Friday, October 14, 2011

Anti-Violence Project: Boston Police Lacked Probable Cause for Unlawful Assembly Arrests

From the Anti-Violence Project of Massachusetts
In ordering protestors to leave the Rose Kennedy Greenway early Tuesday morning, the Boston Police Dept. invoked G.L. c. 269, § 1 which empowers the Mayor or police of a city or town to "[command] ten or more persons,  ... unlawfully, riotously or tumultuously assembled [to] immediately and peaceably to disperse [in the name of the Commonwealth] ...." In so doing, the Boston police blatantly disregarded the elements of the offense of "unlawful assembly" under Massachusetts law. As the Massachusetts Appeals Court has held, the crime of "unlawful assembly" requires that the persons so gathered "have formed a common intent to 'engage[] in a common cause . . . to be accomplished with violence and in a tumultuous manner... or 'through force and violence' ...." Commonwealth v. Abramms, 66 Mass. App. Ct. 576, 585-86 (2006)(Cites omitted.) "Thus, an 'essential element' of ... 'unlawful assembly' is 'the intent to commit an act of violence.'"Id. (Emphasis added." Only violent assemblies may be dispersed by order of the police under Massachusetts law. "[P]eaceful assemblies, [but] not violent gatherings, are protected by the First Amendment [and the Massachusetts Declaration of Rights art. 19]." Id. at 587.
The Occupy Boston demonstrators on the Rose Kennedy Greenway were assembled peaceably. The only force employed on the morning of October 11, 2011 was that of Boston police officers dispersing a non-violent protest without a legal basis for declaring an "unlawful assembly." In invoking the "unlawful assembly" statute without probable cause and using force against citizens exercising constitutional rights, the Boston Police themselves violated "clearly established" federal and state constitutional rights, as embodied in the Abramms decision. See Glik v. Cunniffe, No. 10-764, slip op. (1st Cir. 8/26/2011.) In so doing, each and every police officer who participated in the forcible break-up of the assembly on the Rose Kennedy Greenway may have exposed him or herself to personal liability under 42 U.S.C. § 1983.

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