11~2J..2011 15:3\:37


2.0 - 11105






Trial Court of Massachusetts District Court Department

."•.•. '.11.


William P Moran


District Court

50 State Street PO Box 2421 Springfield, MA 01101 (413)748-8600

Holyoke, MA 01040

; 11.""'Holyoke











SP Springfield

Courtroom 1 The undersigned complainant, on behalf of the Commonwealth, on oath complains defendant committed the offense(s) listed below and on any attached pages. COUNT CODE 272/53/F DESCRIPTION DISORDERLY CONDUCT c272 §53 that on the date(s) indicated below the


On 06/15/.20.11 was a disorderly person, in that he or she did, with purpose to cause public inconvenience, annoyance or alarm, or recklessly creating a risk thereof, engage in fighting or threatening, or in violent or tumultuous behavior, or did create a hazardous or physically offensive condition by an act that served no legitimate purpose of the defendant, in violation of Ihe common law and G.t. c.272, §53. . (PENALTY: nol more than $150 fine.)




On 06/15/2011: (1) did willfully and maliciously communicate with, or cause a communication to be made to, a PSAP facility assigned the responsibility of :receiving 911 calls and dispatching emergency response services or transferring or relaying emergency 911 calls to other public or private safety agencies or other such PSAP facilities, which communication transmitted information which the defendant knew or had reason to know was false and which resulted in the dispatch of emergency services to a nonexistent emergency or to the wrong location of an actual emergency; or (2) did willfully and maliciously make or cause to be made 3 or more silent calls or other communications to such a PSAP facility in which the initiating party failed to provide information regarding his or her identity or location or the nature of the emergency, other than information that is automatically transmitted by a communication device or network upon connection with a PSAP. and did thereby cause emergency services to be dispatched 3 or more times, in violation of G.L c. 269, § 14B. PENAL TV: house of correction not more than 2Yo years: or not more than $1000 fine; plus mandatory restitution of any resulting costs, damages and financial loss sustained by any emergency response services provider. Restitution may not be waived, but defendant's financial resources and burden imposed are to "be considered in determining amount, time and payment method, and defendant's ability to pay restitution is to be considered in imposing any fine.

Notice to Defendant: 42 U.S. § 3796gg-4(e) requires this notice: If you are convicted of a misdemeanor crime of domestic violence you may be prohibited permanently from purchasing and/or possessing a firearm and/or ammunition pursuant to 18 V.S.C. § 922 (g) (9) and other applicable related Federal, State, or local laws.





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BACKGROUND This application seeks a criminal complaint charging William P Moran with Willful and Malicious Communication of False Information to Public Safety Answering Points and Disorderly Conduct. It was filed by Captain Peter 1. Higgins in the Holyoke District Court on June 27, 2011. Thereafter, the matter was transferred to Springfield District Court in accordance with Trial Court policy. A criminal show cause hearing was scheduled for July 22,2011. On


July 22, counsel, Attorney David Hoose for the defendant, and Assistant District Attorney David Lemasa for the Commonwealth, appeared and mutually requested a continuance, in the best interest of the parties. The request was granted and the hearing rescheduled for August 29, 2011. The show cause hearing was held on August 29, at which time the defendant filed a Memorandum Of Law in opposition to the issuance of a criminal complaint. At the conclusion of the hearing, the Commonwealth requested time to file its own memorandum. The Commonwealth's Memorandum Of Law Supporting The Issuance Of A Criminal Complaint was

filed on September 9, 2011. The defendant filed Respondent's Reply Memorandum on September 13,2011.


