
USCA1 Opinion

	




                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                 ____________________          No. 92-1990                                     JOHN VEIGA,                                Plaintiff, Appellant,                                          v.                                     JOHN MCGEE,                                 Defendant, Appellee.                                 ____________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                          FOR THE DISTRICT OF MASSACHUSETTS                       [Hon. Mark L. Wolf, U.S. District Judge]                                           ___________________                                 ____________________                                        Before                             Torruella, Selya and Stahl,                                   Circuit Judges.                                   ______________                                _____________________               Deval L. Patrick, with whom Michael D. Ricciuti, Reginal  C.               ________________            ___________________  ___________          Lindsay, and Hill & Barlow, were on brief for appellant.          _______      _____________               John P. Roache,  with whom  Hogan, Roache &  Malone, was  on               ______________              _______________________          brief for appellee.                                 ____________________                                    June 22, 1994                                 ____________________                    TORRUELLA, Circuit  Judge.  This appeal  requires us to                               ______________          determine the meaning  of the  term "disorderly" as  used in  the          Massachusetts   Alcoholism   Treatment  and   Rehabilitation  Act          ("Chapter 111B"), generally known  as the Protective Custody Law,          Mass. Gen.  L. ch. 111B,    11 et seq., and  whether the district                                         _______          court  appropriately charged  the  jury as  to  the standard  for          determining  if the  conduct of  appellant John  Veiga ("Veiga"),          during  the early morning hours  of December 6,  1987, provided a          basis  for police  officers reasonably  to conclude  that he  was          "incapacitated" within the meaning of that statute.                                      BACKGROUND                                      BACKGROUND                                      __________                    At  approximately  2:00  a.m.  on  December  6,   1987,          appellant  John Veiga,  a 23-year-old  medical student  at Boston          University  School  of  Medicine,  was  with  a  friend,  Jessica          Goldhirsch ("Goldhirsch"), in the  front seat of Goldhirsch's car          when Officers John McGee  and David Johnson, who were  on routine          patrol,  drove by and noticed the car.   The car was parked a few          feet behind several  stores in an otherwise  deserted parking lot          near the corner of Dudley and Belden streets in Boston.  Near the          parking lot were a few occupied homes and apartment buildings.                    Upon  noticing the  car,  Officer  Johnson  pulled  the          police wagon he was  driving into the parking lot and  turned the          "take-down" lights (a set of bright lights)  on Goldhirsch's car.          Officer  McGee then  alighted  from the  vehicle, approached  the          passenger side of Goldhirsch's car with a lighted flashlight, and          shined the light into the car.  He proceeded to inquire as to the                                         -2-          ownership of the car.  Goldhirsch, who had driven the  car to the          parking  lot and was sitting  in the driver's  seat, produced her          license and the registration, while Veiga remained seated quietly          in the passenger seat of Goldhirsch's car.                    After Officer McGee determined that Goldhirsch's papers          were in order and gave her back her license and registration, the          officer walked  over to the passenger's side of the car and asked          Veiga  for identification.  Veiga responded by asking why Officer          McGee wanted to know his name.  According to the police officers,          Veiga's response was  loud and boisterous.   Officer McGee  again          asked  Veiga to show him  some identification.   Veiga opened the          car  door,  got  out,  and  said  he  would  not  give  McGee any          information.   Officer McGee  testified that  he asked Veiga  six          more   times  by   saying  "Sir,   I  just   want  to   see  some          identification.   I  just want  to know who  you are,  why you're          here," and Veiga  responded similarly  by asking  loudly why  the          police were asking him questions, and what he had  done wrong. At          trial, the officers testified that Veiga was "ranting and raving"          and  protesting that  the  police had  no right  to  ask him  any          questions.  This entire colloquy lasted four or five minutes.1                    Eventually,  Officers  McGee  and   Johnson  handcuffed          Veiga, and as  they were  doing this,  informed him  that he  was                                        ____________________          1  At trial, Officer Johnson admitted that Veiga was not profane,          that he did  not call the officers names, and  that McGee did not          have to  raise his voice to  be heard over Veiga.   Officer McGee          also admitted that Veiga was rational and coherent.                                         -3-          being  placed in protective custody.2   They then  led Veiga into          the  police wagon and  drove him to  the station.   Veiga did not          resist being handcuffed or being led into the wagon.                    The officers maintain that during their  encounter with          Veiga, he was unsteady on his feet, gesturing with his arms, that          his  speech was  slurred  and that  he  was emitting  an odor  of          alcohol from his person and  his breath.3  At the  station, Veiga          denied that he  had been drinking and said that  the officers had          no reason to take him to the station and no reason to ask him who          he was and why he was in the parking lot.                    