The sum total of the press coverage of the violent arrest in Provincetown last Saturday is that a fair investigation is impossible while Warren Tobias remains Acting Police Chief. His indignant suggestion that there could have not possibly have been silent homophobia in play means we may never know the true motive for the extreme police reaction to a mild criticism of government spoken on private property.
We do know from the police report and Chief Tobias’s statements that the police lacked probable cause both to enter the premises at the P-Town party they crashed, and to charge “disorderly conduct” and “disturbing the peace” (which are the same offense.) First, P-Town Police cannot enter onto private property (especially without a warrant) to abate noise in violation of a Provincetown by-law. They have no legal authority. There is no such thing as criminal nuisance in Massachusetts. Perhaps if a car horn was going off in a back yard police can enter without permission, with a warrant, shut it off, and perhaps charge the owner with disorderly conduct. That’s about the only circumstance I can imagine where the police can shut down a noise they don’t like. That isn’t Barry Scott’s case. Here the police lacked both a warrant and probable cause when they barged into the backyard party to throw Barry against a wall.
Second, there is no such thing as “disorderly conduct” or “disturbing the peace” on private property, where Barry was when the police throttled him, unless there is spillover onto the public streets. Charging these offenses without probable cause is a violation of constitutional due process compensable in money damages. Charging these crimes when the claimed offensive conduct was saying “I hate the police” to cheers and applause consitutes here a violent infringement on First Amendment freedoms, such as the original Mayor Dailey was capable of. The police officers will lack immunity for what they did when the civil rights case goes forward.
The bottom line is that these charges are themselves a violation of Scott’s constitutional rights and every day they continue perpetuates an injustice. And any police chief who defends such conduct cannot be relied on to investigate the wrongs or uphold the constitution. His position is untenable.
I don’t think it’s online. And apparently the police refused to give it to Bay Windows.
has issued against Scott then the police report establishing probable cause must accompany the application for criminal complaint when it is submitted to the magistrate for issuance. That report is a public record and is accessible to anyone who wants to go to the courthouse and shell out the $1.00 charge per page.
I want to clarify that the report of Officer Bova, the lead arresting officer, is available through the Orleans District Court. There are a number of other reports from other officers that Tobias won’t release. You would probably have to travel to Orleans to get a copy of Officer Bova’s report.
since it’s so important to you and John Hosty one of you could drive to Orleans District Court on Monday and scan the report in and post it here for all of us to see.
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Then we wouldn’t have to drive to Orleans.
That the truth is as important to all of us. I don’t have the liberty to travel right now, so if you or someone else does, speak up.
Is that you are right about Tobias. His refusal to give Bay Windows the police reports seems very telling of his intentions.
you know full well that there could be other, plausible, legit reasons for Tobias not to release the police report. for example, perhaps his dog ate it. đŸ˜‰
Is my last article on this issue, posted on my website. I have linked the newspapers now covering the story, and between the different sources, quite a bit of information can be discerned. I call on people to require an independent investigation, and the suspension of these officers involved.
The Edge reports that the house that made all three complaints about the noise was over a half a mile away.
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http://www.mapquest….
Can anyone reconcile for me how 22 Franklin St. would have heard what was going on at 4 Holway st?
the police did go THREE times.
not one intervening house called to complain.
is different.
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My father has a condition whereby Bass is very annoying to him. He is hypersensitive to sound in that range. Another person can be in the same house and not really hear music next door and he gets very annoyed. Perhaps the person that called had the same condition. Perhaps the person that called was at another house in the neighborhood and used his/her cell phone to call.
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There are a lot of possibilities that don’t lend themselves to gay bashing.
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Can somebody clarify for me was the music inside or outside?
There has to be another explanation for this. The cops were either responding to the wrong house, the calls were pranks, or some darker reason. anyone who has been to Provincetown knows it is impossible for the noise to carry that far unless they were setting off bombs, in which case the closer neighbors would have complained.
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Read edgeboston.com and see what the witnesses have to say about the party. It sounds like it was pretty sedate, and if that were true I can understand Barry Scott being a little upset.
John, do we know whether it was the same officers who showed up all three times?
and on the third time four officers showed up, one of them being a sergeant. One of the witnesses (Mr. Donovan) reported that the officers were “surly” and “rude” right from the first time they came to the house.
the same two officers all three times, and these same 2 individuals were joined by a sgt the 3rd time?
“First, P-Town Police cannot enter onto private property (especially without a warrant) to abate noise in violation of a Provincetown by-law. They have no legal authority.”