FACTS The Conunonwealth's sole witness at the show cause hearing was Massachusetts State Police Captain Peter 1. Higgins. Captain Higgins' testimony consisted of reading a number of documents into the record. (See Appendix A - Commonwealth Exhibit List.) The defendant presented testimony from Glenn Sullivan, a former Holyoke Alarm Room Operator (from 2003 to 2005). The defendant, Interim Holyoke Fire Department ChiefWilIiam P. Moran (hereafter Chief Moran) also testified. On Wednesday, June 15,2011, while having lunch at Mitchell's Kitchen, on Homestead Avenue in Holyoke, with his brother, Deputy Chief Timothy Moran, and the deputy chief's driver, Firefighter Patrick Shea, Chief Moran saw Holyoke Firefighters Luis Rodriguez and John

DeZess, two of the three firefighters assigned to Engine 6, Homestead Avenue Station, walking
away from the station toward nearby Strum's Deli, apparently in violation of department policy.' Engine 6's driver, Firefighter Anthony Al Gazda, remained at the station while his coworkers went to Strum's to pick up the lunch order.'

'Chief Moran's understanding was that the firefighters were not allowed to leave the station while on duty without first getting the deputy chiefs permission and they had not gotten the deputy chiefs permission before going to Strum's that day. According to Ff. DeZess, walking to Strum's was a normal, ongoing practice during the ten different times he had been assigned to Station 6 in fourteen years. Before leaving the station he told Ff. Gazda that they were going to Strum's to get lunch. Ff. Gazda also believed it was "standard practice to be able to go to a restaurant while on duty as long as it is within walking distance, you have a radio with you, and you get the food to go". On the way to the restaurant, Ff. Rodriguez "noticed the Deputy Chiefs vehicle in the parking lot ... knew the Deputy Chief was in that car for the day, but ... didn't think anything of it". Chief Moran also referred to a policy he initiated requiring all crew members to go to lunch together, bringing the "piece" (truck) with them. 2The testimony established that the optimum number of firefighters for Engine 6 was four but due to cutbacks and staffing shortages, the minimum, three men, were assigned on June 15th. 2

Not long after Deputy Chief Moran (hereafter D.C. Moran) spotted DeZess and Rodriguez and remarked "Uh Oh, Look At This!", Chief Moran went out to the sidewalk and used his department issued ce1l phone to call the Holyoke Fire Department Alarm Room. At 12:25:55, Alarm Room Operator Robert Weller received Chief Moran's call asking Weller to "do [him] a favor, tone an alarm out for Holyoke Mall but only tone it out to Station 6". Given that Chief Moran wanted Weller to tone the alarm to Station 6 only, so that no other stations could hear the bell, Weller doubted the alarm's authenticity.' When Weller suggested additional

details "like maybe an investigation?" ... "at Macy's, first floor?", the Chief agreed, adding the further instruction "no heart attacks or nothing like that". At this point, W eHer knew the call was fake and asked Chief Moran whether he was there (at the Station so he could stop Engine 6 before they rolled out). Responding with "I'm up near Station 6, but ~ just put it out", the Chief ended the call.4 After speaking with the Chief, Weller departed from the. standard operating procedure "for real calls", and, instead of putting it out over all channels, attempted to single out Engine 6 for the false alarm.' At 12:26:47, Weller dispatched Engine 6 for the Holyoke Mall,

3Weller had done this 2 or 3 times before in the 6 years he worked for the fire department, always at the request of officers or deputies and usually as a prank played on probationary firefighters. But never before had he actually sent a company out because "typically [they] don't let them roll on stuff like that". Former dispatcher, Glenn Sullivan recounted 3 occasions during his tenure, when he was directed to give out dispatches for fake calls by a former Chief, a Deputy Chief, and a Lieutenant (which may have been documented training drills on which companies were sent out).

"Chief Moran made this call in the spur of the moment. Characterizations of his actions
(in the record) range from "conducting a training drill", "testing their readiness" , "catching them out of the game to ensure it doesn't happen again", and "disciplining them without disciplining them-off the record" to "teaching them a lesson", "pranking" and "fucking with" the firefighters. SWeller thought he "toned out station 6 over the in house, the PA, at station 6"; he did not recall putting it out over the radio. 3

Macy's, first floor investigation. After ending the call, the Chief went back inside Mitchell's and rejoined D. C. Moran and Ff. Shea. According to Ff. Shea, within moments, he "heard a tone on the radio ... a call for Engine 6 to go to the Holyoke Mall to Macy's for an investigation". Then, the Chief told D.C.

