WEBVTT
1
00:00:02.310 --> 00:00:03.560
Good morning, everyone.
2
00:00:04.710 --> 00:00:07.230
Welcome to a new court year.
3
00:00:07.230 --> 00:00:10.470
We're all excited to be back at it.
4
00:00:10.470 --> 00:00:14.070
Justice Gaziano called it the first day of school for us.
5
00:00:14.070 --> 00:00:19.070
So we're very happy to be here and we are all here.
6
00:00:19.500 --> 00:00:23.310
Justice Kafker is joining us by telephone.
7
00:00:23.310 --> 00:00:27.297
And so we have to make sure he can hear us.
8
00:00:27.297 --> 00:00:30.330
And so I'll ask when you're speaking to speak right
9
00:00:30.330 --> 00:00:34.380
into the microphone and Justice Kafker we'll ask you to
10
00:00:34.380 --> 00:00:36.550
let us know if you can't hear
11
00:00:38.130 --> 00:00:38.963
I will.
12
00:00:38.963 --> 00:00:39.796
Oh, great.
13
00:00:39.796 --> 00:00:43.500
Okay. So, you know, the beginning of a new court year
14
00:00:43.500 --> 00:00:46.020
presents a unique opportunity to reflect
15
00:00:46.020 --> 00:00:49.020
on the past, the present, and the future.
16
00:00:49.020 --> 00:00:50.740
And it's hard to believe that
17
00:00:52.110 --> 00:00:56.430
It has been the last time that we all sat here
18
00:00:56.430 --> 00:01:01.430
on the same bench as we like to call it the adult table.
19
00:01:01.470 --> 00:01:04.530
It was March 11th, 2020, and that was
20
00:01:04.530 --> 00:01:08.073
before Justice's Wendlandt and George joined us.
21
00:01:09.411 --> 00:01:11.590
So while much has happened since then
22
00:01:12.450 --> 00:01:15.480
I'm heartened by and thankful for the efforts
23
00:01:15.480 --> 00:01:19.470
of so many people who overcame obstacles to keep our courts
24
00:01:19.470 --> 00:01:20.470
in service
25
00:01:21.900 --> 00:01:22.770
to the public.
26
00:01:22.770 --> 00:01:27.770
And because of those efforts, I know that together we can
27
00:01:27.870 --> 00:01:32.133
and will overcome any challenges we may face in the future.
28
00:01:33.570 --> 00:01:35.720
Mr. Caneeli, would you call the first case?
29
00:01:38.066 --> 00:01:40.399
(Inaudible)
30
00:01:44.760 --> 00:01:46.290
Attorney Covington.
31
00:01:46.290 --> 00:01:47.123
Thank you.
32
00:01:55.107 --> 00:01:56.040
Good morning.
33
00:01:56.040 --> 00:01:58.380
May it please the court Andrew Covington
34
00:01:58.380 --> 00:02:02.580
For the Commonwealth is respectfully requesting
35
00:02:02.580 --> 00:02:06.120
this court to affirm the appeals court decision
36
00:02:06.120 --> 00:02:08.640
holding that probable cause existed
37
00:02:08.640 --> 00:02:11.520
for the issuance of count one in the criminal complaint
38
00:02:11.520 --> 00:02:15.450
throwing of a noxious or filthy substance.
39
00:02:15.450 --> 00:02:16.350
The Commonwealth believes
40
00:02:16.350 --> 00:02:19.770
that probable cause was established for two main reasons.
41
00:02:19.770 --> 00:02:23.122
One being human urine is a noxious
42
00:02:23.122 --> 00:02:27.570
and filthy substance and two that the defendant
43
00:02:27.570 --> 00:02:31.890
specifically intended to injure state police property.
44
00:02:31.890 --> 00:02:33.990
Also, I don't want to throw a curve ball out
45
00:02:33.990 --> 00:02:36.780
there first thing first day, but in many
46
00:02:36.780 --> 00:02:40.170
many areas of medicine and other cultures
47
00:02:40.170 --> 00:02:42.990
urine is considered a medicinal substance.
48
00:02:42.990 --> 00:02:47.160
So it's not necessarily inherent to its existence.
49
00:02:47.160 --> 00:02:50.772
It's offensive to us to be handled that way, but
50
00:02:50.772 --> 00:02:55.191
it's not always going to be considered inherently noxious
51
00:02:55.191 --> 00:02:59.220
by maybe in Massachusetts will decide it is
52
00:02:59.220 --> 00:03:01.680
but can you go back to the history
53
00:03:01.680 --> 00:03:04.680
of that statute and why they passed it?
54
00:03:04.680 --> 00:03:06.210
Absolutely. Your honor.
55
00:03:06.210 --> 00:03:10.410
So this statute was enacted in 1851.
56
00:03:10.410 --> 00:03:12.930
It was enacted in a direct response
57
00:03:12.930 --> 00:03:14.190
to the temperance movement.
58
00:03:14.190 --> 00:03:18.060
During that time period, political dissenters
59
00:03:18.060 --> 00:03:22.260
would throw bottles filled with coal tar oral SIC acid
60
00:03:22.260 --> 00:03:25.500
which is referred to in the statue as oil of Vitri oil
61
00:03:25.500 --> 00:03:29.790
into houses of folks who supported the temperance movement.
62
00:03:29.790 --> 00:03:32.160
And those substances would cause, or potentially
63
00:03:32.160 --> 00:03:36.210
cause great disaster to furniture, rugs items in the house.
64
00:03:36.210 --> 00:03:38.791
So this statute is a direct result of that
65
00:03:38.791 --> 00:03:42.270
but it's the Commonwealth's opinion that the legislator also
66
00:03:42.270 --> 00:03:45.840
broadly targeted noxious or filthy substances
67
00:03:45.840 --> 00:03:47.520
that being human urine.
