Veiga v. McGee

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

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

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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.

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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.

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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

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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

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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

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."

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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

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

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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

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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.

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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

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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

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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 . . . .

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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

The district court instructed the jury as to the term

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"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.

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(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.

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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

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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.

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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

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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

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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.

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1989).

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

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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.

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