Moran and Shea to come over to the window to watch Ffs. Rodriguez and DeZess run back to the station. They watched for a brief time, but did not see them run by, so the Chief sent D.C. Moran into Strum's to find out why they had not come out. Accompanied by Ff. Shea, D.C. Moran found the two men waiting to pay for lunch and called them outside. When they denied hearing any tone or bell at all, he checked their radios and verified that the radios were indeed working and on the right channel. When they asked what they should do next, the deputy chief

told them to disregard the call and go back inside to get their lunches because "Billy was just fucking (hereafter ring) with you". D.C. Moran then returned to Mitchell's, Ffs. Rodriguez and

DeZess returned to Strum's, paid for lunch and left. Just as they got back outside, Engine 6 pulled into the parking lot, driven by Ff. Al Gazda. Ff. Gazda, heard the "bell" for the investigation at Macy's, Holyoke Mall come in while he was at Station 6 waiting for DeZess and Rodriguez to return with lunch. When they did not come running back after the "bell" came in, he went to Strum's to pick them up. Seeing Engine 6 enter the lot, its emergency lights on, DeZess and Rodriguez ran and jumped on; Gazda drove out of the lot, emergency lights on, headed down Homestead, en route to the mall. On the truck, apparently due (at least in part) to confusion over how the initial call was given out (in house P.A. system vs. radio), the firefighters could not tell whether the response at the mall was for a new separate dispatch or if the Chief


was "still ring with" them." At 12:32:27 p.m., when he saw the truck leave, Chief Moran radioed the Alarm Room with instructions to "te116 they can cancel", he had "taken care of it".' At 12:32:40 p.m., dispatch told Engine 6 to "return, cancel, the Chief took care of it." While Engine 6 was on Homestead en route to the false emergency, a 4-car, domino-like accident occurred when a motorist failed to stop behind 3 others who had stopped while Engine 6 passed the intersection of Homestead and Pynchon with its lights and siren activated. Holyoke Fire Department Rules & Regulations, the Massachusetts General Laws, and the Code of Mass. Regulations collectively contain policies governing fire department employee discipline and provisions regulating departmental drills; they contain no known provisions permitting false calls to discipline firefighters.

DISCUSSION M.G.L. Ch 269 Sec l4B provides (in pertinent part) for the punishment of whoever willfully and maliciously (a) communicates false information to a PSAP, resulting in the dispatch, of emergency services, to a nonexistent or the wrong location of an emergency or

"Alarm room operator Weller thought he had put the call out over the in house P.A. system to ensure that only Engine 6 would hear it. Engine 6 driver, Ff. Gazda, referred to hearing the "bell" for Macy's, Holyoke Mall while at the station. Ff. Shea recalled hearing the call over the radio while having lunch with Chief Moran and D. C. Moran. While at Strum's, Ffs. DeZess and Rodriguez never heard a call on the radio at all, despite that D. C. Moran himself verified that the radios were on and working. "Chief Moran testified that he waived and screamed for them to stop but they seemed to ignore him. Ff Gazda recalled seeing the Chief standing in front of one of the stores in the plaza as he drove Engine 6 out of the parking lot. 5

(b) makes 3 or more silent calls to a PSAP, thereby causing the dispatch, of emergency services, 3 or more times. A PSAP is a facility responsible for receiving 911 calls and dispatching emergency services. Emergency response service providers include not only public resources like 911 call dispatch facilities, police, fire, and public safety agencies, but also all emergency medical service providers, public safety departments, private safety departments and other public and private safety agencies. Violations are punishable by fine or imprisonment but, upon a conviction, the court must also order the payment of restitution for costs, damages, and financiallosses-which may not be waived even if the defendant is fined or imprisoned.