At the station, Officer McGee spoke with Goldhirsch and          informed her  that the  police were going  to hold  Veiga at  the          station.   Veiga was  placed in  a cell  with another person  and          released at approximately 8:OO o'clock that morning.                    Veiga subsequently brought this action against Officers          McGee and Johnson, and  against the City of Boston  (the "City").          In  his complaint, Veiga  alleged that the  officers violated his          rights  under the  United States  Constitution and  state law  by                                        ____________________          2   At trial, Officers McGee and  Johnson both admitted that they          did  not  suspect  either Goldhirsch  or  Veiga  of any  specific          criminal activity that night.          3    Whether  the police  officers  had  a  reasonable basis  for          concluding  that Veiga  was  intoxicated was  a highly  contested          issue  at trial.   Veiga  contends  that he  did not  consume any          alcoholic  beverages between  the evening of  December 5  and the          early  morning   hours  of  December  6.    The  record  contains          substantial evidence that while at the medical school on December          5, Veiga studied histology and dissected a cadaver and that these          activities  brought  him  into contact  with  several  chemicals,          including acetone, which could  have accounted for odors emitting          from his body.                                         -4-          seizing  him without  justification.    Specifically, Veiga  sued          Officers  McGee and Johnson under 42 U.S.C.   1983 for violations          of his federal civil rights, including his First  Amendment right          to freedom of  expression and  his Fourth Amendment  right to  be          free  from  unlawful  seizure.   Veiga  also  brought  claims for          battery; for false imprisonment;  and for infliction of emotional          distress.   Veiga  also sued  the City  for negligence  under the          Massachusetts Tort Claims Act, Mass. Gen. L. ch. 258.4                    At  trial, both  Officers Mcgee  and Johnson  testified          that they told Veiga he could take a breathalyzer examination and          that if he passed the  test, he would be released.   According to          Officer  Johnson, Veiga replied that  he was not  drunk, that the          police  were going  to have to  prove he  was drunk,  and that he          would  not take  any test.   The  officers further  maintain that          Veiga  refused to sign the  protective custody form  in the space          labeled  "I was  informed of  my right  to a  breathalyzer test."          Veiga testified that he was never informed of his right to take a          breathalyzer test.5                                        ____________________          4  Veiga also raised  other civil rights claims against the  City          based on  various alleged customs,  policies and practices.   The          Court  sua  sponte severed  these  claims for  a  separate trial.                 ___________          These claims are not part of this appeal.          5  Chapter 111B,   8 provides in part:                      Any  person assisted by  a police officer                      to a police station shall have the right,                      and be informed in writing of said right,                      to   request   and   be  administered   a                      breathalyzer test.  . . .   If any person                      who is administered a  breathalyzer test,                      under  this  section,  and evidence  from                      said test indicates  that the  percentage                                         -5-                    The jury specifically found that the officers failed to          inform  Veiga of the reasons he was regarded as incapacitated and          of   what  he would  have to  do to  be released  from protective          custody.                    On  all charges, however,  the jury  found in  favor of          Officers  McGee and  Johnson  and  the  City  of  Boston.6    The                                        ____________________                      of alcohol in his blood is more than five                      one   hundredths   there   shall  be   no                      presumption  made  based  solely  on  the                      breathalyzer  test.   In such  instance a                      reasonable test of coordination or speech                      coherency   must   be   administered   to                      determine if said person  is intoxicated.                      Only  when such  test of  coordination or                      speech coherency indicates said person is                      intoxicated   shall   he  be   placed  in                      protective custody at a police station or                      transferred to a facility.          6  The jury answered the special verdict form as follows:                       (1)  Was  John  Veiga put  in  protective                      custody  without  a  reasonable basis  to                      believe he was  incapacitated? "No";  (2)                      Has John  Veiga proven that  the exercise                      of  his  right  not  to  answer questions                      and/or  his right to oppose verbally, the                      actions of  the police was  a substantial                      factor in  the decision  to place  him in                      protective  custody?  "No";  (3)   Was  a                      battery  committed  on John  Veiga? "No";                      (4)  Was  excessive  force  used  on John                      Veiga?  "No";  (5)  Did  either  or  both                      defendants intentionally cause John Veiga                      emotional distress? "No"; (6) Did  one or                      more police  officers acting individually                      or  jointly,   negligently  deprive  John                      Veiga of his right to (a) be administered                      a   breathalyzer   test?  "No";   (b)  be                      released  from  protective  custody  when                      there was no longer a reasonable basis to                      believe   he  was   incapacitated?  "No";                      (7)(a)  Did John  McGee or  David Johnson                      fail to inform John Veiga of the  reasons                      he was regarded as incapacitated and what                                         -6-          district court subsequently denied Veiga's "Motion For a Judgment          as a Matter of Law or, in  the Alternative, for a New Trial."  On          appeal, Veiga contends  that he  is entitled to  judgment in  his          favor.  Alternatively,  he contends that  errors in the  district          court's instructions to the jury entitle him to a new trial.                              THE PROTECTIVE CUSTODY LAW                              THE PROTECTIVE CUSTODY LAW                              __________________________                    Under Chapter  111B, "[a]ny person who is incapacitated          may be assisted  by a police officer with or  without his consent          to his residence,  to a facility or to a  police station."  Mass.          Gen. L. ch.  111B,   8.    In its  definitional section, the  law          defines  "incapacitated"  as  "the  condition  of an  intoxicated          person  who, by reason of the  consumption of intoxicating liquor          is  (1) unconscious, (2) in need of medical attention, (3) likely          to  suffer  or cause  physical harm  or  damage property,  or (4)          disorderly."  Mass. Gen. L. ch.  111B,   3.   Thus, under Chapter          111B,  in order  to take  a person  into protective  custody, the          police  must  believe that  he  is  both  intoxicated and  either                                              ____              ___          unconscious, in  need of medical  attention, likely to  suffer or          cause physical harm or damage, or disorderly.                    Veiga   maintains  that  Officers   McGee  and  Johnson          unlawfully  detained him  in  violation of  the First  and Fourth          Amendments  to the United States  Constitution.  On appeal, Veiga                                        ____________________                      he would  have to do to  be released from                      protective custody? "Yes"; and  (7)(b) If                      you  answered  Question  7(a) "Yes,"  did                      John McGee or David Johnson intentionally                      fail to give John Veiga this information?                      "No."                                         -7-          contends that the district  court erred by improperly instructing          the jury as to the meaning of the term "disorderly", as that term          is  used in  the Protective Custody  Law.   See infra p.  14.  He                                                      ___ _____          argues that the district court's erroneous definition of the term          "disorderly"  permitted the  jury to  approve Veiga's  seizure by          Officers McGee and Johnson  simply because he objected loudly  to          their  questioning  of him.    He contends  that  this definition          represents  a departure  from  Massachusetts  law which  excludes          speech   and   expressive   conduct  from   the   definition   of          "disorderly,"   and  that   the   definition   is,   furthermore,          unconstitutional as violative of the First Amendment.                    We  decide  this case  on  Fourth  Amendment and  state          statutory grounds rather  than on First Amendment principles.  In          interpreting  Chapter 111B  we  defer to  state court  decisions,          recognizing that  "[t]he Supreme Judicial Court,  not this court,          is the authoritative interpreter of state  statutes."  Sabetti v.                                                                 _______          DiPaolo, 16 F.3d 16, 19 (1st Cir. 1994); Rundlett  v. Oliver, 607          _______                                  ________     ______          F.2d 495, 500 (1st Cir. 1979).             A.  Meaning of the term "disorderly" under Massachusetts law             A.  Meaning of the term "disorderly" under Massachusetts law                    Well-established  principles of  statutory construction          dictate that when  a statute  includes a term  well-known to  the          common law,  courts should presume that  the legislature intended          the  term  to be  interpreted  as  in  the common  law.    "[T]he          interpretation  of well-defined  words .  . .  in the  common law          carries over to statutes dealing with the same or similar subject          matter.  . . .   Furthermore, common-law meanings  are assumed to                                         -8-          apply  even in  statutes dealing with  new and  different subject          matter, to the extent that they appear fitting and in the absence          of  evidence  to  indicate  contrary  meaning."    2B N.  Singer,          Sutherland Statutory Construction    50.03 at 103 (5th ed. 1992);          _________________________________          see also  Mass. Gen. L. ch. 4,   6 ("[w]ords and phrases shall be          ________          construed  according to  the  common and  approved  usage of  the          language;  but technical words and phrases and such others as may          have  acquired a peculiar and appropriate meaning in law shall be          construed and understood according to such meaning").                    The  term  "disorderly"  is  not  defined  anywhere  in          Chapter 111B.   Nevertheless,  the term  "disorderly" has  a long          common law heritage.  See Alegata v. Commonwealth, 353 Mass. 287,                                ___ _______    ____________          302,  231  N.E.2d 201,  210-11  (1967)  (the statute  prohibiting          disorderly conduct "has had a long history, dating from the early          17th  century" and  "recent case  law and legal  scholarship have          narrowed the scope  of the  prohibition").  By  not defining  the          term in  the  statute,  "the  Legislature  is  presumed  to  have          intended to  incorporate the common law definition . . . at least          insofar as it  is not inconsistent with the terms  or the purpose          of the statute."  Commonwealth v. Ricardo, 26 Mass. App. Ct. 345,                            ____________    _______          356,  526  N.E.2d  1340,  1347  (1988)  (internal  quotation  and          citations omitted).                    Massachusetts courts have defined the term "disorderly"          in other contexts.   