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NEWTON POLICE ASSOCIATION vs. POLICE CHIEF OF NEWTON.

DOCKET 03-P-1159.

Dates: June 8, 2004. - June 9, 2005.

Present Armstrong, C.J., Gelinas, & Berry, JJ.
County Middlesex.

KEYWORDS Police, Authority of police chief. Municipal Corporations, Police. Motor Vehicle, Citation for violation of motor vehicle law. Words, "May."

Civil action commenced in the Superior Court Department on April 2, 2003.

The case was heard by Leila R. Kern, J.

Donnalynn B. Lynch Kahn, Assistant City Solicitor, for the defendant.

James F. Lamond for the plaintiff.

ARMSTRONG, C.J. The Newton Police Association (association), representing the police officers of the Newton police department, brought this action for declaratory relief in Superior Court, asking that the court declare invalid an order issued by the police chief of Newton directing officers assigned to traffic enforcement duty at designated high accident locations to issue traffic violation citations to traffic offenders, and to cease issuing written warnings. The association's position is that the order runs afoul of G. L. c. 90C, § 3(A)(1), which, as appearing in St. 1991, c. 138, § 161, reads:

"If a police officer observes . . . a civil motor vehicle infraction, the officer may issue a written warning or may cite the violator for a civil motor vehicle infraction . . . . If the officer issues a citation solely for one or more civil motor vehicle infractions without any associated criminal violations, the officer shall indicate on the citation the scheduled assessment for each civil motor vehicle infraction alleged."(1)

The police chief argues, to the contrary, that the word "may" in G. L. c. 90C, § 3(A)(1), is intended merely to provide authority to police officers to issue either citations or written warnings, and that in the exercise of these grants of authority, the officers are subject to the direction of the police chief. The police chief is vested with inherent authority to direct the operations of the police department, as "t would be practically impossible to organize and efficiently maintain a police department if control of the department were not conferred upon some one with authority to direct the members of the police force as to their respective rights and duties in different sections of the city." Commonwealth v. Pelletier, 264 Mass. 221, 223 (1928). The police chief cites numerous statutes that confer authority on police officers, by use of the word "may," without suggesting that the officers can exercise their discretionary powers free from direction and control by superior officers.(2)

The police chief's argument accurately reflects what is probably a general principle, that statutes so worded presumptively use the word "may" in the sense of "is permitted," or "is allowed," or "is authorized or empowered," to contrast the designated action with one that officers are not permitted to take.

The history of G. L. c. 90C, however, convinces us that the word "may," as used in § 2 and § 3 of that chapter, was meant to confer independence on officers assigned to traffic enforcement duty. Chapter 90C was inserted in the General Laws by St. 1962, c. 789, § 2. Section 2 of c. 90C continued the earlier practice (under G. L. c. 90, § 27, as appearing in St. 1961, c. 592), that the police officer who witnessed a traffic offense would record the violation on a citation form and submit it to police headquarters. Within three days from receipt of the citation, the police chief or a designated officer of at least sergeant grade would decide whether to proceed by way of a written warning, a court complaint,(3) reference to the Registry of Motor Vehicles, or voiding the citation. In 1965, concerned by the "opportunity for subsequent maneuvering or pressure" afforded by the three-day period, then-Governor John A. Volpe, by special message to the Legislature, proposed a "no-fix" traffic ticket bill. 1965 Senate Doc. No. 839. The object of the bill was to require, as a general rule, that the decision to issue a citation (in effect an application for a District Court complaint) be made by the police officer at the time and place of the violation. The crux of the Governor's draft legislation lay in this sentence: "A failure to give the original of the citation to the offender at the time and place of the violation shall constitute a bar to prosecution for such offense, except where the violator could not have been stopped, or where some other circumstance, not inconsistent with the purpose of this section, namely, to cause violators of automobile law to be brought uniformly to justice, justifies the failure." 1965 Senate Doc. No. 839, Appendix A. That sentence, as slightly amended in committee,(4) remains the crux of G. L. c. 90C, § 2, in its present form.(5)

General Laws c. 90C, § 3, upon which the association relies, sets out the detailed procedures for the noncriminal disposition of lesser automobile law violations ("civil motor vehicle infractions").(6) Read in isolation from § 2, the words of § 3(A)(1) ("the officer may issue a written warning or may cite the violator for a civil motor vehicle infraction") could reasonably be read as merely providing authority for the officer to do one or the other. The words of § 3, however, echo and must be read together with § 2. The history of § 2 makes it clear that the Legislature's purpose was to divest police headquarters of control over a decision that, under the statute, must be made by the officer at the scene.