Proceeding under M.G.L. Ch 269 Sec 14B(a), the Commonwealth presented sufficient evidence to establish that Chief Moran knowingly communicated, false information, to a PSAP, which resulted in the dispatch, of emergency services, to a nonexistent emergency. No disputes were raised on these points either during the hearing or by way of the parties memoranda. The question presented is whether the evidence establishes probable cause to believe that Chief Moran's conduct was "willful and malicious" within the meaning of the statute, so that a criminal complaint might be issued. To establish probable cause to support the "willful and malicious" element, and hence the issuance of a complaint, the Commonwealth must present no more than "a statement of accusation which in the eyes of the magistrate is complete in tenus of the elements of the crime and reasonably believable in terms of its allegations." Commonwealth v. DiBennadetto, 436 Mass. 310, 314 (2002) quoting commentary I to Standard 3: 17 of the District Court Standards of Judicial Practice: The Complaint Procedure (1975). Enacted July 31, 2008, M.G.L. Ch 269 Sec 14B does not define "willful and malicious" as used in the statute. Neither I nor counsel has located any legislative history which might guide us


in determining what the legislature intended when it employed those words to describe the mental state required for prosecution under the statute. To date, there have been no cases interpreting the statute. Therefore, to decide whether probable cause exists to support this element of the offense,

the meaning of the words "willful and malicious", as applied to this statute, must be determined. "When a statute does not define its words, we give them their usual and accepted meanings, as long as the meanings are consistent with the statutory purpose. . . We derive words usual and accepted meanings from sources presumably known to the statute's enactors, such as their use in other legal contexts and dictionary definitions." Commonwealth v. Paton, 63 Mass. App. Ct. 215,220 (2005) citing Commonwealth v. Zone Book, Inc., 372 Mass 366,369 (1977). The statute must be interpreted "according to the intent of the Legislature ascertained from all its words" ... "considered in connection with the cause of its enactment, the mischief or imperfection to be remedied and the main object to be accomplished, to the end that the purpose of its framers may be effectuated." Conunonwealth v. McDowell, 62 Mass App. Ct. 15,21 (2004) citing

Commonwealth v. Valiton, 432 Mass. 647,650 (2000). See also Hanlon v. Rollins, 286 Mass. 444,447 (1934); Sullivan v. Brookline, 435 Mass. 353, 360 (2001). "The language of the statute itself is our primary source of insight into the legislative purpose." McDowell, Supra at 21, citing Foss v. Commonwealth, 437 Mass. 584, 586 (2002). The court "must look at the words ofthe statute, always keeping in mind the Legislature's overall objectives, and subjecting [the] analysis to the dictates of reason and cornmon sense." Commonwealth v. O'Neil, 67 Mass. App. Ct. 284, 293 (2006). The Commonwealth argues that for purposes of this prosecution, the term "willful and malicious" should be defined as courts have defined its use in M.G.L. Ch. 265 Sec. 43 Stalking


and M.G.L. Ch. 265 Sec 43A Criminal Harassment.

Since 2000, the Appeals Court has

considered the meaning of the phrase "willful and malicious", as used in those statutes, in only two cases. Specifically, the court has found that "willful" means conduct that is intentional and

