Commonwealth v. Kerr
Commonwealth v. Kerr
Opinion of the Court
On September 1, 1988, the defendant, formerly a police officer with the Malden police department, was found guilty of violating G. L. c. 265, § 25 (1988 ed.), when he “did, as a police officer, verbally, maliciously and unlawfully use or threaten to use against James J. Sullivan, the power [or] authority vested in him, with the intent to compel Mr. Sullivan to do any act against his will.” At the close of all of the evidence the defendant moved for a required finding of not guilty. The motion was denied. The defendant then appealed. In December of 1988, this court decided a trilogy of cases involving the interpretation of art. 12 of the Massa
The events which led to the defendant’s conviction occurred on July 24, 1987. On that date, Kerr, a sergeant and a nineteen-year veteran with the Malden police force, was working a paid detail. Kerr, in addition to his duties as a police officer, was privately employed by the Malden Trust Company to repossess motor vehicles.
At about noon on July 24, 1987, Kerr left his paid detail and drove his cruiser to a restaurant in Stoneham to repossess an automobile for the Malden Trust Company. Kerr was in full uniform. He entered the restaurant and asked the owner, James Sullivan to speak with him outside. Once outside the restaurant, Kerr apparently told Sullivan that he had a warrant for Sullivan’s arrest for concealing mortgaged property, namely the automobile. It is undisputed that Kerr had no warrant. Kerr demanded the keys to Sullivan’s automobile. Sullivan’s wife turned over the keys on hearing from her husband that Kerr had a warrant and that Sullivan would be arrested if she did not give Kerr the keys.
Kerr then went to a taxi cab company next door to the restaurant, identified himself as a Malden police officer, and asked for a driver to transport the repossessed vehicle to Malden. Kerr led the driver to Kerr’s home in Malden, left the automobile there, and drove the driver back to Stone-ham. Kerr never paid the driver for his services and had stated to him that he was repossessing an automobile for a bank.
It is a well-established proposition that criminal statutes are to be construed narrowly. We have stated that “[w]e must resolve in favor of criminal defendants any reasonable doubt as to [a] statute’s meaning.” Commonwealth v. Connolly, 394 Mass. 169, 174 (1985). The defendant was convicted of violating G. L. c. 265, § 25, which states in pertinent part that “any police officer . . . who verbally or by written or printed communication maliciously and unlawfully uses or threatens to use against another the power or authority vested in him, with intent... to compel any person to do any act against his will, shall be punished” (emphasis added). The statute is clear on its face that an officer must threaten to use a power or authority that is actually vested in him, a threat that he actually has the power to carry out. If the officer does not in fact have the power which he threatens to use, then under the plain meaning of the statute, he is not guilty of a violation.
Given this starting point, the question becomes whether Kerr had the power to arrest Sullivan on the day he threatened to arrest him. When executing an arrest warrant, a police officer’s powers are State-wide. Commonwealth v. Martin, 98 Mass. 4 (1867). However, when a police officer does not have a valid warrant, the power to arrest is limited to the governmental unit to which he has been appointed.
When a police officer makes a warrantless arrest outside his territory and neither of the two exceptions exists, he acts only with the authority he would have as a private citizen. Commonwealth v. Grise, supra at 251. In Massachusetts, a private citizen has the power to arrest a person who has in fact committed a felony. Commonwealth v. Lussier, 333 Mass. 83, 92 (1955). In this case, the crime for which Kerr told Sullivan he had an arrest warrant was a misdemeanor.
Kerr did not have a warrant for Sullivan’s arrest as he alleged. He therefore did not have the power to arrest because he, a Malden police officer, was in Stoneham, outside his jurisdiction. There was no evidence of fresh pursuit of a suspected felon or that Kerr was specially sworn in to make arrests in Stoneham. He did not have the power, even as a private citizen, to make an arrest. The statute is clear that, for a violation, an officer must threaten a person with a power or authority vested in the officer. The statute is penal and therefore must be construed narrowly. No arrest power was vested in Kerr at the time of the threat. Accordingly, he should have been found not guilty.
The Legislature may want to consider amending G. L. c. 265, § 25, to make it punishable for a police officer with
Judgment reversed.
Finding set aside.
Carney v. Springfield, 403 Mass. 604 (1988). Doe v. Springfield, 403 Mass. 1010 (1988). Springfield v. Civil Serv. Comm’n, 403 Mass. 612 (1988).
Sullivan was accused of concealing mortgaged property in violation of G. L. c. 266, § 82 (1988 ed.).
