Implied

repeal of a statute is disfavored, and we should not impliedly

repeal a portion of [the statute] unless it 'is so repugnant to,

and inconsistent with, the later enactment . . . that both

cannot stand'").    See also Ciani v. MacGrath, 481 Mass. 174, 179

(2019) (court strives to give effect to each word of statute so

no part will be inoperative).

    To harmonize the provisions of G. L. c. 140, §§ 129D

and 131 (f), and give effect to each word, we conclude that the
                                                                  34


provisions afford a licensing authority two options when seeking

to implement the suspension or revocation of a license for an

individual deemed potentially "unsuitable."   See G. L. c. 140,

§ 131 (d).

     First, the licensing authority has discretion to provide

notice to an individual believed no longer to be suitable to

possess a license, and to seek immediate surrender of that

individual's license, firearms, and ammunition.11   The failure to

surrender firearms "without delay," in these circumstances,

could subject the license holder to criminal sanctions pursuant

to G. L. c. 269, § 10 (i).12   Thus, a licensing authority may


     11A license to possess a firearm "shall be revoked or
suspended by the licensing authority . . . upon the occurrence
of any event that would have disqualified the holder from being
issued such license or from having such license renewed." G. L.
c. 140, § 131 (f). See District of Columbia v. Heller, 554 U.S.
570, 626 (2008) (right to bear arms is not unlimited; individual
may be statutorily disqualified from holding firearms license,
on grounds of unsuitability, without violation of Second
Amendment); Hightower, 693 F.3d at 73-76 ("unsuitable"
individual, such as felon or one who is mentally ill, is not
denied due process by revocation of firearms license).

     12Here, the defendant refused to allow police to enter his
home. A District Court judge properly found that the officers
were required to obtain a search warrant prior to seizing the
firearms, because the Commonwealth was unable to establish
consent or another exception to the warrant requirement. See
Commonwealth v. Rogers, 444 Mass. 234, 236-237 (2005). In such
circumstances, if they deem it necessary, police may secure the
premises from the outside while they await the issuance of a
search warrant. See Commonwealth v. Yesilciman, 406 Mass. 736,
743 (1990). See also Commonwealth v. Blake, 413 Mass. 823, 829
(1992) (securing dwelling, on basis of probable cause to search
for evidence of crime, includes ability to prevent anyone from
                                                                  35


seek immediate surrender, prior to a hearing, of firearms in

such cases.   See G. L. c. 140, §§ 129D, 131 (f).

    Although the statute is less than clear, the Legislature

could not have intended to permit firearms to remain in the

possession of dangerous individuals during a ninety-day appeal

period, and then during the possibly lengthy duration of any

subsequent appeal.   See United States v. Booker, 644 F.3d 12, 25

(1st Cir. 2011), cert. denied, 565 U.S. 1204 (2012), quoting

United States v. Hayes, 555 U.S. 415, 427 (2009) ("Statistics

bear out the [United States] Supreme Court's observation that

'[f]irearms and domestic strife are a potentially deadly

combination nationwide'"); Chief of Police of Worcester v.

Holden, 470 Mass. 845, 864 (2015).   See also United States v.

Reese, 627 F.3d 792, 800-805 (10th Cir. 2010), cert. denied, 563

U.S. 990 (2011) (applying intermediate scrutiny and upholding

statute that precludes those subject to abuse prevention order

from having firearms); United States v. Skoien, 614 F.3d 638,

641-645 (7th Cir. 2010), cert. denied, 562 U.S. 1303 (2011)

(noting Court's holding in Heller "means that some categorical

disqualifications are permissible:   Congress is not limited to

case-by-case exclusions of persons who have been shown to be

untrustworthy with weapons, nor need these limits be established



entering dwelling and potentially accessing evidence to be
seized).
                                                                       36


by evidence presented in court," and upholding revocation of

license, using intermediate scrutiny, for one convicted of

"misdemeanor crime of domestic violence").

     Second, the licensing authority may, in the exercise of its

discretion, notify the license holder of a revocation or

suspension without seeking immediate surrender of any firearms.

In such an instance, the commencing of an appeal would stay the

obligation to surrender firearms "without delay."    See

Hightower, 693 F.3d at 68-69.

