Oh, Legality!

A Legal Analysis of The Boston Advertiser/Bomber's Charges

2007-02-02T00:27:00.000-08:00

(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.

Justice is Served

2006-11-13T13:03:00.000-08:00

One judge adds his own spin to the age old story: don't pay your tab and end up washing dishes.

MyWay

The judge later tried a kid who was caught smoking, who he forced to smoke the whole pack.

Holy Intricacies, Batman!

2006-11-13T11:55:00.000-08:00

Undercover is one thing, but no one expects police to dress up as the a superhero detective. This convoluted plot begs the question: was there really no more efficient way for nine police officers to apprehend the suspect?

This Is London

This is Batman's first real-life arrest. Champagne at DC HQ on him.

Earl of Sandwich Loses Claim on Burrito

2006-11-13T07:18:00.000-08:00

Thankfully, a judge has finally tackled the pressing issue of burrito classification. Is it a sandwich? Is it a something foreign entirely? What if you entire case rests on burrito classification? Read on for the ruling.

Yahoo! News

When they mentioned food experts being called in, I couldn't help but picture Emmeril giving his opinion with a BAM!

Colors Red and White Are No-Go for Artist

2006-11-12T13:26:00.000-08:00

You spend your life painting pictures. What if what you paint pictures of is trademarked, or copyrighted? That's exactly the position Daniel A. Moore is in - he paints epic masterpieces based on University of Alabama football. Some lawyers aren't too pleased with this infringement, and are suggesting a judge bar him from using the “famous crimson and white color scheme.”.

New York Times

How do those pesky photographers slip through the cracks? They're basically just stealing copyrighted works to sell newspapers... they reproduce someone's hard work and sell millions of copies. We should crack down on them, then those TV guys that show carchases with trademarked cars without paying a cent to the designers! Those guys contributed a lot, without which that scene wouldn't be possible! And how about those dirty binoculars manufacturers? They get away with making something that just makes it easier to see other people's copyrighted stuff! Any binoculars designed for use in a city or populated area should have to pay a portion of their proceeds to designers.

Harmonica Player Arrested for Copyright Infringement

2006-11-09T23:28:00.000-08:00

A 73-year old man who played the whistlebox in a Japanese bar found himself arrested for copyright infringement. If it helps you sleep at night, he was a repeat offender.

MSN News

Somehow, someone mistook the sounds a harmonica makes for music.

Emergency Alert: Vote for Me!

2006-11-07T14:17:00.000-08:00

What's better than buying a radio ad? Having that ad manditorily broadcast on all available bands! Republican senate candidate Dick Mountjoy did just that, by abusing the Emergency Broacast System.

DailyKos

I think we should give him some leeway, though. His name is Dick Mountjoy.

Do Not Call Does Not Apply

2006-11-06T13:28:00.000-08:00

In violation of laws (as enumerated here) that dictate starting auto-phone calls with the name of the party calling, republican dialers are masquerading as democratic messages in order to slander.

WMUR.com

Some individuals report being spammed with more than 18 identical messages... and of course, they're attributed to the democratic party. Of course, for those who know how to make a penny off it, there's this: How to Sue Autodialers for Fun and Profit

Take a Look at the Flip Side

2006-11-04T16:46:00.000-08:00

This is a fairly interesting article detailing the life of two individuals sentenced under the same judge, and receiving very different judgments. The article clearly puts a negative spin on the proceedings, but it's an interesting read if you step through it looking for the ways it could be just, or the places the reporter characterizes something as extreme when in reality it overlooks the important legal aspect or could be justified entirely with some additional information.

Dallas News

Have fun!

Moo Debuts Mini-Cards

2006-10-24T08:53:00.000-07:00

I thought these were awfully swanky when I saw them for Flickr photos, but now they're open to Skype users, too!

Moo

You can get a free set by punching in the promo code "freebie".

Play Politics, Without the Gritty Aftertaste

2006-10-23T22:44:00.000-07:00

Finally, the internet is used to take the sick addiction of collecting humans to a new level. I am referring, of course, to...

Fantasy Congress (Thanks, Jeff!)