68
00:03:47.520 --> 00:03:52.520
So in the situation that you brought up, your honor
69
00:03:52.770 --> 00:03:54.240
I think we would have an issue
70
00:03:54.240 --> 00:03:58.020
with the second prong of the statute when urines, if
71
00:03:58.020 --> 00:03:59.730
There's an ambiguity, don't we look
72
00:03:59.730 --> 00:04:02.040
at the legislative of history.
73
00:04:02.040 --> 00:04:04.020
You look at the legislative history, your honor
74
00:04:04.020 --> 00:04:06.420
but I don't believe there's an ambiguity here.
75
00:04:06.420 --> 00:04:08.550
The definitions of noxious
76
00:04:08.550 --> 00:04:11.520
and filthy have retained the same meeting
77
00:04:11.520 --> 00:04:14.655
from 1851 all the way up to today in 2002
78
00:04:14.655 --> 00:04:17.550
as the appeals court in the Commonwealth opinion problem.
79
00:04:17.550 --> 00:04:20.220
But why do you think they were throwing oil or vitriol
80
00:04:20.220 --> 00:04:23.673
and gasoline into these people's homes rather than urine?
81
00:04:25.500 --> 00:04:27.360
Those were the items that were available to them.
82
00:04:27.360 --> 00:04:30.120
Those were the items that were popular at the time.
83
00:04:30.120 --> 00:04:32.550
They didn't have urine.
84
00:04:32.550 --> 00:04:33.383
They certainly did.
85
00:04:33.383 --> 00:04:34.320
Your honor.
86
00:04:34.320 --> 00:04:36.001
They certainly did.
87
00:04:36.001 --> 00:04:37.290
I think if the dissenters decided to fill a bottle
88
00:04:37.290 --> 00:04:40.500
of urine and threw a bottle of urine into a home
89
00:04:40.500 --> 00:04:43.323
I think it still get you here under this statute.
90
00:04:44.670 --> 00:04:46.620
Would it cause as much damage?
91
00:04:46.620 --> 00:04:48.510
Could it set a house on fire?
92
00:04:48.510 --> 00:04:50.550
I don't believe it could set a house on fire, your honor
93
00:04:50.550 --> 00:04:52.440
but it's common knowledge in the trooper
94
00:04:52.440 --> 00:04:54.750
in the probable cause statement, even opine this
95
00:04:54.750 --> 00:04:58.170
that urine does, could contain viruses or bacteria.
96
00:04:58.170 --> 00:05:01.772
Okay. Other jurisdictions, Louisiana, New York, Hawaii
97
00:05:01.772 --> 00:05:05.541
which are cited in the Commonwealth briefs have
98
00:05:05.541 --> 00:05:09.960
constituted urine to be a noxious substance.
99
00:05:09.960 --> 00:05:12.150
So why this court or any court
100
00:05:12.150 --> 00:05:14.490
in Massachusetts hasn't defined whether or not
101
00:05:14.490 --> 00:05:17.474
urine is a noxious substance other jurisdictions have
102
00:05:17.474 --> 00:05:19.500
but it's not only a noxious substance.
103
00:05:19.500 --> 00:05:20.760
It's also a filthy substance.
104
00:05:20.760 --> 00:05:22.980
When you say they've defined it
105
00:05:22.980 --> 00:05:25.530
did they define it through their statutes?
106
00:05:25.530 --> 00:05:27.930
Or did they have urine specifically
107
00:05:27.930 --> 00:05:30.750
in statutes or was it a court interpretation?
108
00:05:30.750 --> 00:05:33.870
Court's interpretation, your honor, two of the cases
109
00:05:33.870 --> 00:05:36.030
involved assault and battery charges.
110
00:05:36.030 --> 00:05:39.090
I can't remember which one, but two of them involved you
111
00:05:39.090 --> 00:05:40.860
urine to assault someone.
112
00:05:40.860 --> 00:05:42.870
And both of those courts concluded that urine
113
00:05:42.870 --> 00:05:45.604
is a noxious substance in the other court, I
114
00:05:45.604 --> 00:05:49.510
Believe. And can I ask you counsel in those jurisdictions
115
00:05:50.762 --> 00:05:52.690
was there sulfuric acid
116
00:05:54.380 --> 00:05:59.380
and cold tar also listed alongside filthy and or noxious?
117
00:05:59.550 --> 00:06:00.383
I don't believe so.
118
00:06:00.383 --> 00:06:01.413
Your honor, no
119
00:06:02.651 --> 00:06:05.380
And so my question to you is why delineate coal tar
120
00:06:06.840 --> 00:06:11.440
and sulfuric acid when it's already encompassed
121
00:06:12.614 --> 00:06:17.614
in the term filthy, what would be the legislative purpose
122
00:06:17.850 --> 00:06:18.750
in doing that?
123
00:06:18.750 --> 00:06:19.920
Given our can, and
124
00:06:19.920 --> 00:06:24.920
that we don't each word needs to have, meaning
125
00:06:27.345 --> 00:06:29.190
Is the Commonwealth's belief
126
00:06:29.190 --> 00:06:32.400
that it was the legislator's intent to broadly
127
00:06:32.400 --> 00:06:35.850
encompass other substances that could cause have
128
00:06:35.850 --> 00:06:39.630
the potential to cause extreme damage to someone's property
129
00:06:39.630 --> 00:06:41.130
or a business property.
130
00:06:41.130 --> 00:06:44.490
And so going back to justice, GA's question
131
00:06:44.490 --> 00:06:47.940
what in the legislative history indicates
132
00:06:47.940 --> 00:06:51.450
or supports the Commonwealth position in that regard?
