On December 23, 2009 the Massachusetts appeals court upheld a Disorderly persons charge against an individual despite his contention that he was exercising his freedom of religion. In COMMONWEALTH vs. MICHAEL A. MARCAVAGE 76 Mass.App.Ct. 34 (2009), the court summarized the facts as “The defendant, a street evangelist, was arrested on Halloween night, 2007, in the city of Salem and charged with disorderly conduct, G. L. c. 272, § 53. He was convicted following a bench trial in the District Court, and argues on appeal that (a) the evidence was insufficient; (b) he received inadequate notice of the Commonwealth’s theory of the case; and (c) the *35 confiscation of a megaphone by police violated various State and Federal constitutional protections. We affirm.”
In their holding they stated “General Laws c. 272, § 53, proscribes, inter alia, engaging in *38 “tumultuous behavior.” Commonwealth v. Feigenbaum, 404 Mass. 471, 474 (1989). While susceptible to multiple meanings, see Commonwealth v. Sholley, 432 Mass. 721, 727-728 (2000), “tumultuous behavior,” for the purposes of § 53, includes the refusal to obey a police order. See Commonwealth v. Sinai, 47 Mass. App. Ct. 544, 548-549 (1999). There, the defendant, angry at being forced to pay a parking fee, refused a police order to leave the area; pounded the steering wheel of his car and shouted obscenities; attracted a large crowd of onlookers; forced traffic to be rerouted; and resisted attempts by police to take him into custody. This behavior, the court concluded, amounted to “tumultuous conduct.” Id. at 549.
The facts of the present case require a consistent result. The evidence supports the inference that the defendant, by refusing the police order to stop using the megaphone, created the same sort of threat to public safety occasioned by the defendant’s conduct in Commonwealth v. Sinai, supra. Indeed, if anything, the danger was far greater here in view of the very large crowds involved, the likely widespread public intoxication, the history of criminal conduct on Halloween in Salem, and the intensity of the physical altercation between the defendant and police.
Bolstering our conclusion that the defendant’s conduct amounted to tumultuous behavior is the fact that there was evidence that the defendant, by disobeying the order to stop using the megaphone, had engendered hostility toward police and disrespect for their authority among the crowd. Precisely the same factors were cited in Commonwealth v. Richards, 369 Mass. 443, 446-448 (1976), in concluding that the defendant had engaged in tumultuous behavior. Likewise, in Commonwealth v. Carson, 10 Mass. App. Ct. 920, 921 (1980), we relied upon the fact that the defendant’s conduct “attracted approximately 50 people, some of them laughing or yelling abuse at the police,” in concluding that the defendant properly had been convicted of being a disorderly person under § 53. The defendant’s actions here, like those of the defendants in Richards and Carson, exposed both the police and the public to danger by reducing the ability of police to maintain order. See Commonwealth v. Mulero, 38 Mass. App. Ct. 963, 965 (1995) (defendant engaged in tumultuous behavior when he flailed his hands “in an agitated and belligerent manner while berating [the officer] with loud profanities”).
Finally, while the defendant argues otherwise, we conclude that the police had ample authority to order the defendant to stop using the megaphone once they determined that such conduct posed a public safety risk. Within the scope of their community caretaker function, and under the general power of arrest conferred on police by G. L. c. 41, § 98, [FN7] police have authority to take reasonable protective measures whenever public safety is threatened by acts that are dangerous, even if not expressly unlawful. See, e.g., Commonwealth v. Bates, 28 Mass. App. Ct. 217, 219 & n.2 (1990) (emergency or “community caretaker” exception authorizes police to make otherwise unlawful entries or searches in certain emergencies “to protect or preserve life or avoid serious injury”). As the judge specifically found, the police exercised that power with admirable restraint on the night of the defendant’s arrest. Several government witnesses testified that the defendant’s use of the megaphone cultivated both fear and anger in the very large crowd, which implicated legitimate safety concerns.
Contrary to the defendant’s claims, we find nothing in the record to support the inference that the decision to curtail the defendant’s use of the megaphone was in any way connected with the content of his speech. See Ward v. Rock Against Racism, 491 U.S. 781, 791 (1989). Indeed, as the defendant concedes, similar limits were imposed on at least one other nearby group. It is also *40 significant to note that the police order by no means prevented the defendant from disseminating his message; rather, it was directed only at the manner of the defendant’s delivery. See Clark v. Community for Creative Non-Violence, 468 U.S. 288, 293 (1984) (manner restrictions in public spaces permissible provided they are content neutral, serve a significant government interest, and leave open alternative channels of communication). Moreover, the restriction was imposed in direct response to the changing conditions during the evening. See Freedman v. Maryland, 380 U.S. 51, 58-59 (1965) (describing procedural safeguards required to justify any prior restraint on potentially protected speech). Both of these factors militate in favor of finding the police action lawful as a measured and appropriate response to a bona fide public safety threat.
The defendant argued that his freedom of religion was infringed by Police. The Court stated in its holding that “While his underlying conduct, particularly dissemination of his religious message, may have enjoyed First Amendment protection, that protection did not entitle him to disregard police commands reasonably calculated at ensuring public safety amid potentially dangerous circumstances. Moreover, the police-imposed limits were content neutral, and no more restrictive than necessary to protect the public. The defendant’s conviction, therefore, transgressed no constitutional limits, and was otherwise proper in all respects.”
Attorney Ronald. A. Sellon