Black Lives Matter, But So Do Commuters': From Concrete to Cuffs For I-93 Protesters?

If you regularly drive into Boston like me, you may have found yourself stuck in traffic much longer than usual this past Thursday morning.  Heading in the opposite direction from north of Boston for a murder arraignment in Salem that morning, I was one of the lucky ones. But the gridlocked traffic on the other side of the divider on 93 South sure got my attention. It didn't take long for me learn the cause (from a Legal Associate unable to join me in court because he was stuck in traffic on the other side of Boston—going nowhere.) In a coordinated effort, protesters aligned with the activist group Black Lives Matter blocked morning rush hour traffic from both the north and south of I-93 by chaining themselves to concrete-filled barrels and/or each other, snarling traffic for hours while state police and emergency services endeavored to cut the protesters free and restore access, and flow, to affected roadways.  Although the police may have freed the protesters from their constraints, the relief was only temporary; 29 protesters were arrested, charged and arraigned later that same day. 

As a defense attorney, it is second nature for me to challenge the Government. It is also my job to protect the rights, freedoms, and constitutional liberties of my clients, which absolutely include the specific right to assemble, protest and publicly express one's opinions. However, I am also a taxpayer, a drive-time commuter and a 6-7 day a week worker. I consider myself a responsible citizen. Freedom of expression is one thing. What these protesters did on Thursday is quite another and, frankly, it pissed me off!

Many people mistakenly think protesters such as those that stopped traffic on Thursday have the undeniable right under the 1st Amendment to say whatever they want and assemble/congregate wherever they choose, so long as they do so peacefully. It is, in fact, true that the right to free speech and assembly are expressly protected under the 1st Amendment to the Constitution.  However, what many people fail to realize is that 1st Amendment rights are limited in scope - the time, place, and manner of speech can be restricted.  For example, most folks recall the old adage that, to paraphrase Supreme Court Justice Oliver Wendell Holmes, you can't yell fire in a crowded theater (Schenck v. United States)  or that the right to walk down the street swinging your arms stops the moment you strike someone in the nose (paraphrasing John B. Finch) . 

As the I-93 protesters will learn, when carried out in an unlawful and/or dangerous manner, there are consequences for actions that ostensibly constitute free speech. This past Thursday, lives were endangered, at least one emergency vehicle transporting an 83 years old car crash victim was delayed and rerouted, businesses were disrupted, thousands of people inconvenienced, and countless important appointments were missed— many of which likely included difficult to schedule medical and healthcare dates, and probably more than a handful of never to be rescheduled funerals and memorial services. 

Nonetheless, the impetus for this blog is not to discuss or analyze the politics of the protesters' actions or evaluate the appropriateness of the police's response. Another intrinsic component to my job as a criminal defense attorney is not to pass judgment, so I won't any further. Instead, I believe it far more useful for me to discuss the charges the protesters are most likely facing, their sentencing exposure, and the likely outcomes for them and their cases. If by so doing, I have helped others think twice before engaging in similar conduct, I will take satisfaction in having effectively performed my job before I was actually needed.

The protesters face criminal charges that include trespassing, resisting arrest, disorderly conduct, and conspiracy. So what can the arrested protesters expect now?  For those that are first time offenders, an experienced criminal defense attorney like me would be trying to secure a CWOF or pretrial probation, but if hit with the maximum available sentence, those charged face the following:

            Trespassing: M.G.L. c. 266 § 123 - a $50 fine or up to 3 months imprisonment;

            Resisting arrest: M.G.L. c. 268 § 32B - a fine of up to $500 and/or imprisonment for up to 2½ years;

            Disorderly conduct: M.G.L. c. 272 § 53 - for the first offense, a fine of up to $150; for a second or subsequent offense, a fine of up to $200 and/or imprisonment for up to 6 months; and

            Conspiracy: M.G.L. c. 274 § 7 - for these cases, a conviction for conspiracy to do any of the above-charged crimes would result in the same punishment as the crimes themselves if actually committed.

Conceivably, additional charges could have included: failure to depart an unlawful assembly (which carries a maximum penalty of 1 year in jail and/or a minimum fine of $100-$500), assault and battery on a public employee (which carries a minimum penalty of 90 days in jail and a maximum of 2.5 years), reckless endangerment (which carries a penalty of up to 2½ years imprisonment) or, at a stretch, obstruction of justice (which carries a maximum penalty of 1 year in jail and/or a maximum fine of $1,000).  As for obstruction of justice, the prosecution could conceivably use the press release issued by the groups as evidence of their intent to "disrupt[]... proceedings of any court of the Commonwealth."  Had a riot ensued, which nearly happened had it not been for cooler heads prevailing and State Police persuading angry commuters to return to their cars, there likely would not be a separate charge (or at most, there would be a second count for failing to depart an unlawful assembly), since inciting a riot is subsumed within the unlawful assembly statute. It's possible they also face civil liability/exposure for a variety of torts if it can be shown that their conduct was the proximate cause of damage to the delayed motorists' person or property.

In the future, protestors in similar situations may face more serious penalties than those cited above.  State Rep. Timothy Whelan filed a bill which would impose a maximum 1 year jail term and/or a maximum $2,500 fine for anyone who blocks a public road.  Rep. Whelan's bill would also include a provision that would make a conviction prima facie evidence in any future civil proceeding seeking damages resulting from such an action.  The provision would essentially make it easier for potential victims to receive redress in civil proceedings once a defendant has been criminally convicted.  State Rep. Colleen Garry also just proposed a bill which would allow manslaughter and murder charges to be brought against a protester whose demonstration on a public roadway causes death. 

Regardless of the crime charged, or against whom the charges are levied, I am always ready to represent anyone willing and able to hire me. It doesn't matter what someone is charged with, their political affiliations or concerns - Black Lives [do] Matter, everyone is entitled to a zealous defense, and I can always use the business - even if they are the reason it takes me a little longer than usual to get to my office for the initial consult!


About the author:

Brad Bailey is a Boston Criminal Defense Lawyer and was a felony prosecutor in Manhattan (NY) and an Assistant District Attorney in Middlesex County (MA), where he prosecuted murders, sex crimes and serious narcotics trafficking cases.  He went on to prosecute federal drug crimes and the mafia/organized crime as an Assistant U.S. Attorney for the U.S. Attorney's Office in Boston.  A five time Super Lawyer and Top 100 Trial Attorney, he is AV rated by Martindale, "10.0 Superb" rated by Avvo, and rated by Lead Counsel for verified experience, peer recommendations and a spotless record.  Brad has been a member of the defense bar since 1999, and uses his vast experience on both sides of the law to protect clients from government misconduct and overzealousness and defend those accused of all manner of crimes, including:  trespassing, resisting arrest, disorderly conduct, and conspiracy, in state and federal courts, in Massachusetts, throughout New England, and everywhere in the United States.