133
00:06:51.450 --> 00:06:52.413
There's nothing in the legislative history
134
00:06:52.413 --> 00:06:53.681
as far as urine
135
00:06:53.681 --> 00:06:56.070
If that's, that's the question, it more deals
136
00:06:56.070 --> 00:07:00.240
with coal tar and sulfuric acid, but there's
137
00:07:00.240 --> 00:07:04.793
A, so what supports the proposition that the
138
00:07:04.793 --> 00:07:09.793
legislature broadly intended to target filthy substances
139
00:07:12.709 --> 00:07:13.740
beyond those substances, which are
140
00:07:13.740 --> 00:07:16.403
like sulfuric acid and cottar
141
00:07:17.400 --> 00:07:20.490
I think the statute would read something like oil
142
00:07:20.490 --> 00:07:24.138
of vitriol or cold tar or other acid, like or cold tar
143
00:07:24.138 --> 00:07:29.040
like substances, but that's not what the statute says.
144
00:07:29.040 --> 00:07:31.770
They give two examples of Colt, tar and oil
145
00:07:31.770 --> 00:07:36.770
of vitriol and then it's or noxious or filthy substances.
146
00:07:37.140 --> 00:07:38.400
So it's the Commonwealth's belief
147
00:07:38.400 --> 00:07:40.170
that the legislator is broadly income
148
00:07:40.170 --> 00:07:44.280
But it does say, or other noxious or filthy.
149
00:07:44.280 --> 00:07:48.826
So given the fact that it does include other I'm wondering
150
00:07:48.826 --> 00:07:53.826
does that favor or disfavor your argument now
151
00:07:53.970 --> 00:07:56.790
Believe it favors the Commonwealth argument, your honor.
152
00:07:56.790 --> 00:07:58.740
And the Commonwealth is asking this court to
153
00:07:58.740 --> 00:08:01.770
apply the plain meaning of those words, which is
154
00:08:01.770 --> 00:08:03.420
what the appeals court did.
155
00:08:03.420 --> 00:08:06.970
That noxious is a harmful or hurtful substance and
156
00:08:08.121 --> 00:08:09.600
or filthy being dirty
157
00:08:09.600 --> 00:08:13.616
or disgustingly dirty fits what human urine is.
158
00:08:13.616 --> 00:08:14.449
And this
159
00:08:14.449 --> 00:08:15.282
Is a felony, right?
160
00:08:15.282 --> 00:08:16.115
It is your honor.
161
00:08:16.115 --> 00:08:16.948
It is a felony.
162
00:08:16.948 --> 00:08:19.584
Could someone be charged if they were engaged
163
00:08:19.584 --> 00:08:22.050
engaging public urination on the side of someone's house?
164
00:08:22.050 --> 00:08:23.100
I don't believe so, your honor
165
00:08:23.100 --> 00:08:24.540
I think you're gonna get prong.
166
00:08:24.540 --> 00:08:27.360
One of the statute you're gonna have obnoxious
167
00:08:27.360 --> 00:08:28.950
or filthy substance that be in urine
168
00:08:28.950 --> 00:08:30.420
but then I think we're gonna have the problem
169
00:08:30.420 --> 00:08:33.930
with the specific intent in that situation, your honor
170
00:08:33.930 --> 00:08:34.980
was the suspect
171
00:08:34.980 --> 00:08:38.548
or defendant specifically intended to injure the property
172
00:08:38.548 --> 00:08:41.070
or just relieving him or herself.
173
00:08:41.070 --> 00:08:43.290
What is the evidence of intent here?
174
00:08:43.290 --> 00:08:44.730
Because wasn't he arrested
175
00:08:44.730 --> 00:08:47.310
for operating under the influence of alcohol?
176
00:08:47.310 --> 00:08:49.637
So I'm presuming he was quite intoxicated.
177
00:08:49.637 --> 00:08:50.520
That's correct.
178
00:08:50.520 --> 00:08:51.972
Your honor.
179
00:08:51.972 --> 00:08:53.160
He was arrested for operating under the influence of alcohol
180
00:08:53.160 --> 00:08:56.640
at two 30 in the morning was completely belligerent
181
00:08:56.640 --> 00:09:00.000
uncooperative with the trooper, the bail clerk that night
182
00:09:00.000 --> 00:09:02.430
was unable to even bail him out because he didn't comply
183
00:09:02.430 --> 00:09:03.840
with the booking process.
184
00:09:03.840 --> 00:09:06.000
He was brought to a hold in cell
185
00:09:06.000 --> 00:09:07.320
and it's the Commonwealth's belief.
186
00:09:07.320 --> 00:09:09.810
We're at probable cause of very low standard here
187
00:09:09.810 --> 00:09:11.790
in the light, most favorable to the Commonwealth
188
00:09:11.790 --> 00:09:14.520
reasonable grounds to believe that a crime is committed
189
00:09:14.520 --> 00:09:15.690
that the specific intent is
190
00:09:15.690 --> 00:09:18.450
that he had a toilet to use right next to him.
191
00:09:18.450 --> 00:09:19.427
He was trying to get
192
00:09:19.427 --> 00:09:21.360
You ever been to a Patriots game.
193
00:09:21.360 --> 00:09:22.193
Yes, I have.
194
00:09:22.193 --> 00:09:23.132
Your honor.
195
00:09:23.132 --> 00:09:23.965
Okay.
196
00:09:23.965 --> 00:09:26.640
So if there's a line with the porta parties
197
00:09:26.640 --> 00:09:30.990
and someone decides not to use one in, into relieve themself
198
00:09:30.990 --> 00:09:31.860
near a vehicle
199
00:09:31.860 --> 00:09:35.515
or something, is that intent, is that a crime
200
00:09:35.515 --> 00:09:38.220
Not under this statute, your honor, perhaps disorderly
201
00:09:38.220 --> 00:09:42.030
conduct disturbing the peace, maybe indecent exposure.