by design, as opposed to accidental or mistaken; a defendant acts willfully if he intends his conduct. See Commonwealth v. O'Neil, Id. at 290-291; Commonwealth v. Paton, Id. at 219. The defendant suggests that as used in this statute, the phrase "willful and malicious" has the same meaning as it does when used in the context of many of our statutes involving damage or injury to property, for which both the Supreme Judicial Court and Appellate Court have defined the term. Under this line of cases, "willful" means by design as opposed to thoughtless or mistaken, and an actor only acts willfully ifhe intends both his conduct and its harmful results. Commonwealth v. Schuchardt, 408 Mass. 347,352 (1990), citing Commonwealth v. Welansky, 316 Mass. 383, 397 - 398 (1944); Commonwealth v. Smith, 17 Mass. App. Ct. 918, 920 (1983). Applying the definition of "willful" found in property damage cases, the defendant argues that probable cause can only be found for this element if the evidence is sufficient to establish that Chief Moran intended harmful consequences to flow from his conduct (cal1). Denying that his call either caused or was intended to cause any harmful consequences, the Chief infers that the harmful consequence at issue is the traffic accident that occurred while Engine 6 was en route to the false call. The statute does provide for the payment of costs incurred, damages, and financial losses sustained. So, traffic accidents that occur during the course of emergency responses may well be among the imperfections the legislature intended to remedy through its enactment. Preventing traffic accidents does not, however, appear to be the primary goal of the statute or the main harm the legislation seeks to remedy.


The plain language of the statute suggests that its main objective is to ensure that the services and resources of emergency response providers a) are available when actual emergencies arise and b) do not dwindle or exhaust through unnecessary diversion to false emergencies. The statute seeks to accomplish these goals in two ways. First, by providing for the punishment of whoever causes emergency resources to be diverted, making them unavailable for use elsewhere. Second, by placing the burden of repaying the costs, damages, and financial losses incurred whenever the resources are diverted, squarely on the shoulders of whoever causes the diversion. Stated another way, the harm the statute seeks to prevent is any unnecessary deployment or use of the resources of emergency response providers. An "emergency" is a sudden unexpected happening; an unforeseen occurrence or condition; an unforeseen combination of circumstances that calls for immediate action. Black's Law Dictionary, Fifth Edition (1979). By definition, the nature of an emergency requires an immediate response; with the lives, health, and safety of the public at stake, every minute, even second of delay counts. To be effective as emergency responders, providers of emergency

services must respond almost simultaneous with the call for help." The need for an immediate response, leaves little if any time for dispatchers to screen out cal1s deciding which are real and which are not. The necessity of immediate response and lack of opportunity to scrutinize inherent in the emergency response system, make it unlikely that the legislature would have intended to require that a violator of the statute intend more than that which will occur virtually as soon as

8The immediacy of dispatch here may provide insight into how rapidly the emergency response network generally works. The events detailed in the Facts, took less than 7 minutes to transpire. Chief Moran first called dispatch to request the false alarm at 12:25:55, the conversation lasted 47 seconds. At 12:26:47, dispatch informed Engine 6 of the false call. After a number of other events occurred, the Chief radioed dispatch at 12:32:27 to cancel the alarm.

their false call for services is received. In the Massachusetts General Laws, the charge of Willful and Malicious Communication of False Information To Public Safety Answering Points is categorized under Chapter 269 as a Crime Against Public Peace. Other closely related crimes found in the same chapter and their requisite mental states include: Sec. 13 Sec.13A Sec. 14 False Alarms Of Fire · Whoever without reasonable cause, makes or circulates ... False Reports To Police Officers · Whoever intentionally and knowingly makes ... False Reports As To Location Of Explosives Or Other Dangerous Substance Or Contrivance · Whoever willfully communicates ...

These statutes address harms similar to the harms addressed in Sec. 14B (namely, inaccurate or unauthentic reports of emergencies, unnecessary deployment of emergency response resources, unavailability of resources for real emergencies, and the risk to public safety resulting from each). The mental state required for conviction of each crime appears to be different. Sections 13 and

