Commonwealth v. Marcavage - 76 Mass. App. Ct. 34, 918 N.E.2d 855 (2009)

Rule:

Mass. Gen. Laws ch. 272, § 53, proscribes, inter alia, engaging in tumultuous behavior. While susceptible to multiple meanings, tumultuous behavior, for the purposes of § 53, includes the refusal to obey a police order.

Facts:

Michael Marcavage, a street evangelist, was arrested on Halloween night, 2007, in the city of Salem and charged with disorderly conduct, G. L. c. 272, § 53. He was convicted following a bench trial in the District Court, and argued on appeal that (a) the evidence was insufficient; (b) he received inadequate notice of the Commonwealth's theory of the case; and (c) the confiscation of a megaphone by police violated various State and Federal constitutional protections.

Issue:

Did Marcavage’s actions, in context, amount to disorderly conduct as contemplated by G. L. c. 272, § 53?

Answer:

Yes.

Conclusion:

The appellate court held that Marcavage, by refusing police orders and resisting the confiscation of the megaphone, drew a hostile crowd that was out of control. The police were concerned for their own safety as well as the safety of the crowd. Marcavage’s conduct amounted to tumultuous behavior as defendant, by disobeying the order to stop using the megaphone, had engendered hostility toward police and disrespect for their authority among the crowd. The police had ample authority to order Marcavage to stop using the megaphone once they determined that such conduct posed a public safety risk. There was nothing to support the inference that the decision to curtail Marcavage’s use of the megaphone was connected with the content of his speech.