202
00:09:42.030 --> 00:09:43.620
But again, I think we're gonna have an issue
203
00:09:43.620 --> 00:09:47.284
in that hypothetical of specific intent to injure property
204
00:09:47.284 --> 00:09:50.010
which is, I think is different in this case.
205
00:09:50.010 --> 00:09:51.270
Again, we have to take all the facts
206
00:09:51.270 --> 00:09:53.160
and circumstances into light.
207
00:09:53.160 --> 00:09:55.613
The defendant was inside of a show and
208
00:09:55.613 --> 00:09:56.446
The record will reflect
209
00:09:56.446 --> 00:09:58.830
that my experience was at a Eagles game in Philadelphia
210
00:09:58.830 --> 00:10:01.050
not at the Patriot cell, correct myself.
211
00:10:01.050 --> 00:10:02.070
Understood your honor.
212
00:10:02.070 --> 00:10:03.120
Understood.
213
00:10:03.120 --> 00:10:04.500
I'm sure it wasn't you though.
214
00:10:04.500 --> 00:10:05.333
No, it wasn't.
215
00:10:08.162 --> 00:10:09.420
We have to go back though
216
00:10:09.420 --> 00:10:12.730
to going back to the statutory interpretation
217
00:10:14.808 --> 00:10:18.360
the first two specific examples, oil, vitriol, coal
218
00:10:19.500 --> 00:10:23.550
and then you have, or other noxious or filthy substances.
219
00:10:23.550 --> 00:10:27.810
And so the general portion
220
00:10:27.810 --> 00:10:32.280
of the noxious or filthy substances, isn't it limited
221
00:10:32.280 --> 00:10:37.170
by the nature of the first two specific examples?
222
00:10:37.170 --> 00:10:38.430
The Commonwealth doesn't believe so
223
00:10:38.430 --> 00:10:41.130
because what was going on in the 1830s and 1840s
224
00:10:41.130 --> 00:10:42.510
it's the Commonwealth's belief looking
225
00:10:42.510 --> 00:10:43.860
at the legislative history
226
00:10:43.860 --> 00:10:47.010
that the legislator was trying to criminalize any type
227
00:10:47.010 --> 00:10:49.350
of behavior like this, any type of substances
228
00:10:49.350 --> 00:10:52.830
that could potentially damage property of another.
229
00:10:52.830 --> 00:10:54.720
So that's why it's the Commonwealth's belief
230
00:10:54.720 --> 00:10:56.760
that human urine would clearly qualify
231
00:10:56.760 --> 00:10:58.623
as a noxious or filthy substance.
232
00:10:59.805 --> 00:11:03.580
It doesn't just have to be oil O vitreal, which is SIC acid
233
00:11:03.580 --> 00:11:06.073
or cold tar, but other noxious or filthy substances.
234
00:11:06.073 --> 00:11:08.520
I understand your point about the legislative history
235
00:11:08.520 --> 00:11:09.353
but as a matter
236
00:11:09.353 --> 00:11:13.290
of statutory interpretation and we have specific examples.
237
00:11:13.290 --> 00:11:15.990
And then at the end, the general statement
238
00:11:15.990 --> 00:11:18.790
usually the general is limited by the specific
239
00:11:19.770 --> 00:11:21.600
I think if the general would refer back
240
00:11:21.600 --> 00:11:24.450
to those two specific items, if it said noxious
241
00:11:24.450 --> 00:11:27.960
or harmful substances, like oil of vitriol
242
00:11:27.960 --> 00:11:30.990
or like sulfuric acid, but that's not what the statute says.
243
00:11:30.990 --> 00:11:33.210
The statute's only about four sentences long.
244
00:11:33.210 --> 00:11:35.130
So it's the Commonwealth belief
245
00:11:35.130 --> 00:11:36.870
that it's to be broadly interpreted
246
00:11:36.870 --> 00:11:40.290
and given its plain meaning obnoxious and filthy.
247
00:11:40.290 --> 00:11:42.570
I see that I'm almost out of time.
248
00:11:42.570 --> 00:11:44.460
I've just urged the court to affirm the appeals
249
00:11:44.460 --> 00:11:45.293
court decision we're
250
00:11:45.293 --> 00:11:47.913
at probable cause it's a very low standard.
251
00:11:52.050 --> 00:11:53.430
Go ahead.
252
00:11:53.430 --> 00:11:54.513
Yes, please.
253
00:12:00.960 --> 00:12:01.810
We lost you
254
00:12:11.011 --> 00:12:12.392
justice Kaffker?
255
00:12:12.392 --> 00:12:13.495
I can hear you
256
00:12:13.495 --> 00:12:14.328
Hear me.
257
00:12:14.328 --> 00:12:15.608
Yes. Try again.
258
00:12:15.608 --> 00:12:17.587
(inaudible)
259
00:12:17.587 --> 00:12:19.677
(inaudible)
260
00:12:19.677 --> 00:12:21.778
(inaudible)
261
00:12:21.778 --> 00:12:23.887
(inaudible)
262
00:12:23.887 --> 00:12:26.125
(inaudible)
263
00:12:26.125 --> 00:12:27.666
(inaudible)
264
00:12:27.666 --> 00:12:29.999
(inaudible)
265
00:12:31.227 --> 00:12:33.329
(inaudible)
266
00:12:33.329 --> 00:12:35.662
(inaudible)
267
00:12:41.907 --> 00:12:45.090
It's the Commonwealth belief that nothing has been
268
00:12:45.090 --> 00:12:46.260
excluded your honor.