In Alegata, 353 Mass. at  303, 231 N.E.2d at                                  _______          210-11, the Supreme Judicial Court of Massachusetts, interpreting          the  term "disorderly"  within the  meaning of  the Massachusetts                                         -9-          statute providing for criminal  punishment of disorderly persons,          Mass.  Gen. L. ch. 272,   53,  approved the following Model Penal          Code definition of the  offense of disorderly conduct for  use in          Massachusetts:                      A person is guilty of  disorderly conduct                      if,   with   purpose   to  cause   public                      inconvenience,  annoyance  or  alarm,  or                      recklessly creating a  risk thereof,  he:                      (a) engages in  fighting or  threatening,                      or in violent  or tumultuous behavior; or                      (b)    makes   unreasonable    noise   or                      offensively coarse  utterance, gesture or                      display, or addresses abusive language to                      any  person  present;  or  (c)  creates a                      hazardous    or    physically   offensive                      condition  by  any  act which  serves  no                      legitimate purpose of the actor.          Id.           ___                    In  Commonwealth  v. A  Juvenile,  368  Mass. 580,  334                        ____________     ___________          N.E.2d 617  (1975), the Supreme Judicial  Court of Massachusetts,          interpreting   the  same   statute,  significantly   limited  the          definition of  "disorderly" by  striking subsection (b)  from the          Model Penal  Code language imported  by Allegata into    53.  The                                                  ________          court did so because it found that the "portion of   53 which may          be  applied   to  'unreasonable  noise   or  offensively   coarse          utterance,  gesture or  display,  or .  . . [addressing]  abusive          language   to  any   person   present'"  was   unconstitutionally          overbroad.  A  Juvenile, 368  Mass. at  586, 334  N.E.2d at  622.                      ___________          Specifically, the  court  found subsection  (b)  constitutionally          untenable because it was "not sufficiently narrowly and precisely          drawn  to ensure that  it reach only that  speech which the state          has  a justifiable and  compelling interest in  regulating."  Id.                                                                        ___                                         -10-          After  striking  subsection (b),  the  court  concluded that  "as          reaching  to conduct (other than  expressive conduct), the  . . .          [remaining] provision is neither unconstitutionally overbroad nor          vague."  Id.  The court further stated:                   ___                      [I]n order to ensure that the statute  as                      limited not be susceptible of application                      to  conduct  which   is  expressive   and                      therefore   protected    by   the   First                      Amendment,   we   further  construe   the                      section   to    relate   exclusively   to                      activities   which   involve  no   lawful                      exercise of a First Amendment right.   In                      this  regard  the  intent  to  cause,  or                      reckless     disregard     of,     public                      inconvenience,  annoyance, or  alarm must                      be  assessed  in  terms  of  whether  the                      conduct was  engaged  in with  intent  to                      exercise  a  First  Amendment  right  and                      whether  the interest  to be  advanced is                      insignificant   in   comparison  to   the                      inconvenience,   annoyance,   or    alarm                      caused.          Id.  at   628  (citation  omitted);  see   also  Commonwealth  v.          ___                                  __________  ____________          Feigenbaum,  404  Mass. 471,  473,  536  N.E.2d 325,  327  (1989)          __________          (reaffirming  these principles);  Commonwealth  v. Richards,  369                                            ____________     ________          Mass.  443,  445,  446  n.2,  340  N.E.2d  892,  896  n.2  (1976)          (expressive conduct cannot be sanctioned as disorderly conduct).                    Appellees contend  that the definition  of "disorderly"          as used in non-penal  Chapter 111B is not the  same definition of          "disorderly"  applied  to the  criminal  statute,  Mass. Gen.  L.          ch. 272,    53, as enunciated  in A  Juvenile.   They argue  that                                            ___________          under  Chapter 111B, "disorderly" may include making unreasonable          noise late  at night  in a  residential neighborhood.   Moreover,          they contend that Veiga's reliance on the definition of the crime          of  disorderly  conduct as  narrowed  from the  Model  Penal Code                                         -11-          definition in  A Juvenile is misplaced because  Veiga was neither                         __________          arrested nor charged  with the crime of  disorderly conduct under          Mass.  Gen.  L.  ch.  272,    53.    Appellees'  argument  is not          persuasive for at least two reasons.                    First,  in the absence  of a statutory  definition of a          term, the understanding of  that term in an analogous  statute is          an  excellent  guide  to interpretation.    See,  e.g., Burno  v.                                                      ___   ____  _____          Commissioner of Correction, 399 Mass. 111, 120, 503 N.E.2d 16, 22          __________________________          (1987); Donnelly v. Contributory  Retirement Appeal Bd., 15 Mass.                  ________    ___________________________________          App.  19, 22,  443 N.E.2d  416, 418  (1982).   The fact  that one          statute is  formally classified  as penal,  whereas the  other is          not, does not  detract from the former's value as  a guide to the          latter, or vice versa,  so long as the two statutes are genuinely          analogous in substance and effect.   