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Is this a factual statement, or not? I am not a lawyer, but I suspect a few blog here, so what’s the deal guys?
The relevant by-law is Section 13-1-2 of the Provincetown General By-Laws. It says:
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13-1-2. Nuisances of noises or odors. No person shall maintain upon or within private property a nuisance whereby loud noises or noxious odors escape to the disturbance of neighbors or travelers on town, public, or private ways. Each day that such nuisance is maintained or not abated shall constitute a separate offense.
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This is the penalty provision:
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2-1. Fines for violation of a bylaw.
The violator of any of these bylaws and other state and local regulations, shall be subject, for each offense, to the penalty specified in Schedule A to these bylaws, but not exceeding the maximum penalty authorized by G.L. c.40, ?21, as amended.
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The by-law clearly allows for “loud noises” on private property continuing from day to day, provided the property owner is willing to fork over $300 bucks a day for the privilege. The by-law by its plain terms does not give the police a right of entry onto private property.
The cops are supposed to stand on the sidewalk, and yell at people in the the party to turn the music down or have the citation issued to them?
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Also, did you know the law clearly allows for me to shoot you in the face, provided I thereafter spend a lengthy amount of time in jail for the privilege?
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Your twisting of the law to make these people look like they did absolutely nothing wrong and it was only the cops who were wrong that night is ridiculous.
between walking onto property for teh sole sake of knocking on the front door, and just walking through the door or into the back yard. I don’t know what happened in this case, just sayin it isn’t always black & white.
You don’t know what happened because you weren’t there. I represent a line of thinking that these men were abiding the law, and the police were out of line. You have no proof that this is not true, so honestly, why do you hold so vehemently to the idea that we can’t be right?
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This is how debate takes place. Share your ideas on what you think happened, and why. We all benefit from debate, but not from argument.
What kind of approach is that, John? Whaaa, what did you say, we’re not in Merry Ole England anymore, where one is guilty until proven innocent? Oh. sorry. forgot. We’re Americans.
but merely Tudors interpretation of the law.
The cops are supposed to adhere to the law, which you can clearly read for yourself above. Their authority over noises that are less loud than a car horn is limited to issuing citations. They have no legal authority to enter private property to abate a nuisance. The rule of law does constrain police freedom to creatively resolve problems. I gather police in other countries would be completely within their rights to trespass on private property in order to throw a critic of government up against a house.
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I can understand if you’re unsympathetic to the gay victims, but are you equally flip about private property rights? Those were violated by an entry onto the premises without a warrant.
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I should warn you that if you attempt the experiment with homicide you hypothesize, given your willingness to spend time in prison, stick to Massachusetts. Other states will fry you if you kill somebody. Somehow a $300 fine doesn’t seem as forceful a deterrent to loud noise as life in prison or execution is to murder.
They have no legal authority to enter private property to abate a nuisance. The rule of law does constrain police freedom to creatively resolve problems.
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You’re kidding, right?
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Seriously, you’re just making this up as you go, aren’t you?
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Police not only have the legal authority to enter private property to abate a nuisance, they are obligated to do so upon receiving a complaint.
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I’m trying to be polite but your posts about police and their authority to enter private property might be the most ridiculous things I’ve ever read on this site.
…obligated to do so. If police arrive at the scene of an alleged disturbance and determine that there is no evidence that such a disturbance is or has been taking place they do not need to enter said property. To oblige the police to enter would give anyone with a phone the right to send the police into any property they chose. See my post below for the relevant statutes. You will note there is no language of obligation contained within.
should be
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To obligate the police to enter……
Perhaps I was not clear in my statement. I said:
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Police not only have the legal authority to enter private property to abate a nuisance, they are obligated to do so upon receiving a complaint.
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I probably could have been clearer and said “they are obligated to do so to abate a nuisance they have confirmed.”
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Here’s an example:
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Citizen X complains about noise at a party next door. The officers then go to the sidewalk outside the party and verify the noise is too loud. Once they have confirmed there is a noise problem, they go into the back yard where the party is being held to ask them to turn down the music, or issue a citation.
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But to claim that police have no legal authority to enter private property because of a noise complaint is patently ridiculous.
… such a big deal that the founding fathers addressed it in the constitution. The cops are supposed to be well versed in what is ok when.
…..was mistreated by Police either in the method of his arrest or the method of his detainment thereafter he has a right to seek a civil remedy for that mistreatment. That is doubtless true.
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However, your assertion that the police unquestionably entered the property illegally or that the by-laws of Provincetown allow for perpetual noise disturbances without recourse of police intervention is wholly incorrect.