269
00:12:46.260 --> 00:12:49.530
And again, we don't have hardly no cases on point
270
00:12:49.530 --> 00:12:52.260
there's one case that the defendant cited
271
00:12:52.260 --> 00:12:55.353
but that involved throwing urine and human feces
272
00:12:55.353 --> 00:12:56.550
at a jail guard, which is really an no
273
00:13:09.862 --> 00:13:12.195
(inaudible)
274
00:13:17.910 --> 00:13:19.260
Not to the Commonwealth belief
275
00:13:19.260 --> 00:13:21.090
that anything was excluded your honor
276
00:13:21.090 --> 00:13:23.884
in that list or in the legislative history.
277
00:13:23.884 --> 00:13:25.283
Thank you.
278
00:13:25.283 --> 00:13:26.392
Okay. Thank you very
279
00:13:26.392 --> 00:13:27.700
Much. Thank you
280
00:13:28.650 --> 00:13:29.583
Attorney rose.
281
00:13:38.100 --> 00:13:38.933
Good morning.
282
00:13:38.933 --> 00:13:40.170
And may it please the court.
283
00:13:40.170 --> 00:13:42.360
My name is Rachel T. Rose and I represent the defendant.
284
00:13:42.360 --> 00:13:46.650
Andrew Lopez, Novas, other noxious or filthy substances
285
00:13:46.650 --> 00:13:50.040
must mean something beyond harmful or disgustingly dirty
286
00:13:50.040 --> 00:13:52.260
or causing nearly any sort of mess in Massachusetts
287
00:13:52.260 --> 00:13:54.000
can carry a five year prison sentence
288
00:13:54.000 --> 00:13:55.750
if they claim you did it on purpose
289
00:13:56.700 --> 00:13:57.533
Chapter
290
00:13:57.533 --> 00:14:00.300
2 66, section 1 0 3 is deliberately written so broadly
291
00:14:00.300 --> 00:14:03.210
in every other respect that only a meaningful limitation
292
00:14:03.210 --> 00:14:05.370
on what substances it implicates makes the statute
293
00:14:05.370 --> 00:14:08.783
irrational response to the political terror campaign
294
00:14:08.783 --> 00:14:10.980
during which it was enacted almost 200 years ago.
295
00:14:10.980 --> 00:14:11.850
It's comprehensive.
296
00:14:11.850 --> 00:14:13.134
Veria describing how why
297
00:14:13.134 --> 00:14:16.920
and to what the targeted substances can be applied adds
298
00:14:16.920 --> 00:14:19.500
up to banning any means by which they meet with the outside
299
00:14:19.500 --> 00:14:22.020
or anything inside of any building or vessel.
300
00:14:22.020 --> 00:14:25.021
The defendant does not have the right to intentionally soil.
301
00:14:25.021 --> 00:14:26.670
The Commonwealth argument is
302
00:14:26.670 --> 00:14:28.530
that a vague and nearly limitless definition
303
00:14:28.530 --> 00:14:30.900
of what those substances are, must be accepted
304
00:14:30.900 --> 00:14:32.850
over what we'd get using established cannons
305
00:14:32.850 --> 00:14:34.162
of statutory construction
306
00:14:34.162 --> 00:14:36.333
because the legislature only named two hazardous
307
00:14:36.333 --> 00:14:40.230
industrial chemicals, cold tar and oil of vitreal
308
00:14:40.230 --> 00:14:43.503
before using the otherwise broad and subjective terms
309
00:14:43.503 --> 00:14:45.840
not just are filthy, but Iris Deeros has been applied
310
00:14:45.840 --> 00:14:48.559
to lists with only two proceeding examples
311
00:14:48.559 --> 00:14:53.520
before in Commonwealth VUB in 2010, this court interpreted a
312
00:14:53.520 --> 00:14:55.920
since superseded statute regarding dissemination
313
00:14:55.920 --> 00:14:59.880
to minors using the phrase similar visual representations
314
00:14:59.880 --> 00:15:02.130
as covering only images and not text
315
00:15:02.130 --> 00:15:04.380
and online conversations because it was preceded
316
00:15:04.380 --> 00:15:06.580
by the two words, pictures and photographs
317
00:15:07.740 --> 00:15:09.030
the same logic applies here.
318
00:15:09.030 --> 00:15:10.335
Oh, can
319
00:15:10.335 --> 00:15:11.730
I ask you a question about that case?
320
00:15:11.730 --> 00:15:15.870
It does indicate as the Commonwealth suggests this statute
321
00:15:15.870 --> 00:15:17.956
should that those other
322
00:15:17.956 --> 00:15:22.956
the two that preceded the other were similar in kind.
323
00:15:23.850 --> 00:15:28.800
So in that statute, there is the word similar here.
324
00:15:28.800 --> 00:15:30.250
We just have other
325
00:15:32.490 --> 00:15:34.030
I guess my response would be
326
00:15:34.913 --> 00:15:36.360
that there doesn't seem to be any other reason to
327
00:15:36.360 --> 00:15:37.800
include those first two examples
328
00:15:37.800 --> 00:15:39.990
if other was not meant to mean the same thing
329
00:15:39.990 --> 00:15:42.090
as it did in the statute in Zio
330
00:15:42.090 --> 00:15:44.550
as referring to other things that are of the same kind
331
00:15:44.550 --> 00:15:47.890
or class in implying application to VIH RIS.
332
00:15:49.590 --> 00:15:52.450
But doesn't that um
333
00:15:54.840 --> 00:15:57.330
affect whether we decide
334
00:15:57.330 --> 00:16:02.330
that Canon should be applied the inclusion
335
00:16:02.340 --> 00:16:04.200
of the word similar
336
00:16:04.200 --> 00:16:09.190
in the Zio case and the exclusion of similar here
337
00:16:11.130 --> 00:16:14.190
Not every statute is written the exact same way.
338
00:16:14.190 --> 00:16:18.420
It seems that it would exclude a large range
339
00:16:18.420 --> 00:16:21.425
of statutes from application of that rule.