Cf. 2B Sutherland  Statutory                                               ___    _____________________          Construction, supra, at    51.03 ("Characterization of the object          ____________  _____          or  purpose is  more important  than characterization  of subject          matter  in  determining whether  different  statutes  are closely          enough  related  to justify  interpreting  one  in light  of  the          other.").                    The relationship between  the two statutes  we construe          in pari materia  today is a very close one. Chapter 111B replaced          __ ____ _______          prior  laws  which provided  for  criminal  punishment of  public          inebriants.7  In place of  punishment, Chapter 111B provides  for                                        ____________________          7  Section 18, Acts 1971, Ch. 1076, provides as follows:                      Any    existing     ordinance,    by-law,                      resolution  or  other  legislation  of  a                      county,     municipality     or     other                                         -12-          the treatment  and rehabilitation  of alcoholics and  evidences a          concern for the health and safety of persons incapacitated by the          effects  of  alcohol.8    The law  accomplishes  two  objectives.          First, Chapter  111B attempts to get  intoxicated individuals who          engage  in disorderly  conduct  off the  streets, protecting  the          public until they sober  up -- a goal previously  accomplished by          criminal statutes.  Second, Chapter 111B looks out for the health          and   safety  of   those  individuals,   attempting  to   protect          incapacitated  persons from  themselves.   Despite its  non-penal          objectives,  the  effect of  Chapter  111B  is, nevertheless,  to          deprive the allegedly incapacitated person of his or her liberty,                                        ____________________                      jurisdiction   within  the   commonwealth                      establishing   the   offense  of   public                      intoxication or any equivalent offense is                      hereby  repealed.  No  county, city, town                      or  other  political  subdivision of  the                      commonwealth   shall   adopt   any   law,                      ordinance,    by-law,    resolution    or                      regulation  having the force of law which                      provides  that   public  intoxication  or                      being   found   in   any   place   in  an                      intoxicated condition shall constitute an                      offense,  a violation  of the  subject of                      criminal or civil penalties  or sanctions                      of any  kind or in  any way  inconsistent                      with  the  provisions   of  chapter   one                      hundred and eleven B of the General Laws.          8  Chapter  111b,   7 provides for examination  by a physician if          there  is any  concern about  the  health or  immediate treatment          needs  of  an incapacitated  person  and section  4  contains the          following language:                      The   department    [of   Health]   shall                      coordinate  matters affecting  alcoholism                      in the commonwealth, shall  establish and                      conduct  a program  for the  treatment of                      intoxicated persons and  alcoholics . . .                      their  rehabilitation and  the prevention                      of alcoholism . . . .                                         -13-          by permitting detention at a police station.                      There  is  a  second reason  that  appellees'  argument          fails.    Were  we to  find  that  Chapter  111B's definition  of          "disorderly" does  not incorporate  a narrow definition  like the          definition established  by Massachusetts case  law, Chapter  111B          would be  unconstitutionally vague  because  "disorderly" is  not          otherwise  clearly  defined  by the  statute.    "It  is a  basic          principle  of due process that an enactment is void for vagueness          if its prohibitions are not clearly defined."  Grayned v. City of                                                         _______    _______          Rockford,  408  U.S.  104,  108  (1972).    "[I]f  arbitrary  and          ________          discriminatory enforcement is to  be prevented, laws must provide          explicit standards  for  those who  apply  them."   Id.   In  the                                                              ___          absence  of  clear legislative  intent,  we  will  not  adopt  an          interpretation of a statute that would render it constitutionally          suspect.   United States v.  Thompson, 452 F.2d  1333, 1337 (D.C.                     _____________     ________          Cir. 1971), cert. denied, 405 U.S. 998 (1972);  see also Alegata,                      ____________                        ________ _______          353  Mass.  at  290,  231  N.E.2d  at  203  (a "statute  must  be          construed,  if fairly  possible,  so as  to  avoid not  only  the          conclusion that it is unconstitutional but also grave doubts upon          that score") (citation and internal quotation omitted).                    For  the  foregoing  reasons,  we find  that  the  term          "disorderly"  should  be  interpreted   in  accordance  with  the          definition given  that  term by  the  Supreme Judicial  Court  of          Massachusetts in the case of A Juvenile and its progeny.                                       __________                    B.  Jury instructions                    B.  Jury instructions                    The district court  instructed the jury as to  the term                                         -14-          "disorderly" as follows:                      Whether a person is disorderly depends on                      his  conduct  and  the  time,  place  and                                              _________________                      manner of his speech . . .                      ____________________                                        . . .                        For the purpose of this  case, however,                      the law does not allow police officers to                      take  the content  of what was  said into                      account in deciding whether Mr. Veiga was                      disorderly.                        