     Here, the defendant received written, in-hand service of

the suspension of his class A license.   The suspension was based

upon a report filed by the Department of Children and Families

alleging that the defendant had injured his wife and that their

son was at home at the time of the alleged incident.       Where the

police officers demanded that the defendant surrender his

firearms because he was no longer believed to be a suitable

person, the defendant thereupon was required immediately to

surrender his license, firearms, and ammunition.13   Thus, the


     13The defendant argues that the failure to provide a "safe
harbor" period for the surrender of firearms violated his
constitutional right to bear arms as guaranteed by the Second
Amendment, and right to the due process of law. We disagree.
The United States Supreme Court has explained that "the right
secured by the Second Amendment is not unlimited." Heller, 554
U.S. at 626. Accord McDonald v. Chicago, 561 U.S. 742, 786
(2010). Thus, it "is not 'a right to keep and carry any weapon
whatsoever in any manner whatsoever and for whatever purpose.'"
McDonald, supra, quoting Heller, supra. The Supreme Court has
                                                                     37


jury were entitled to find that the police were acting in the

lawful performance of their duties when they demanded that the

defendant surrender firearms he was no longer deemed suitable to

possess.

    Nonetheless, although the defendant's refusal to surrender

his firearms and ammunition may have violated G. L. c. 269,

§ 10 (i), his noncompliance with the demand that he surrender

his firearms cannot form the basis of a charge of common-law

interference with a police officers.     The jury were entitled to

find, in the light most favorable to the Commonwealth, that the

defendant was upset and argumentative.    He insisted that he

would not comply with the police order, repeatedly demanded to

contact his lawyer, and told his wife not to allow the police to

enter their home.   The Commonwealth did not, however, establish

that the defendant physically obstructed or hindered the officer

in the performance of a lawful duty.     Moreover, the defendant's




stated that "prohibitions on the possession of firearms" by
certain classes of people, including "felons and the mentally
ill," are among the nonexhaustive "list" of "presumptively
lawful" regulations a State may adopt. Heller, supra at 626-627
& n.26. Here, the police suspended the defendant's license to
carry a firearm due to a report of spousal abuse. In light of
concomitant safety concerns, the police were entitled to take
affirmative steps to avert potential harm. See Hightower, 693
F.3d at 84 ("unsuitable" license holder not deprived of due
process by absence of predeprivation hearing). After the
surrender of his firearms, the defendant had the opportunity to
seek judicial review within ninety days of the suspension.
G. L. c. 140, § 131 (f).
                                                                  38


protestations did not rise to the level of threats of violence

against a police officer, which reasonably would have the effect

of obstructing or interfering with the police in the performance

of a lawful duty.

    Accordingly, the evidence was insufficient to sustain the

conviction of interference with a police officer.

    3.    Conclusion.   The judgment of conviction of interference

with a police officer is vacated and set aside.   The matter is

remanded to the District Court for entry of a judgment of not

guilty.

                                    So ordered.
                   Appendix A.


Cases charging interference with a police officer


        Year Charged     Number of Charges
            1977                  1
            1981                  1
            1982                  2
            1985                  1
            1986                  1
            1987                  3
            1988                  3
            1989                  4
            1990                  4
            1991                  2
            1992                  7
            1993                  8
            1994                 27
            1995                 35
            1996                 30
            1997                 38
            1998                 25
            1999                 37
            2000                 60
            2001                 42
            2002                 55
            2003                 42
            2004                 44
            2005                 53
            2006                 53
            2007                 59
            2008                 53
            2009                 69
            2010                 66
            2011                128
            2012                 99
            2013                164
            2014                236
            2015                248
            2016                285
            2017                280
            2018                335
                 Appendix B.


Cases where interfering with a police officer
       was the highest offense charged


      Year Charged      Number of Charges
          2002                  12
          2003                  11
          2004                  14
          2005                  11
          2006                  13
          2007                  13
          2008                  10
          2009                  12
          2010                  18
          2011                  9
          2012                  13
          2013                  11
          2014                  --
          2015                  --
          2016                  --
          2017                  --
          2018                  --