13A are misdemeanor crimes punishable only by fine or imprisonment for up to one year in the house of correction, or both. Section 14 is a felony offense punishable by fine or imprisonment in state prison for not more than 20 years. However, none of these statutes require the Commonwealth to prove the intent to do a specific harm, which would make the offenses specific intent crimes. Indeed, even though a conviction under Sec. 14 carries a maximum punishment of up to 20 years in state prison, the Commonwealth is still only required to prove that a person acts willfully, in order to establish the mental state required for prosecution. Section 14B is punishable by a fine and imprisonment in the house of correction for up to 2 Y2 years for a first offense, and by fine or imprisonment in state prison for up to 10 years or both for a second or subsequent violation. To require the Commonwealth to prove that the defendant intended the


harmful results that flowed from his actions under Sec. 14B, would raise the offense to the level of a specific intent crime. Given the scheme of these statutes, the similarity of the harms they seek to prevent, and the similar impact that violations of each has on the public peace, I see no reason that would explain why the legislature would intend to require such an increased level of culpability in order to reach the conduct prohibited in Sec. 14B; it is unlikely that the legislature intended to make this a specific intent crime. As used in M.G.L. Ch 269 Sec. 14B, the definition of "willful" that most meaningfully effectuates the intent of the legislature without frustrating its purpose is 'conduct that is intentional and by design, as opposed to mistaken or accidental'. In this case, the Commonwealth presented evidence that Chief Moran's call was intentional and by design, and not accidental or mistaken. Though given an opportunity to rethink or retract his directive when dispatcher Weller asked "are you up there?", the Chief insisted that the false alarm be given out. Therefore probable cause exists to show that Chief Moran's call was "willful" within the meaning of the statute. Turning to M.O.L. Ch. 269 Sec. 14B's requirement that the defendant's conduct be malicious, the case law indicates that the terms "willful" and "malicious" are two separate and distinct elements and the defendant may not be [prosecutedJ unless the Commonwealth establishes proof of both mental states. Commonwealth v. Morris M., 70 Mass. App. Ct. 688, 691, citing Commonwealth v. Peruzzi, 15 Mass. App. Ct. 437, 443 (1983); Commonwealth v. Redmond, 53 Mass. App Ct. 1,4 (2001); Nolan and Sartorio, Criminal Law s.427, at 438 (2001). The defendant argues that the term "malicious" should be defined here as the court has defined its use in the context of damage or injury to property. Those cases define "malicious" as a state of mind involving cruelty, hostility, or revenge. Commonwealth v. Peruzzi, 15 Mass. App. Ct. 437,


439; but not so broad as to include any intention to inflict injury without legal justification. 441; see also Commonwealth v. Annand, 411 Mass. 167 (1991); Schuchardt, at 352; Commonwealth v. Redmond, 53 Mass App. Ct. 1 (2001). Pointing to this definition, the

Id., at

defendant states that his conduct cannot be seen as "malicious" within the meaning of the statute as "there is no suggestion in the evidence that his actions were taken for any reason other than what he has articulated from the moment this investigation began" [disciplining, training, or teaching the fire fighters a lesson]. A review of the record reveals however, that the Commonwealth offered evidence suggesting that there may have been other reasons for Chief Moran's conduct which he did not articulate, including pranking and ring with the fire fighters. The Commonwealth argues that "malicious" has the same meaning here as in Stalking and Criminal Harassment cases; the defendant acts maliciously ifhis conduct was intentional and without justification or mitigation. See O'Neil, Id. at 290-291; see also Paton, Id. at 219. As

defined in these cases, to act "maliciously" does not require that the actors conduct be motivated by cruelty. The Paton and O'Neil courts' interpretation of "malicious" is consistent with interpretations of the term as it is used in the arson statutes. In arson cases, the court has consistently found that "malicious" conduct involves the willful commission of an unlawful act and does not require a showing that the defendant acted with cruelty. Commonwealth v. Niziolek, 380 Mass. 513 (1980). The malice necessary for arson need not be express, it may be implied. The evil disposition required to establish malice in arson "equates with the willful commission of an injurious act without lawful justification of excuse". Commonwealth v. Mezzanotti, 26 Mass. App. Ct. 522,529 (1988) citing Commonwealth v. Lamothe, 343 Mass. 417, 419 (1961). In the context of property damage cases, the courts have declined to define