More   specifically,   in   this   case                      Mr. Veiga   was  engaged   in  disorderly                      conduct  if when  a person  causes public                      inconvenience,  annoyance   or  alarm  or                      acting  recklessly  to create  a  risk of                      public inconvenience,  annoyance or alarm                      he engaged  in  what is  called  multiple                      behavior.                        In  this   context  recklessness  means                      acting  with  a  conscious  disregard  of                      substantial  and  unjustifiable  risk  of                      public inconvenience, annoyance or alarm.                      Multiple    behavior    is    excessively                      unreasonable  annoyance  which creates  a                      public  nuisance.    This  would  include                                           ____________________                      excessively  unreasonable  noise late  at                      _________________________________________                      night  in  a residential  neighborhood so                      _________________________________________                      that people in the privacy of their homes                      _________________________________________                      are unable to avoid that noise.                      ______________________________                        You may  include all  of the  facts and                      circumstances of this case, including the                      reasons for any noise in deciding whether                      it was, among  other things,  excessively                      unreasonable.                                        . . .                        It  would be  unlawful  for the  police                      officers to detain Mr. Veiga for refusing                      to   answer   their   questions  or   for                      challenging them.   They could,  however,                      take into  account  his conduct  and  the                                                            ___                      manner  in which he expressed himself but                      _____________________________________                      not the  content of  what he said  or the                      language that he used in deciding whether                      he was incapacitated.                                         -15-          (Emphasis added).9                    The district  court correctly instructed the  jury that          "[i]t would be  unlawful for  the police officers  to detain  Mr.          Veiga  for refusing to answer  their questions or for challenging          them."  See Houston v. Hill, 482 U.S. 451, 461 (1987) ("the First                  ___ _______    ____          Amendment protects  a significant amount of  verbal criticism and          challenge directed at police  officers"); Norwell v.  Cincinnati,                                                    _______     __________          414  U.S.  14  (1973)  (per  curiam)  (reversing  conviction  for                                  ___________          disorderly  conduct where  defendant was  "loud and  boisterous,"          stating that a person "is not to be punished for nonprovocatively          voicing  his objection  to what  he obviously  felt was  a highly          questionable detention by a police officer").                      The  district  court's   definition  of   "disorderly,"          however,   would  permit  a   jury  to  find   that  persons  are          "disorderly"  based solely  on the  manner in which  they express          themselves.  This definition contravenes A Juvenile, in which the                                                   __________          Massachusetts  Supreme  Judicial  Court  expressly  excised  from          "disorderly" analysis  both "speech  and expressive conduct."   A                                                                          _          Juvenile, 368 Mass. at 593, 334 N.E.2d at 625.  After all, if the          ________          SJC thought that protected  speech uttered in a loud  voice could          lawfully be regulated, then  it would not have felt  compelled to          extricate  the   "mak[ing  of]   unreasonable  noise"   from  the          definition of disorderly.                    The  district  court's   definition  also   contravenes                                        ____________________          9  Following the jury instructions, counsel for Veiga objected to          the court's  definition of "disorderly"  properly preserving this          issue for appeal.                                         -16-          Massachusetts  court  interpretations  of  the  term  "tumultuous          behavior" of subsection (c) of the Model Penal Code definition of          "disorderly."  Massachusetts  courts have upheld convictions  for          disorderly conduct only where "defendants' conduct -- independent                                                     _______          of any speech or expressive conduct --" warranted the conviction.          Commonwealth v.  Carson, 411 N.E.2d  1337 (Mass. App.  Ct. 1980);          ____________     ______          see  also  Richards,  340  N.E.2d  at  896  ("evidence  that  the          ___  ____  ________          defendants  engaged   in  fighting  and  violent   or  tumultuous          behavior,  entirely apart  from any  speech of  theirs [warranted          submission  of disorderly  conduct complaints]  to the  jury with          instructions, inter alia,  that the speech of  the defendants was          not to be  considered as  evidence of guilt");  United States  v.                                                          _____________          Pasqualino, 768 F. Supp. 13 (D. Mass. 1991) (rejecting contention          __________          that person was "unruly and tumultuous" where arrest was grounded          solely  on  the  conclusion that  the  defendant  was  loud, and,          consequently,  that  he created  a disturbance).   In  any event,          Veiga's behavior  cannot conceivably be brought  within the SJC's          careful  definition of tumultuous  behavior as "involving riotous          commotion and excessively unreasonable  noise so as to constitute          a public nuisance."  