340
00:16:21.425 --> 00:16:26.250
If it had to be stated so explicitly if oil E vitriol
341
00:16:26.250 --> 00:16:28.320
and cottar were not meant to guide a limitation
342
00:16:28.320 --> 00:16:31.350
towards substances of similar toxicity, then essentially
343
00:16:31.350 --> 00:16:33.840
the law makes no sense the legislature's response
344
00:16:33.840 --> 00:16:35.370
to anarchists throwing chemical bombs
345
00:16:35.370 --> 00:16:37.380
to the windows of prohibitionist was to severely
346
00:16:37.380 --> 00:16:39.605
punish people who stopped chewing tobacco on the floor.
347
00:16:39.605 --> 00:16:42.420
Could I just follow up please, on just
348
00:16:42.420 --> 00:16:46.735
as Woodland's question where your have situations
349
00:16:46.735 --> 00:16:47.610
as a matter
350
00:16:47.610 --> 00:16:52.453
of statutory interpretation where the specific is only two
351
00:16:53.430 --> 00:16:58.430
and the general does not include the word similar.
352
00:17:00.120 --> 00:17:02.820
Are there any cases that apply
353
00:17:02.820 --> 00:17:05.490
that Canon of statutory interpretation
354
00:17:05.490 --> 00:17:09.180
that the specific limit the general?
355
00:17:09.180 --> 00:17:10.013
Well, this
356
00:17:11.182 --> 00:17:12.540
unfortunately UB is the closest I was able to find
357
00:17:12.540 --> 00:17:15.404
if I had been able to find something that was exactly
358
00:17:15.404 --> 00:17:16.237
on point to proceeding examples
359
00:17:16.237 --> 00:17:18.150
and use the word word other than I would've cited it
360
00:17:18.150 --> 00:17:22.110
but there's a actually limited scope
361
00:17:22.110 --> 00:17:23.550
of cases that specifically talk
362
00:17:23.550 --> 00:17:25.450
about the rule of each just engineers.
363
00:17:26.534 --> 00:17:27.930
I think we mentioned all of them.
364
00:17:27.930 --> 00:17:32.930
Do we have to, I mean, is it required to use that
365
00:17:33.184 --> 00:17:38.184
use U justum generics for this particular statute?
366
00:17:40.144 --> 00:17:41.665
Or can we look at it in other ways as
367
00:17:41.665 --> 00:17:43.110
Well? It could be looked at in other ways
368
00:17:43.110 --> 00:17:45.000
but I believe using U justum generics is the
369
00:17:45.000 --> 00:17:47.950
only way that it gives effect to every word of the statute.
370
00:17:49.710 --> 00:17:51.086
Why is that?
371
00:17:51.086 --> 00:17:53.594
Because the noxious or filthy subs
372
00:17:53.594 --> 00:17:56.752
you wouldn't need to mention cold tar oil vitriol at all.
373
00:17:56.752 --> 00:18:00.000
There would be, you could just simply say throwing noxious
374
00:18:00.000 --> 00:18:03.672
or filthy substances and have the exact same law
375
00:18:03.672 --> 00:18:06.990
But doesn't that give you, I mean, I understand
376
00:18:06.990 --> 00:18:09.300
that that gives you a sense of what we're talking about
377
00:18:09.300 --> 00:18:12.090
but if you just look at noxious and filthy substance
378
00:18:12.090 --> 00:18:13.525
isn't that kind of broad
379
00:18:13.525 --> 00:18:17.850
I'm just saying noxious or filthy substance.
380
00:18:17.850 --> 00:18:19.270
I think you said it earlier
381
00:18:21.030 --> 00:18:25.080
that could be interpreted as spinning tobacco.
382
00:18:25.080 --> 00:18:25.913
Right?
383
00:18:25.913 --> 00:18:27.930
Right. It could be interpreted as all sorts of things.
384
00:18:27.930 --> 00:18:29.820
And so that it would seem
385
00:18:29.820 --> 00:18:32.100
that the drafters put those two proceeding examples there
386
00:18:32.100 --> 00:18:34.170
in order to must have put the two proceeding examples there
387
00:18:34.170 --> 00:18:35.850
in order to limit the meeting of these terms
388
00:18:35.850 --> 00:18:37.813
because filthy means just
389
00:18:37.813 --> 00:18:39.420
about anything it's and that's the problem.
390
00:18:39.420 --> 00:18:41.550
Unlike the term intellectual disability that this
391
00:18:41.550 --> 00:18:43.950
court upheld to sufficiently definite in Commonwealth St.
392
00:18:43.950 --> 00:18:47.790
Louis in 2015 and the contest of sex offenses
393
00:18:47.790 --> 00:18:49.800
problem is there's no standardized definition
394
00:18:49.800 --> 00:18:51.450
or accepted and well understood meaning
395
00:18:51.450 --> 00:18:53.820
as to what makes something gross.
396
00:18:53.820 --> 00:18:56.070
What rises to the level of disgustingly dirty is
397
00:18:56.070 --> 00:18:58.380
as anyone who has had roommates knows something
398
00:18:58.380 --> 00:19:01.500
that varies greatly from person to person here
399
00:19:01.500 --> 00:19:04.020
that person is the charging authority.
400
00:19:04.020 --> 00:19:06.270
1980 fives, Commonwealth Williams, involved
401
00:19:06.270 --> 00:19:08.910
in ordinance with some similar qualities.
402
00:19:08.910 --> 00:19:10.800
It was the police who decided whether you're centering
403
00:19:10.800 --> 00:19:13.110
and loitering, IE walking was being done
404
00:19:13.110 --> 00:19:15.330
in such a manner as to obstruct travelers or
405
00:19:15.330 --> 00:19:18.585
whether you were one of the travelers being so obstructed.