willful and malicious according to the interpretations in property damage or injury cases, noting that in those cases, it is necessary to prove a specific intent to do harm to the property in order to distinguish the criminal wrong to property from a mere civil injury or trespass to the property, thereby ensuring that criminal prosecution and penalties do not result from actions amounting to no more than civil trespasses to the property (i.e. M.O.L. Ch266 Sec. 127 Wilful and Malicious Destruction of Property). Commonwealth v. McDowell, Supra. at 21. See also Armand, Supra. at 170; Schuchardt, Supra. at 352; Peruzzi, Supra. at 443. I agree with the Commonwealth that Stalking and Criminal Harassment are closely related. However, I do not agree that the definition of "malicious" announced in Paton and O'Neill is necessarily instructive of what the legislature intended when it enacted M.O.L. Ch 269 Sec. 14B. Just one year ago, even after the Paton and O'Neil courts decided that a more modern, less culpable "willful and malicious" conduct will suffice to prove the mental states required for criminal prosecutions under the Stalking and Criminal Harassment statutes, in enacting M.G.L. Ch 258B, the legislature specifically defined the "malicious" conduct required to obtain a civil Harassment Prevention Order as being "characterized by cruelty, hostility, or revenge"; one may not be granted a civil order of protection from harassment unless the conduct complained of involves a state of mind of involving cruelty, hostility, or revenge. Since the conduct that gives rise to the civil order establishes the backdrop for any future criminal violation (and often gives rise to a contemporaneous violation ofM.G.L. Ch 265 Sec. 43A, the criminal law against harassment), it appears that, as far as the legislature'S intent is concerned, one may not be subj ected to criminal prosecution for Criminal Harassment unless their conduct has evidenced cruelty, hostility, or revenge.


Turning, to the language of the M.G.L. Ch 269, Sec. 14B itself for insight into the intent of the legislature, the reasons for its enactment, and the main objective to be accomplished, Section 14B(b) punishes whoever willfully and maliciously makes repeated silent calls to a PSAP which repeatedly cause emergency services to be dispatched. Under Section 14B(b), a person who makes such calls is subject to prosecution despite the fact no words are spoken conveying false (or any other) information, and the silent caller suffers the same punishments as a caller reporting false information. Since, by definition, a silent caller speaks no words which might provide a insight into the caller's state of mind, in any prosecution under this section, the Commonwealth is unable to present any direct evidence of malice. A prosecution under this section, can therefore only be brought, if the proofrequired to establish that the caller's state of mind was "malicious" is inferred from the fact that the calls are repeatedly made. To prove that the defendant's conduct was "malicious", the Commonwealth can only present evidence that the calls were made "intentionally and without legal justification or mitigation". This definition is also consistent with "malice" as defined in arson cases--not requiring a showing that the defendant acted with cruelty-implying malice by equating it with the willful doing of an injurious act without lawful justification or excuse. See Niziolek, Mezzanotti, Lamothe, Supra., citations omitted. Sections 14B(a) and 14B(b) offer alternate theories under which the crime of Willful And Malicious Communication Of False Information To Public Safety Answering Points may be prosecuted. The harm at issue in M.G.L. Ch 269 Sec 14B does not involve a question ofa civil

trespass to property. Therefore, unlike statutes involving criminal prosecution for damage or injury to property, there appears no reason that proof of a more culpable mental state is necessary


in order to avoid the injustice of subjecting a defendant to criminal prosecution for a mere civil wrong. Given these factors and the plain language of the statute, I can see no reason why the legislature would have required a more culpable mental state to prove the crime where false information is communicated under section (a) than is required to prove the crime where silent calls are repeatedly made under section (b). For all of the above reasons, I believe that in requiring that conduct be "malicious" for purposes of prosecution under M.G.L. Ch 269 Sec 14B(a), the legislature intended that the Commonwealth prove only that the defendant's conduct was 'intentional and without legal justification or excuse'. The evidence that Chief Moran made