A Juvenile, 334 N.E.2d at 628.                               __________                    Moreover,  by instructing  the  jury that  "disorderly"          included creating  "excessively unreasonable noise late  at night          in  a residential neighborhood so  that people in  the privacy of          their homes are unable to avoid that noise," the court improperly          imported  into the  definition  of "disorderly"  elements of  the          offense of disturbing the  peace.  In criminal law,  the crime of                                         -17-          disturbing the peace is distinct from that of disorderly conduct.          Mass.  Gen. L.  ch. 272,    53;  Alegata, 353  Mass. at  302, 231                                           _______          N.E.2d at  210 ("Section  53 explicitly differentiates  'idle and          disorderly'  from   'disturbers   of  the   peace.'").      Under          Massachusetts law, speech alone does not constitute  "disorderly"          conduct and Chapter 111B  does not authorize police to  take into          protective custody "disturbers of the peace."  See supra note 7.                                                         ___ _____                                         -18-                                 THE FOURTH AMENDMENT                                 THE FOURTH AMENDMENT                                 ____________________                    The  Fourth Amendment  entitles an  individual to  "the          possession and control of his own person, free from all restraint          or  interference of  others, unless  by clear  and unquestionable          authority of  law."  Terry v. Ohio, 392 U.S. 1, 9 (1967) (quoting                               _____    ____          Union Pac.  R. Co. v. Botsford,  141 U.S. 250, 251  (1891)).  The          __________________    ________          Supreme Court has stated that "this inestimable right of personal          security belongs  as much to  the citizen  on the streets  of our          cities as to the homeowner closeted in his study . . . ."  Terry,                                                                     _____          392  U.S.  at  9.   Unquestionably,  Veiga  was  entitled to  the          protection of the Fourth Amendment as he stood in the parking lot          in Boston.  Id.                      __                    In  order  to  justify  "official  intrusion  upon  the          constitutionally protected interests of the private citizen . . .          the  police officer  must  be  able  to  point  to  specific  and          articulable facts which, taken  together with rational inferences          from those facts, reasonably warrant that intrusion."  Terry, 392                                                                 _____          U.S. at 21  (internal quotation  and citations omitted).   It  is          well established that  "the police [may]  not interfere with  the          freedom of private persons unless  it be for specific, legitimate          reasons."  Duran  v. Douglas, 904 F.2d 1372, 1376 (9th Cir. 1990)                     _____     _______          (citation omitted).                    In  the  present case,  the  officers  have offered  no          common-law  ground  for  detaining Veiga.    In  fact,  at trial,          Officers  McGee  and  Johnson both  admitted  that  they did  not          suspect  either  Goldhirsch or  Veiga  of  any specific  criminal                                         -19-          activity.   See  Brown  v. Texas,  443  U.S. 47  (1979)  (finding                      ___  _____     _____          unlawful  seizure  under  the   Fourth  Amendment  and  reversing          conviction  of  an  individual  arrested,  after  he  refused  to          identify himself and  angrily asserted that  the officers had  no          right to stop him where the officers did not claim to suspect him          of any criminal activity).   Instead, the officers have  asserted          that  Veiga  was  "incapacitated"  and  that  his  detention  was          therefore authorized under Chapter 111B.                    Whether  the   police  officers  acted   reasonably  in          detaining Veiga was  a question of fact  for the jury  to decide.          In  order  for the  jury to  make this  determination, it  had to          understand the  circumstances under  which Chapter 111B  does and          does  not authorize  detention.   The  jury  was given  a  faulty          instruction  on  this  score.    Although  Chapter 111B  did  not          authorize Officers McGee and  Johnson to take Veiga into  custody          for the manner in which he expressed himself, the court failed to                  ______          make this  clear when instructing  the jury as  to what  it might          consider  in determining  whether  Veiga was  "disorderly."   See                                                                        ___          supra pp.  15-16.   Because  of the faulty jury  instruction, the          _____          jury's  response to question 2  of the special  verdict form, see                                                                        ___          supra note 6, cannot be interpreted  as a finding that Veiga  was          _____          detained  for a permissible reason.    The  jury's response could          have been tainted by the  misinformation it was given  concerning          the officers' right to arrest Veiga for disorderliness.  When the          jury  was asked whether Veiga  was taken into  custody because he          exercised  his "right not to answer questions and/or his right to                                         -20-          oppose  verbally the  actions of  the police,"  it may  have been          under the false impression that  the protection afforded to those          rights  extends to content alone.   Because Chapter  111B did not          authorize officers to  detain Veiga  for the manner  in which  he                                                       ______          expressed himself, a detention for that reason would amount to an          unlawful  seizure  under the  Fourth  Amendment  and Veiga  could          therefore establish a Section 1983 violation.10                    Because the determination of whether Veiga was detained          for  a valid reason turns  largely on what  state law authorizes,          the erroneous jury instruction "could have affected the result of          the  jury's  deliberations"  and  therefore  "necessitates a  new          trial."  