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MA General Laws Chapter 41 Section 98 provides the police with the right to enter any building without a warrant(a private yard would be encompassed as appurtenant to a building), and gives them the right to arrest people for not abating the nuisance or for not disbursing. You will note there is no requirement that the police be acting pursuant to a complaint of a disturbance. Case law provides a defense against the entry – being able to prove that a most people would not have found the situation unreasonably disruptive. Disturbing the peace is made a crime by Chapter 272 Section 53. And so there is no confusion on your part, State Law controls and any municipal code that contravenes State Law is void, although the by-laws you reference, on their face, do not provide the rights against police entry that you claim.
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In summary, if Mr. Scott engaged in behavior that caused an unreasonably disruptive disturbance the police had the right to enter and order the disturbance abated and to disperse the crowd. They were also within their rights to arrest Mr. Scott and detain him for the crime of disturbing the peace. They had no right to physically or psychologically mistreat Mr. Scott. Unless it can be proven that the situation was in fact not a disturbance, it appears likely that the only colorable claim Mr. Scott has arises out of his alleged mistreatment.
It’s legal to have disturbances on private property provided they don’t spillover onto the streets. Check the cases which have saved Sec 53 from constitutional invalidity, especially the 2003 decision of the Appeals Court in Commonwealth v. Mulvey. Meanwhile, the statute you cite does not even purport to abrogate the warrant requirement of the federal and state constitutions. If there is a danger to life or limb, exigent circumstances would justify a warrantless entry consistent with the constitution. But the courts define exigent circumstances very narrowly, and no definition would encompass speech on private property.
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I’ll leave you with this mystery quotation. Can you identify where it comes from, and indicate whether it applies in Provincetown? Here goes:
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“The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.”
i’m pretty sure i saw that lining the bird cage on my last tour through the white house.
…contention that the police who enter private property without a warrant as a result of a public disturbance do so in violation of the 4th Amendment for lack of probable cause? I would be very interested in seeing a citation to a SCOTUS case that backs up such a blanket assertion because I am not aware of one.
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that i was making a joke.
…enough. It is my contention that it wasn’t funny.
….was able to establish that his behavior was not a public disturbance, which is the defense to entry that I stated above. If Mr. Scott can prove that there was no public disturbance he will received the same treatment of law that a precedent like Mulvey would afford him.
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It should be noted that the disturbance does not need to “spill out into the streets” in a physical sense but rather must simply be disturbing to one who is on the street.
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I am well aware of the promise of Amendment IV of the US Constitution. I am also aware that probable cause in Mass to enter private property is the occurance of a public disturbance, even one completely physically contained on private property and that US Consitutional jurisprudence holds such laws to be Constitutional.
You should read Mulvey all the way through, where they make clear what Sec 53 does and does not do on private property. I’d agree police might be able to get away with entering a back yard to silence a car horn, but speech? Perhaps Nixon should have gone after the anti-war protesters for being too noisy, chasing them into their homes without warrants if necessary to restore public order!
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I’m hoping you offer your legal services to the Provincetown police officers who face civil exposure under state and federal law for violations of the First, Fourth, and Fourteenth Amendments.
…..all the way through. It is, afterall, very short. It does not back up your assertions in any way. It highlights the defense to entry that I accounted for in my original comment.
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If the police mistreated Mr. Scott in any way they should be held accountable. I do not disagree. Your assertion, however, that police entry onto private property in response to a public disturbance is per se illegal and violative of the Constitution is pure fiction.
Check out Papachritou v. Jacksonville on the whole void for vagueness thing, which I perceive to lurk in your analysis. The part of Mulvey I was referring to was where they said the Model Penal Code has been superimposed on Sec. 53 to save it from multiple constitutional infirmities. And the Model Penal Code sets a pretty high bar for public disturbances emanating from private property, not the subjective “quality of life” criterion the Provincetown Police apply in clear violation of Papachristou. And police have to have probable cause, which is not a determination they get to make on their own outside narrow circumstances.
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How do you think Barry’s alleged expressive conduct is different from Mulvey’s, or for that matter, protesters camped out in Chicago parks in 68, who were overheard to be loudly protesting the Vietnam War, much “disturbing” Mayor Daley?
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Didn’t we agree at one time, on the idea that the legislature was constitutionally free to recess or adjourn to kill the anti-marriage amendment? I’d say you’ve parted company with ACLU sympathizers like myself on this one.
…..to your first question is, of course, the legislature and the courts. It is certainly not municipal authority, as you contend in your original post.