Create your stable and pit them against other players, all without having to go to our nation's most homicide-ridden city (D.C.). The downside is you get to kiss less babies. The upside is you get to kiss less babies.

Hello, Mrs. Robinson!

2006-10-23T19:49:00.000-07:00

In California, a judge dismissed an indecent exposure charge against a 40-year old woman on the grounds the law was gender-specific, and didn't apply to her. The woman was exposing herself to a 14-year old kid to get him to stop making so much noise playing basketball.

My Way News

Please note the final line of the article, which specifies her threat. Her threat, mind you.

Lawyer Invokes the Power of God, Gets Contempt of Court

2006-10-23T19:46:00.000-07:00

A North Carolina lawyer, fed up with a testy judge, calls out for the Lord's assistance during trial. The judge slapped him with two days in jail, revoked his law license for thirty days, and hit him for 70 hours of community service.

My Way News

Here's a tip, in case you didn't catch this one as a 1L: Don't Piss of the Judge.

Interesting Scalia Interview on Abortion Rights

2006-10-23T19:42:00.000-07:00

It's always interesting to hear a Supreme Court Justice speak their mind, particularly on the politically-charged opinions that shape the way the country operates.

MSNBC

It's also interesting to hear a non-elected judge arguing judges should be elected.

Jack Thompson Faces Contempt Charge

2006-10-23T14:37:00.000-07:00

The media's favorite anti-videogame activist, Jack Thompson, may be facing a contempt charge over his meritless profiling of Take-Two Interactive's new title, Bully. He billed it as a "Columbine Simulator" without ever having played it, and Take-Two pulled the carpet out from under him when it released a (relatively) benign game that wound up with a T For Teen Rating.

Gamasutra

You'll note that they are using the sole picture of Jack Thompson the internet contains - I have yet to see another image of him. And, if I may be so bold, I think he looks like Jon Stewart with a white wig (I think both Jack Thompson and Jon Stewart are equally funny, though).

As Expected, Habeas Changes Contested in Court

2006-10-20T09:56:00.001-07:00

Justice department "dismisses" 196 cases, lawyers immediately appeal. Very likely to make it to the supreme court.

Washington Post (Thanks, Steve!)

Judges don't like power being taken away from them. This seems to fall in that category. We'll see how it pans out!

Dick Cheney's Visitor Logs to be Opened

2006-10-19T23:57:00.000-07:00

Vice President Dick Cheney's visitor logs have been ordered open by a federal judge in response to a Washington Post request, in spite of claims of national security.

ABC News

This is sort of like Dick Cheney's Myspace, if you will. He had it set to "private" and is not cool with people he didn't accept as friends being able to see his calendar.

Like Puzzles? Like Scrolls? Earn $2500!

2006-10-19T23:48:00.000-07:00

The Seattle Times and my old geology professor are running a scavenger hunt in Seattle based on the Dead Sea Scrolls. It looks like a blast, and the clues are all available online as they're released (one each day for ten days). If you're up for the challenge, you could be padding your pockets.

The Seattle Times (Thanks, Tara!)

The professor who wrote the clues taught "Rocks for Jocks"... it'll be interesting to see if the difficulty is tougher than "attend class on Friday and I'll give you the answer to a question on the final."

California Candidate Tries Innovative Letter Campaign

2006-10-19T23:36:00.000-07:00

Tan D. Nguyen, GOP congressional candidate, may have been involved in sending out thousands of letters to latino voters, advising them they would be arrested if they attempted to vote.

Yahoo News

This is one of those ideas that looks great on paper, unless that paper is your record.

EU Considering Regulating Youtube, Myspace

2006-10-18T18:00:00.000-07:00

The EU is considering requiring web sites that host video content, such as popular Youtube.com and Myspace.com, to become licensed as a "television-like service".

Times Online

Clearly, they have not visited Youtube to see the primary difference, which is that some things on television are worth watching.

Schools Ban Tag, Enjoyment to Follow

2006-10-18T17:52:00.000-07:00

Citing recess as "a time when accidents can happen," a Boston school has banned tag.

CNN

The ban, of course, will be lifted when genetic modification allows us to breed children pleasantly plump enough to survive the danger zone of recess. In the meantime, we'll have to toughen up the youth with fast-food.