Allen v. Chance  Mfg. Co., 873  F.2d 465, 469  (1st Cir.                   _____    ________________                                        ____________________          10   We acknowledge that  such a detention  would not necessarily          violate the  First Amendment  of the federal  Constitution; under          the prevailing view of the free speech clause, the government may          in  some contexts  impose  reasonable restrictions  on the  time,          place and manner of speech so long as those restrictions are made          without reference to the content of the regulated speech.  R.A.V.                                                                     ______          v. City of St. Paul, 112  S. Ct. 2538, 2544 (1992); Ward v.  Rock             ________________                                 ____     ____          Against  Racism,  491 U.S.  781, 791  (1989).   But  the negative          _______________          freedom afforded by the First Amendment may not in itself provide          a positive justification for a Fourth Amendment invasion.             Furthermore,   we  recognize,  without  deciding,  that  under          certain  circumstances,   yelling  at  the  police   could  be  a          statutorily proscribed  breach of the  peace and be  a legitimate          basis  for detention.  In the present case, however, screaming at          the  police,  without  more,  was  not  a  legitimate reason  for          detaining  Veiga under the Fourth Amendment.  See Duran, 904 F.2d                                                        ___ _____          at 1377  (detention of individual yelling  profanities at police,          without more, is not a  legitimate reason for police interference          with personal autonomy).  There are specific statutory and common          law provisions  that regulate breaches of the peace.  It seems to          us that Chapter 111B is not one of them and should not be used to          curtail such behavior.   In any event, no evidence  was presented          to suggest that Veiga did in fact breach the peace.   No evidence          suggested that  any neighbors complained  or that a  single light          went on in any of  the nearby apartment buildings as a  result of          Veiga's presence in the parking lot.                                         -21-          1989).                   MOTION FOR JUDGMENT NOTWITHSTANDING THE VERDICT                   MOTION FOR JUDGMENT NOTWITHSTANDING THE VERDICT                   _______________________________________________                    The denial  of a motion for  a judgment notwithstanding          the verdict  under  Fed.  R. Civ.  P.  50 is  reviewed  de  novo.                                                                  __  ____          Hendricks & Assoc., Inc. v. Daewoo  Corp., 923 F.2d 209, 214 (1st          ________________________    _____________          Cir. 1991).  We  may "grant judgment notwithstanding the  verdict          only  after  a  determination  that  the evidence  could  lead  a          reasonable  person  to  only  one  conclusion."    Id.  (internal                                                             ___          quotation and  citation omitted).  We  are "compelled, therefore,          even in a close case, to uphold the verdict unless  the facts and          inferences,  when viewed in the light most favorable to the party          for whom the jury  held, point so strongly and  overwhelmingly in          favor of the movant that a reasonable jury could not have arrived          at  this  conclusion."    Id. (internal  quotation  and  citation                                    ___          omitted).                    We need not decide  whether the evidence can  support a          finding that Veiga was "disorderly" within the meaning of Chapter          111B, as we have interpreted it  in this opinion.  This case must          be  retried because of the  faulty jury instruction,  and, in any          event, in order to find that the police were justified  in taking          Veiga  into protective custody, the jury need not find that Veiga          was  "disorderly."  The jury  could alternatively find that Veiga          was incapacitated  within  the meaning  of  Chapter 111B,  if  by          reason  of intoxicating  liquor, he  was (1) unconscious,  (2) in          need  of  medical attention,  or (3)  likely  to suffer  or cause          physical harm  or damage.   Mass.  Gen. L.  ch. 111B,    3.   The                                         -22-          police  officers  and the  City have  not  argued that  Veiga was          either unconscious or in  need of medical attention.   They have,          however, argued that Veiga was likely to suffer or cause physical          harm or damage.                    Veiga argues that their contention that he  was at risk          of  causing harm  to  himself or  to others  is merely  a belated          excuse  to try  to justify  the police  officers' actions.   Even          though our  reading of  the record  might lead  us to  agree with          Veiga,  the police officers' claim that Veiga was likely to cause          or suffer harm  presents a question of fact or credibility of the          witnesses  for  the jury  to decide.   In  deciding a  motion for          judgment as a matter of law, we "may not consider the credibility          of  witnesses, resolve  conflicts in  testimony, or  evaluate the          weight of  the evidence."  Hendricks,  923 F.2d at 214.   After a                                     _________          careful review of the record, we must conclude that the evidence,          taken in the  light most favorable to the officers  and the City,          could  support a finding that Veiga  was likely to suffer harm or          cause physical  damage to  himself or  someone else.   Therefore,          Veiga is not  entitled to judgment  in his favor  as a matter  of          law.                    In  light  of  the improper  jury  instruction defining          "disorderly" within the  meaning of Chapter  111B, we vacate  the          judgment in this case and remand for a new trial consistent  with          this opinion.                    Vacated and remanded for a new trial.                    ____________________________________                                         -23-