It could be argued for the city (although in fact it is not) that permitting the police chief to restrict the officer's discretion would not compromise the purpose of G. L. c. 90, § 2 -- the "prevention of corrupt manipulation," Commonwealth v. Perry, 15 Mass. App. Ct. 281, 283 (1983) -- because the treatment accorded offenders would be uniform. The argument is not insubstantial -- it respects the spirit if not the letter of § 2 -- but we decline to trench in that manner on the statute's literal meaning. The Legislature in 1965, at Governor Volpe's urging, very deliberately transferred this discretionary decision from the police chief to the officer on traffic control duty. General Laws c. 90C, § 2, was the vehicle they chose for dealing with the evil they perceived, and the judge did not err in declining to amend the Legislature's work.

Accordingly, the judge correctly entered a judgment declaring the police chief's order invalid.

Judgment affirmed.

Footnotes

(1) A "civil motor vehicle infraction," as defined in G. L. c. 90C, § 1, is, subject to certain exceptions, an automobile law violation the maximum penalty for which does not include imprisonment. The "scheduled assessment" is the amount predetermined for listed violations as jointly promulgated by the Chief Justice of the District Court Department and the Registrar of Motor Vehicles. Ibid.

(2) See, e.g., G. L. c. 41, § 98 (officers "may examine all persons abroad whom they have reason to suspect of unlawful design, and may demand of them their business. . . . may disperse any assembly . . . . may enter any building to suppress a riot, etc. . . . may search . . . for a dangerous weapon [emphasis added] . . ."); G. L. c. 140, § 52 ("may enter and inspect [certain] premises . . ." [emphasis added]); G. L. c. 140, § 201 ("may at any time enter [certain premises]" [emphasis added]).

(3) It was not until St. 1982, c. 586, § 2, that G. L. c. 90C was rewritten to decriminalize lesser automobile law violations and provide for the offender simply to remit a designated fine.

(4) See 1965 Senate Doc. No. 1121 and 1965 House Doc. No. 4200, which was enacted as St. 1965, c. 692. The sentence, as appearing in St. 1965, c. 692, § 3, read: "A failure to give the original of the citation to the offender at the time and place of the violation shall constitute a defence in any trial for such offense, except where the violator could not have been stopped, or where the court finds that some other circumstance, not inconsistent with the purpose of this section, namely, to cause violators of automobile law to be brought uniformly to justice, justifies the failure."

(5) The sentence now reads: "A failure to give a copy of the citation to the violator at the time and place of the violation shall constitute a defense in any court proceeding for such violation, except where the violator could not have been stopped or where additional time was reasonably necessary to determine the nature of the violation or the identity of the violator, or where the court finds that a circumstance, not inconsistent with the purpose of this section to create a uniform, simplified and non-criminal method for disposing of automobile law violations, justifies the failure." G. L. c. 90C, § 2, as appearing in St. 1985, c. 794, § 3. The sentence took its present form in St. 1982, c. 586, § 2, which introduced the distinction between lesser infractions, which could be disposed of by mailing in the designated fine (now termed "scheduled assessment"), and which would result in no criminal record, and more serious automobile law violations, which would be processed by criminal complaint.

(6) As recounted in note 3 above, the provision for noncriminal disposition began with St. 1982, c. 586, § 2, and was refined by St. 1985, c. 794, § 3, and again by St. 1991, c. 138, § 161. General Laws c. 90C, § 3, was rewritten by each act.
 

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Chapter 90 Enforcer
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Good work!! Glad to see the Newton PA push this issue... a great win to keep discretion in the Officers hands!! =D>
 

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I'll start the fight on this one...What happened to the days of following orders? Before anyone starts, I know that no one is obligated to follow an "unlawful" order, but this sounds like another example of the tail trying to wag the head. Sounds like the chief was just trying to attack a real problem with more stringent methods. Newton P.A. would get much more from the chief by going with the flow rather than picking this battle. My guess is that there is much more to the story, my gut tells me this issue was a symptom, not the REAL problem...but maybe I'm a little biased :)
 

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Um, verbals?

What other things does the chief babysit on? Lockup 7yr olds for theft of chewing-gum? Left shoe first? Wallet left-rear pocket?
 

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This was a case of a Chief brought in from New York City. Didn't know the local culture, didn't understand Civil service, didn't understand Unions and didn't get a new contract. The wizzbang was going to solve all the ills of Newton with numbers. Maybe he got a nice job in Jersey.