Dissenting Opinion
(dissenting, with whom O’Connor and Greaney, JJ., join). General Laws c. 265, § 25, punishes “any police officer or person having the powers of a police officer . . . who verbally or by written communication maliciously and unlawfully uses or threatens to use against another the power or authority vested in him . . . with intent to compel any person to do any act against his will” (emphasis added). Instead of merely prohibiting abuse of a police officer’s vested power, the Legislature specifically chose to target the abuse of his or her power or authority. A fundamental principle of statutory construction is that “[wherever possible, we give meaning to each word in the legislation; no word in a statute should be considered superfluous.” International Org. of Masters v. Wood’s Hole, Martha’s Vineyard & Nantucket S.S. Auth., 392 Mass. 811, 813 (1984). Furthermore, “the word ‘or’ in its ordinary use and also in accurate meaning is a disjunctive particle. It marks an alternative and not a conjunctive. It indicates one or the other of two or several persons, things or situations and not a combination of them.” Gaynor’s Case, 217 Mass. 86, 90 (1914). The court fails to consider the distinction between power and authority, or neglects to follow our rule of interpretation. The Legislature generally does not include superfluous language in a statute.
Webster’s New Int’l Dictionary (2d ed. 1957) provides four definitions of “authority,” two of which are relevant to c. 265, § 25. The first definition is “[ljegal or rightful power, a right to command or to act; power exercised by a person in virtue of his office or trust; dominion; jurisdiction; authorization.” Id. at 186. This definition is basically synonymous with the court’s definition of power. Authority, in this sense,
I can discern no plausible distinction between the first definition of authority, and the meaning of the word “power” as used by the court.
At common law, “it is extortion ... to receive, by colour of office, a fee before it is due.” Commonwealth v. Bagley, 7 Pick. 279, 281 (1828). We have long recognized that “a statute should not be interpreted as being at odds with the common law ‘unless the intent to alter it is clearly expressed.’ ” Commonwealth v. Burke, 392 Mass. 688, 690 (1984), quoting Commonwealth v. Knapp, 9 Pick. 495, 514 (1830). Here, the fair and natural interpretation of the phrase “power or authority” in G. L. c. 265, § 25, is in accordance with the common law term “by color of office.” Only by ignoring the statutory language is the court able to narrow the statute from its common law origins. In the absence of any clear evidence that the Legislature intended such a break with the common law, I would not infer such a change. See Adler v. Sheriff, Clark County, 92 Nev. 641, 643 (1976) (statute punishing a public officer who demands compensation “for his official service” interpreted to encompass a demand
I interpret G. L. c. 265, § 25, to prohibit police officers from using or threatening to use the actual power or apparent authority vested in them to compel any person to act against his or her will. Thus, Kerr’s conviction should stand. The authority that Kerr exerted over Sullivan was not derived from a legally conferred power; it was derived from the authority of the uniform and the badge as well as the respect most citizens confer on a police officer. It was reasonable for Sullivan to believe that Kerr had the authority to arrest him if he did not obey Kerr’s commands. Because there was sufficient evidence from which the judge could have found that Kerr threatened to use his police (apparent) authority against Sullivan if the latter did not turn over his keys, I would affirm the conviction and the Superior Court judge’s denial of the motion for a required finding of not guilty.
The court asserts that “[t]he statute is clear on its face that an officer must threaten to use a power or authority that is actually vested in him, a threat that he actually has the power to carry out. If the officer does not in fact have the power which he threatens to use, then under the plain meaning of the statute, he is not guilty of a violation.” Ante at 286.
The fact that the statute requires the power or authority to be “vested” does not detract from this conclusion. The verb “to vest,” according to Webster’s, means “[t]o clothe (with authority, power, or the like).” Webster’s New Collegiate Dictionary 948 (2d ed. 1953). A police officer certainly can be “clothed” with apparent authority even though he or she may not actually possess a de jure power. The authority may be vested or clothed by virtue of a badge or uniform, see G. L. c. 41, § 98 (police officers may carry authorized weapons within the Commonwealth); c. 41, § 98C (police officers required to wear badge, tag or label with identification number or name), and the public is required to defer to that authority, see G. L. c. 90, § 21 (police officer authorized to make an arrest may arrest motor vehicle operators whose licenses have been revoked provided that officer is in uniform or displaying badge); G. L. c. 90, § 25 (any person who refuses to stop automobile when signalled by a police officer in uniform or conspicuously displaying badge shall be punished); G. L. c. 89, § 7A (no person may obstruct police vehicles or vehicles bearing official police department designation at or on the way to a fire); G. L. c. 89, § 7B (police vehicle responding to emergency may drive in excess of speed
Reference
- Full Case Name
- Commonwealth vs. William Kerr
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- 17 cases
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- Published