406
00:19:18.585 --> 00:19:20.670
It does not take a vivid imagination to
407
00:19:20.670 --> 00:19:23.040
foresee the potential for broad application of this statute
408
00:19:23.040 --> 00:19:24.900
to disfavored members of the public.
409
00:19:24.900 --> 00:19:27.092
Especially if they're required.
410
00:19:27.092 --> 00:19:28.380
Intent can be inferred as it was here from the presence
411
00:19:28.380 --> 00:19:31.353
of the substance that discussed the police, claiming
412
00:19:31.353 --> 00:19:33.900
that the specific intent to deface or defile can be presumed
413
00:19:33.900 --> 00:19:36.420
from the nature of a substance is a ology.
414
00:19:36.420 --> 00:19:38.284
When no one can agree
415
00:19:38.284 --> 00:19:39.960
on what the substances on what substances qualify
416
00:19:41.250 --> 00:19:43.890
their interpretation of the statute is unconstitutional
417
00:19:43.890 --> 00:19:46.080
because it provides no meaningful guidance whatsoever.
418
00:19:46.080 --> 00:19:47.980
It's the people trying to abide by it.
419
00:19:49.350 --> 00:19:50.400
Ask to draw the distinction
420
00:19:50.400 --> 00:19:52.020
between a violation of this statute
421
00:19:52.020 --> 00:19:55.110
and property soiling non-criminal and unrecoverable civilly
422
00:19:55.110 --> 00:19:56.670
because it's do minims and damages.
423
00:19:56.670 --> 00:19:59.020
The average citizen will be at a complete loss.
424
00:19:59.910 --> 00:20:01.320
The answer to whether gum or graffiti
425
00:20:01.320 --> 00:20:04.440
on child's desk tracking in mud or dog feces on shoes
426
00:20:04.440 --> 00:20:06.330
spilled drinks or wiped nasal secretions
427
00:20:06.330 --> 00:20:08.460
constitutes the intentional throwing, putting
428
00:20:08.460 --> 00:20:09.750
replacing of filthy
429
00:20:09.750 --> 00:20:13.484
or disgustingly dirty substances is always what it could be.
430
00:20:13.484 --> 00:20:15.600
If the urine toilet paper on the floor in and
431
00:20:15.600 --> 00:20:17.610
around Paris Neve's jail cell is enough to take question.
432
00:20:17.610 --> 00:20:18.443
I'm sorry
433
00:20:18.443 --> 00:20:20.040
You're going so fast.
434
00:20:20.040 --> 00:20:21.030
And I'm trying to keep
435
00:20:21.030 --> 00:20:24.080
up with you, but I'm finding it difficult
436
00:20:24.080 --> 00:20:26.700
If the urine and toilet paper in and around the floor
437
00:20:26.700 --> 00:20:29.700
on his jail cell is enough to take that question to a jury.
438
00:20:29.700 --> 00:20:30.533
Then every one
439
00:20:30.533 --> 00:20:33.420
of those other examples can also be taken to a jury.
440
00:20:33.420 --> 00:20:35.970
But that's not, what's an issue here.
441
00:20:35.970 --> 00:20:39.240
I mean, we're not talking about required finding
442
00:20:39.240 --> 00:20:40.920
we're not talking about Lamore.
443
00:20:40.920 --> 00:20:43.170
We're talking about probable cause.
444
00:20:43.170 --> 00:20:45.630
So you you're making an argument.
445
00:20:45.630 --> 00:20:47.940
That's downstream from where we are.
446
00:20:47.940 --> 00:20:49.530
We're just here it's to whether
447
00:20:49.530 --> 00:20:52.140
or not there's enough probable cause
448
00:20:52.140 --> 00:20:53.520
for this complaint to issue.
449
00:20:53.520 --> 00:20:55.410
And if you're going backwards
450
00:20:55.410 --> 00:20:57.750
and saying that it's limitless
451
00:20:57.750 --> 00:21:00.753
are we really arguing that urine isn't filthy?
452
00:21:00.753 --> 00:21:03.330
I mean, you gave an example
453
00:21:03.330 --> 00:21:05.910
of some other things that might be a jump ball
454
00:21:05.910 --> 00:21:07.800
but are we really at the point of saying
455
00:21:07.800 --> 00:21:10.830
that we all can't agree that throwing urine
456
00:21:10.830 --> 00:21:13.143
somewhere where it should not be isn't filthy?
457
00:21:14.580 --> 00:21:16.710
We can't agree that urine where it shouldn't be
458
00:21:16.710 --> 00:21:18.117
isn't Fil is filthy wipes.
459
00:21:18.117 --> 00:21:19.284
Snot is filthy.
460
00:21:19.284 --> 00:21:21.300
Lots of things are filthy.
461
00:21:21.300 --> 00:21:24.323
Many people feel that things are filthy
462
00:21:24.323 --> 00:21:25.620
and the other people don't feel that they're filthy.
463
00:21:25.620 --> 00:21:27.510
And the point is it's very difficult
464
00:21:27.510 --> 00:21:28.560
under this interpretation.
465
00:21:28.560 --> 00:21:30.630
If there is probable cause to charge him with his offense
466
00:21:30.630 --> 00:21:32.100
because you're in his filthy.
467
00:21:32.100 --> 00:21:34.560
And because he insulted the police so much
468
00:21:34.560 --> 00:21:36.000
that he must have done it on purpose
469
00:21:36.000 --> 00:21:38.300
and he must have done it to harm the jail cell
470
00:21:39.362 --> 00:21:40.581
that contained a toilet.
471
00:21:40.581 --> 00:21:44.010
But then you can say that for any other sort of mess, too.
472
00:21:44.010 --> 00:21:45.810
Cuz if it's dis can, you can
473
00:21:45.810 --> 00:21:47.520
many things are disgustingly dirty.
474
00:21:47.520 --> 00:21:48.900
And if you've touched something with them
475
00:21:48.900 --> 00:21:50.640
you've touched something with them on purpose.