Hate to disagree with you Chief but this wasn't the tail wagging the dog. This was a Chief who took too big a bite of the Sh!t sandwich. You can't alienate everybody in the first couple of months and not expect to have blowback.

The dope simply became frustrated (very quickly in his tenure) and started generating orders because it was easier than explaining why he thought it was a good idea. I am not aware of many organizations that remain healthy in that kind of an atmosphere.
 

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Retired Fed, Active Special
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Chief,
Just imagine J809 under such direction?!?!?!?!(short leash)
:wink:
 

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Chapter 90 Enforcer
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Don't get me wrong.. while I'm all for keeping the discretion with the Officers, I still firmly believe there are alot of Officers out there that need to issue more actual citations than warnings.... and there are even more Officers that need to actually make traffic stops.

How do shitbag fugitives move from place to place? by car! making stops helps to find the shitbags! It amazes me how many people pull someone over and not perform a warrant check on them. Just think, you might let a kiddie diddler or killer go if you don't run 'em. Traffic stops are both reactive and proactive policing. Reactive= A traffic or criminal violation took place so you stop the car. Proactive= The stop halts any further immediate offenses. And check for warrants and observe for drugs, weapons, body parts and other suspicious items in the vehicle.

Who says this?: "You know, Jimmy Hoffa's body is on a truck somewhere out there and someday that truck is going to roll through (your town) center.. then shooook!! you got 'em".

My line: "Nobody drives through my town with a plate light out! That there is what we call a Motor Vehicle Vie-O-lation". "Love the plate lights, its the golden nugget"
 

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It must be nice to work in a place where you actually have time to stop people for plate lights.The last thing im gonna do if I have a few minutes of down time is look for plate lights.
 

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Lately we are so busy im lucky if I have time to take a whiz. A plate light out or missing front plate is a great reason to stop a vehicle. I always right a warning for this to anybody I stop, I do this in case a lawyer tries to argue I only stopped his client because of how he/she looked. I can show by the warnings I have written that I stop all types of people for this V.
 

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pablo";p="67263 said:
Lately we are so busy im lucky if I have time to take a whiz. A plate light out or missing front plate is a great reason to stop a vehicle. I always right a warning for this to anybody I stop, I do this in case a lawyer tries to argue I only stopped his client because of how he/she looked. I can show by the warnings I have written that I stop all types of people for this V.
Good point!!
 

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Chapter 90 Enforcer
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pablo";p="67262 said:
It must be nice to work in a place where you actually have time to stop people for plate lights.The last thing im gonna do if I have a few minutes of down time is look for plate lights.
Like any city or town, It varies, somedays are slower than others. Somedays there is no time for MV stuff. I'm just saying its a great way to find shit and shitbags. I've had a few nice arrests stem from these stops.
 

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pablo";p="67263 said:
Lately we are so busy im lucky if I have time to take a whiz. A plate light out or missing front plate is a great reason to stop a vehicle. I always right a warning for this to anybody I stop, I do this in case a lawyer tries to argue I only stopped his client because of how he/she looked. I can show by the warnings I have written that I stop all types of people for this V.
This is something everyone involved in traffic enforcement should practice on a regular basis, I know officers who have lost cases for not doing exactly this. With all the racial profiling complaints and allegations, it would be inexcusable to lose a motion to suppress and let a criminal free due to ones lack of documentation.

Good post Pablo!!!
 

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RPD931";p="67186 said:
and there are even more Officers that need to actually make traffic stops.
Even less will be making them as often I would guess because now the state is in effect requiring two citations to be written for every stop; the racial collection sheet.
 

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OK RPD931, Let's see; an arrest for a kid with a sword in his back seat (or dirk knife by your interpretation) and maybe (and i stress maybe) two more arrests for sus/rev licenses.

When your ready to step up into the big league and are ready to do some real work, come see me. I'll let you ride shotgun anytime.

God I love busting your balls, stay safe bro.
 

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Chapter 90 Enforcer
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OUCH! BlackOps, that hurt man! :lol: But I can take the ball busting because you're my homey. But at least get the numbers (arrests) right... they're a lot higher than that... geesh... and what about all my OUI's? And the crazy lady where my life flashed before my eyes?

Ride shotgun with you? Well, if you're secret squirrel, would that make me secret chipmunk? :lol: I don't know if I could handle it, you make me laugh too much.

Nice avatar, now only if it had audio I bet he would be screaming "stop resisting".. just like...eh, nevermind. :wink:

Look, they have this emoticon just for you: :twisted:

You be safe too bro!
 
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