A Legal Analysis of The Boston Advertiser/Bomber's Charges
(Let me state this up front: I'm not a lawyer, I'm a law student. Gimme a couple years. This is my opinion, not legal advice or fact. Clear? Clear.)
Background and Media Frenzy
When cartoon caricatures of the popular Adult Swim cartoon Aqua Teen Hunger Force appeared lit up with LED lights on various buildings around Boston, no one took real notice. The advertising campaign was largely a flop, trying to generate interest in their new movie coming out. With no reference to the title, or identifying features to help interested viewers find more info, the lights were largely an in-joke for those who'd seen the humorous late-night 15 minute short cartoon.
That all changed two days ago when some concerned individuals discovered them for the first time, and mistakenly identified the innocuous signs as bombs.
"It had a very sinister appearance," claimed Massachusetts Attorney General Martha Coakley. "It had a battery behind it, and wires."
At their arraignment, she noted, “It’s clear the intent was to get attention by causing fear and unrest that there was a bomb in that location."
Ed Markey, a Boston-area congressman, even suggested, "It would be hard to dream up a more appalling publicity stunt." While I don't prize his imagination, I think we're clear how out of proportion this event grew.
Disregarding the length of time they had been present, and taking a no-holds barred approach to combating terrorism, the police department applied the full force of their bomb squad to detonate one of the devices. All told, the bill totaled more than $750,000.
The two responsible for setting up the light-up signs were taken into custody, and char
ged with two crimes: Disorderly Conduct, and "Possession, Transportation, Use or Placement of Hoax Devices," a felony. You can see the police record here, which I'll be working off of: http://cache.heraldinteractive.com/PDFs/20070202/Arrestreport2.pdf
Do these claims have any merit, or are they a second misguided overreaction?
Disorderly Conduct
The statute, M.G.L.A. 272 § 53, provides:
"...persons who with offensive and disorderly acts or language accost or annoy persons of the opposite sex, lewd, wanton and lascivious persons in speech or behavior... disturbers of the peace… may be punished by imprisonment in a jail or house of correction for not more than six months, or by a fine of not more than two hundred dollars, or by both such fine and imprisonment."
Okay. So, did they do that? To drill down a bit, the case law tells us that a "disorderly" act:
"creates a hazardous or physically offensive condition by any act which serves no legitimate purpose of the actor." Com. v. Feigenbaum (1989) 536 N.E.2d 325
What's a legitimate purpose? This is where it gets dicey. If advertising is a legitimate purpose, they'd be fine. If it's not, they're on the hook. Remember, though, that it need be both disorderly and offensive. What's offensive?
"...conduct which tends to annoy all good citizens… [conduct] most people would find to be unreasonably disruptive and which do infringe on someone's right to be undisturbed… the second prong requires that the crime have a victim and thus subjects potential defendants to criminal prosecution only when their activities have detrimental impact." Com. v. Orlando (1977) 359 N.E.2d 310, 371.
Having sat out for two weeks, it's unlikely the prosecutor could stick "unreasonably disruptive" on them… if it took two weeks for anyone to care enough about it, it seems like it didn't have much impact. It'd also be difficult to say that its offensive based off a three-pixel raised finger. However, if they go by the fact that it shut down major commuter lanes for hours, and scared Bostonians into thinking they were under attack, it might be more troublesome - that'd certainly fit the
"unreasonably disruptive" bill.
What it comes down to: Is setting up light-up advertisements flipping off motorists both offensive and disorderly? This is really up to a judge or jury, but on the fence enough to be a worry.
Possession of a Hoax Device
How about that second charge, "Possession, transportation, use or placement of hoax devices"? That'd be M.G.L.A. 266 § 102A 1/2, a statute that went into effect in 2002, which reads:
"(a) Whoever… uses or places... any hoax device or hoax substance with the intent to cause anxiety, unrest, fear or personal discomfort to any person or group of persons shall be punished by imprisonment in a house of correction for not more than two and one-half years or by imprisonment in the state prison for not more than five years or by a fine of not more than $5,000, or by both such fine and imprisonment."
There's an intent element in there, and while they didn't do it to cause anxiety, unrest, or fear, it's aguable they'd know and want a raised middle finger to cause personal discomfort to some people - remember, they just need to have done one of the list, not all. Still, that'd be a tough point to push - they can likely slip past on this one, and that might be their golden key out. Lets look further, though. What about "hoax"? That word keeps getting thrown around by the media. If it was just the plain meaning of "hoax," they'd be okay - there's no indication they meant to make fake bombs, despite what the attorney general claims. But lets unwrap it: what's a "hoax device"?
"...the term "hoax device" shall mean any device that would cause a person reasonably to believe that such device is an infernal machine." (emphasis mine)
Uh-huh. And what's an infernal machine?
"...the term "infernal machine" shall mean any device for endangering life or doing unusual damage to property, or both, by fire or explosion, whether or not contrived to ignite or explode automatically."
Unless they used Sony batteries, it's not going to go up in fire or explosion. But it doesn't matter what it really is, in this case, it matters what a reasonable person would think. This legal definition shirks the responsibility and sticks it on the jury. Place yourself in the shoes of a typical Bostonian. Would you think this is something that'd endanger you?
If you're familiar with the show, it's laughable to think of it as a danger. Try looking at it differently, then. If it was a angry face, sticking its tongue out, perhaps - something unfamiliar and menacing. Still think it's not scary? Think 12 of your peers would think the same way? If so, they're in for no more than 5 years. Lucky them.
The real clincher comes at the end of the statute, though.
"The court shall… conduct a hearing to ascertain the extent of costs incurred, damages and financial loss suffered by local, county, or state public safety agencies… A person found guilty of violating this section shall… in addition to any other punishment, be ordered to make restitution… for any costs incurred."
I heard one news outlet claiming that it's likely they were bringing charges to have the guys pick up the tab. They must've missed the bit at the end:
"In determining the amount… the court shall consider the financial resources of the defendant and the burden restitution will impose on the defendant."
For self-styled (and self-employed) "artists," it's unlikely they'll be stuck with a $750,000 bill. I don't think that's the rationale behind it. Instead, tack on the fact that the city (mayor, police department, and media) all lost a lot of face overreacting to what amounts to graffiti - being able to shirk the blame on those cold criminals sounds like a nice proposition. If anything, that's the real pressure to convict.
Blowing Up in Their Faces
Bottom line is that while it seems these charges are unfounded, they're more hazardous than a face-value glance would lead us to believe. Unless a media outcry gets these charges dropped, or they manage to plea out of it, they could be in for some hurt. It really didn't seem like the prosecutor was laughing.
posted by Satire @ 12:27 AM
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