476
00:21:50.640 --> 00:21:51.690
Then that's a felony.
477
00:21:53.422 --> 00:21:56.260
It's just like the school zone statute's being applied
478
00:21:58.031 --> 00:21:58.952
to a defendant counsel.
479
00:21:58.952 --> 00:22:01.560
Can you tell me why the Commonwealth's argument
480
00:22:01.560 --> 00:22:04.260
that the limitation really comes
481
00:22:04.260 --> 00:22:08.043
from the intent element here?
482
00:22:08.043 --> 00:22:11.190
Doesn't suffice from you to avoid the parade
483
00:22:11.190 --> 00:22:15.131
of horribles that you're suggesting would result.
484
00:22:15.131 --> 00:22:19.351
If we interpreted the statute as the Commonwealth wants
485
00:22:19.351 --> 00:22:21.420
Well, an intent to deface
486
00:22:21.420 --> 00:22:25.867
or to let's see deface or defile time
487
00:22:27.130 --> 00:22:30.420
you put something gross on something else, you can argue
488
00:22:30.420 --> 00:22:32.940
that it must have been intended to deface or defile it.
489
00:22:32.940 --> 00:22:33.990
Cause why else would you put that?
490
00:22:33.990 --> 00:22:35.769
There it is.
491
00:22:35.769 --> 00:22:37.560
As the Commonwealth was saying
492
00:22:37.560 --> 00:22:38.700
it's essentially a jump ball.
493
00:22:38.700 --> 00:22:41.160
If they say you must have done it on purpose
494
00:22:41.160 --> 00:22:43.080
then you've that's intent.
495
00:22:43.080 --> 00:22:46.652
It provides a huge amount of discretion to the Commonwealth.
496
00:22:46.652 --> 00:22:49.200
If it doesn't require any sort of actual evidence
497
00:22:49.200 --> 00:22:52.560
of intent beyond it's there, where it shouldn't have been.
498
00:22:52.560 --> 00:22:54.480
And we don't like this guy.
499
00:22:54.480 --> 00:22:56.850
And so finish your argument is your argument.
500
00:22:56.850 --> 00:22:59.460
Therefore then the statute is overly broad
501
00:22:59.460 --> 00:23:01.590
and vague and unconstitutional.
502
00:23:01.590 --> 00:23:03.660
Yes. That if the Commonwealth is correct
503
00:23:03.660 --> 00:23:05.820
that there was probable cause to charge Paris
504
00:23:05.820 --> 00:23:08.220
naves then the statute itself is unconstitutional
505
00:23:08.220 --> 00:23:11.493
and cannot stand it's.
506
00:23:13.110 --> 00:23:15.000
As I was saying, the school zone statute was
507
00:23:15.000 --> 00:23:16.860
applied to a defendant's stop in his car at a red light
508
00:23:16.860 --> 00:23:18.060
within a hundred.
509
00:23:18.060 --> 00:23:21.390
Again, counsel, can you slow down just to tad?
510
00:23:21.390 --> 00:23:22.223
Thank you.
511
00:23:23.751 --> 00:23:26.520
It can't have been what the 19th century
512
00:23:26.520 --> 00:23:28.410
legislature intended when it punished harm
513
00:23:28.410 --> 00:23:31.440
to property done using these substances 20 times
514
00:23:31.440 --> 00:23:33.660
as severely as that done with a hammer
515
00:23:33.660 --> 00:23:36.123
did they really mean anything gross?
516
00:23:37.080 --> 00:23:38.880
In other words is interpreted
517
00:23:38.880 --> 00:23:40.680
by the Commonwealth in the appeals court.
518
00:23:40.680 --> 00:23:42.270
The statute offends by its lack
519
00:23:42.270 --> 00:23:43.530
of reasonably clear guidelines
520
00:23:43.530 --> 00:23:45.600
for law enforcement and its consequent, encouragement
521
00:23:45.600 --> 00:23:48.570
of arbitrary and erratic arrests and prosecutions either.
522
00:23:48.570 --> 00:23:50.730
It's a straightforward ban on a attack using controlled
523
00:23:50.730 --> 00:23:52.410
toxic and hazardous substances
524
00:23:52.410 --> 00:23:54.150
or it's UN unconstitutionally vague.
525
00:23:54.150 --> 00:23:54.983
Thank you.
526
00:23:54.983 --> 00:23:56.090
Okay. Hold on one second.
527
00:23:57.235 --> 00:23:58.524
Let me just ask justice.
528
00:23:58.524 --> 00:23:59.357
KAF. Do you have yeah.
529
00:23:59.357 --> 00:24:00.190
(inaudible)
530
00:24:00.190 --> 00:24:01.023
Covered
531
00:24:11.100 --> 00:24:13.050
If they were throwing what I'm sorry.
532
00:24:16.154 --> 00:24:19.650
Oh, would it have been covered by the statute?
533
00:24:19.650 --> 00:24:20.910
Possibly. It may be
534
00:24:20.910 --> 00:24:22.980
that the statute is just simply poorly written
535
00:24:22.980 --> 00:24:25.410
that they're intending on borrowing a much.
536
00:24:25.410 --> 00:24:27.330
They were intending to borrow a much narrower range
537
00:24:27.330 --> 00:24:30.810
of how you apply up something that's filthy to property.
538
00:24:30.810 --> 00:24:32.190
In which case that would not necessarily
539
00:24:32.190 --> 00:24:35.386
be unconstitutional vague, but as it's written
540
00:24:35.386 --> 00:24:37.370
it would cover it.
541
00:24:37.370 --> 00:24:40.076
It would cover peeing against a building.
542
00:24:40.076 --> 00:24:42.059
Thank you.
543
00:24:42.059 --> 00:24:43.623
Thank you very much.