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I have no opinion as to whether or not the events of that evening were sufficient to give probable cause to enter private property, perhaps they were not. That will be for the judge to decide.
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I don’t see a “clear” violation of Papachristou.
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My point, and my only point, is that you are mis-stating the law by claiming that police have no authority to enter private property without a warrant because of a noise disturbance. Their behavior was not, as you claim, per se illegal.
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If Mr. Scott’s rights were abridged in any way he deserves any and all remedies avaialable to him and I support your advocay on his behalf. I simply disagree with you assertion that a municipal by-law that assings a repetitive fine for noise disturbances is dispositive of the fact that the police overstepped their authority. There is no foundation for that claim.
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As far as same sex marriage and the legislature goes, that is a completley different discussion. Silly to even bring it up really.
If you mean there are some circumstances on which police can enter on private property without a warrant because of a risk to public health or safety, we agree. But the courts jealously protect private property, and no statute can authorize something prohibited by the constitution, as warrantless entry is 99% of the time. There is simply not probable cause to support the “public place” element of the crime in this case. We’re not talking about Barry’s lost 45’s being Marilyn Manson played at 200 decibels here, and it’s his speech not his music that he was arrested for.
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I think Provincetown needs to make nice with Barry Scott because by my reckoning he’s got to be among Provincetown’s biggest (future) creditors. These charges will never go to trial, and the only trial, if there is one, will be over the multiple constitutional violations. That’s when a judge will speak forcefully to this outrageous interference with rights of private property and free speech. In the meantime, it’s up to folks like me and others to cry foul.
And I get arrested, can you be the one to defend me when I argue my 1st amendment rights were violated?
…for his arrest, even if it was speach, was not the reason for entry, so it will likely not affect whether the entry was legal or not. They are two separate issues, although, if the enty is found to be illegal then the arrest will be considered bad fruit and dismissed with no need to even consider the merits (as to Mr. Scott’s criminal defense, of course, and not to any civil action he may bring).
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I disagree that warrantless entry is prohibited 99% of the time simply because of the issue of probable cause – and a noise disturbance is sufficient for probable cause to enter. If someone is found to be causing that disturbance post entry and arrested pursuant to related law that arrest is good. Where problems of the Constitutional variety arise is when people are arrested for other offenses that would not be within the scope of the probable cause for entry. Perhaps that is what happened here. Again, I wasn’t there and I don’t know what happened. But regardless of whether is is Marilyn Manson or Lost 45’s, if it was too loud the police very well may have been within their rights, with probable cause, to walk onto that property withough a warrant to end the disturbance.
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Even Scalia wouldn’t do to the First, Fourth, and Fourteenth Amendments what your analysis would do. You would eviscerate these protections based on a standardless, highly subjective determination of what constitutes a “disturbance” made by undertrained summer cops. That’s really scary man.
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Although I do not wish to be rude, it is fruitless to argue constitutional law with lawyers lacking a strong background in this highly specialized and conceptually abstruse area. You might look for cases illuminating the facial constitutional infirmites in the statute you cite above–spot the amendments that are in play.
….throwing in issues of fact specific to the circumstances of Mr. Scott’s situation and insinuate that your assessment of said facts determine their unconstitutionality and then have the gall to suggest that I don’t understand the intricacies of Constitutional jurisprudence. That is for the judge to decide, not you. I am very well aquainted with probable cause and its relationship to the Constitution and have no doubt as to the veracity of my positon.
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You, however, I would suggest are allowing your moral indignation to cloud your rational thought process.
Am I the only one who has a major problem with all three noise complaints coming from over half a mile away? I would have thought this point would have generated more discussion. I have walked every street in P-town (no jokes please), and I can say that noise doesn’t seem to travel well through the bustling community. A half mile is unheard of, pun intended.
The complainers were likely pricks who intended to harass.
as i said above, it is odd that apparently no one situated between the birthday celebrants and the complainers called in to complain as well. for music to be at complaint levels half a mile away, it should have been absolutely intolerable if not injurious to someone right next door.
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someone in another thread postulated that the complainer, while living 0.5 mile away, may have physically been very close to the party (perhaps next door?), and so didn’t actually call from their own residence. this seems the only plausible alternative explanation to me. i’ll be interested to see what we can see as the police reports and witness testimony come to light.
Hope to get the police reports soon. I can’t get them myself, but I have a few people working to try and get them for me. If anyone has them already, and wants to share, send me an email at salemmaman@gmail.com.
He should have got them at his arraignment.