Mass. high court hears whether resisting-arrest law shields protected protest and whether evidence supported juvenile convictions

The Massachusetts Supreme Judicial Court on Monday heard arguments about whether the state's resisting-arrest statute can be read to protect clearly protected First Amendment activity and whether the evidence was sufficient to support convictions of several juveniles who filmed or protested officers during a street confrontation.

At issue was how the statute's "color of law" element and the two-prong resisting definition should be interpreted when the alleged conduct occurred amid what counsel described as a chaotic scene of students in the street. Counsel for one juvenile argued that including a First Amendment protection within the color-of-law element is necessary to prevent police from "quell[ing] criticism, punish[ing] disrespect, and avoid[ing] civil liability," and that the Commonwealth could not meet its burden if the defendant was exercising clearly protected speech.

The question matters because the court must decide whether acts such as shouting at officers, filming them while standing near an arrest, or turning away when an officer attempts to place a hand behind a back amount to the criminal conduct the statute criminalizes. "By including the color of law element in the resisting arrest statute, the legislature provided a limit on police power," said counsel for the juvenile identified in the record as Friedrich F. "To enforce that limit, this court must hold that the Commonwealth cannot meet its burden on the color of law element if the person arrested was exercising their clearly protected First Amendment rights."

Michelle Mungen, attorney for the juvenile Manolo M., asked the court to vacate his adjudication for resisting arrest on grounds of insufficiency of evidence, urging that the record lacks direct proof that Manolo used physical force during the arrest itself. "There's a paucity of evidence of his resistance during the arrest as opposed to the scuffle that happened before the arrest," Mungen told the justices.

Melissa Chelly, counsel for juvenile Angela A., emphasized that the resisting statute contains legislatively imposed limitations that the court should not expand. Chelly urged the court to preserve the statutory distinctions between the prong that criminalizes force directed at an officer and the prong that criminalizes other conduct that creates a substantial risk of bodily injury.

Elizabeth M. Marble, appearing for the Commonwealth, defended the appeals court's standard and the factfinder's inferences. Marble told the justices the record contained officer testimony and juvenile testimony that permitted a reasonable factfinder to infer a struggle during the arrests. "In reviewing that evidence in this particular forum, like most favorable to the Commonwealth, [the factfinder] could reasonably infer a struggle and the need for assistance," Marble said.

Justices pressed the advocates on how to draw the line between passive or protected conduct and criminal resistance. Justice Gazziano asked whether the good-faith standard applicable to arrests should be equated with the Latimore standard used for assessing probable cause, and whether the resisting statute's two prongs should be read together or disjunctively. The court also discussed prior decisions including Commonwealth v. Hart and the appeals court's recent opinions such as Tyson and the cases counsel cited as illustrative (e.g., Feigenbaum, Grandison). The bench probed whether actions like "pulling away," "stiffening," or keeping arms tucked while on the ground meet the statute's requirement of using physical force "against" a police officer or instead amount to passive resistance.

Counsel for the juveniles pointed to video testimony that, they argued, undermined certain officer descriptions of crowd surges and emphasized that in several instances the record did not show repeated commands or observed interference by the juveniles. Counsel also repeatedly invoked First Amendment considerations, arguing that filming and vocal criticism of police officers can be protected speech and that the resisting charge should not become a tool to punish those exercises of speech.

The arguments did not produce an immediate decision. The court's questions focused on statutory construction (how to read the two prongs of the resisting statute together), the proper standard for reviewing evidentiary insufficiency on appeal, and the interaction between the color-of-law element and First Amendment protections. The court will issue a written opinion resolving those questions and whether any convictions must be vacated or reversed.

Less critical details discussed at argument included counsel's repeated references to the presence of about 100 students in the street, testimony that an officer said people were "slapping and kicking" classmates, and descriptions that a phone was held "four inches" from an officer's face during the incident. Advocates disagreed about how much the video evidence corroborated or contradicted officer testimony and about whether the officers gave clear, constitutional dispersal orders before making arrests.