the call for the false alarm despite his specialized training and experience and his understanding that neither Fire Department Regulations, the Massachusetts General Laws, or the Code Of Massachusetts Regulations contain any provisions allowing false calls to be made to discipline fire fighters is sufficient to show that his conduct was intentional and without legal justification or excuse. Therefore the evidence establishes probable cause that Chief Moran's call was made "maliciously" within the meaning of the statute. DISORDERLY CONDUCT Under M.G.L. Ch. 272 Sec. 53 a person commits the crime of Disorderly Conduct if, he (a) with purpose to cause public inconvenience, annoyance, or alarm, or recklessly creates a risk thereof, (b) engages in fighting or threatening, or in violent or tumultuous behavior, or creates a hazardous or physically offensive condition (c) by an act which serves no legitimate purpose of the actor. See Model Jury Instruction 7.150, Disorderly Conduct. As to clause (a), the "public" requirement is met if the defendant's actions were "reasonable likely to affect the public, that is, persons in a place to which the public or a


substantial group has access", and, a person acts "recklessly" when "he consciously ignores, or is indifferent to, the probable outcome of his actions-if he knew, or must have known, that such actions would create a substantial and unjustifiable risk of public inconvenience, annoyance or alarm, but he chose, nevertheless, to run the risk and go ahead". The law "prohibits any conduct that creates a hazard to public safety or a physically offensive condition by an act that serves no legitimate purpose of the actor." Id., Supplemental Instructions. It entails intentional conduct tending to disturb the public tranquility, Commonwealth v. Alegata, 353 Mass. 287, 303 - 304 (1967), but excludes activities which involve a lawful exercise of a First Amendment right or serve some other legitimate purpose of the actor. Commonwealth v. Feigenbaum, 404 Mass. 471, 474 (1989) citing Commonwealth v. A Juvenile, 368 Mass. 580, 599 (1975). See also Comm v. Zettel, 46 Mass. App. Ct. 471 (1999). Here, the Commonwealth offered no evidence to suggest that Chief Moran engaged in any fighting, or threatening, or violent or tumultuous behavior. Neither party raises any issue as to whether his conduct constituted a lawful exercise of a First Amendment right. Thus, in order to establish probable cause, the Commonwealth must show that Chief Moran (a) intending to cause public inconvenience, annoyance, or alarm or recklessly creating a risk of public inconvenience, annoyance, or alarm (b) performed an act which served no legitimate purpose of his (c) creating a hazardous or physically offensive condition. The evidence establishes probable cause to believe that Chief Moran created a hazardous condition. The hazardous condition created was having a fire engine and personnel rushing along a public street in an effort to respond with immediacy to an alarm. The Chief created this

condition when he called the alarm room operator and instructed him to "tone an alarm out for


Holyoke Mall but only tone it out to Station 6" ... "just put it out".

As the Commonwealth

argues, Chief Moran's knowledge and experience place him in a special position to appreciate the hazards inherent in dispatching firefighters and fire fighting equipment to the streets. The evidence establishes probable cause to believe that Chief Moran either intended to cause or recklessly created

a risk

of public inconvenience, annoyance or alarm,

The Chief

intended that his call would cause DeZess and Rodriguez to instantly drop their business, corne running out of Strum's, through the strip mall past Mitchell's Kitchen, down Homestead Street headed back to the station. It is hard to imagine how one could intend to make a public spectacle

of two alarmed firemen (on the one hand) without intending to alarm the public (on the other). The sight of these firemen abandoning their lunch and running to get to their station, could certainly cause considerable alarm among members of the public not privy to the Chiefs plan. Too numerous to mention are the risks of public annoyance, inconvenience and/or alarm that arise when otherwise urgently needed and often lifesaving emergency response resources are needlessly placed beyond the reach of those with real emergencies; when the public is forced to attempt to react, yield and give way to emergency responders clamoring down the street with lights and sirens activated; when a traffic accident occurs along the route; and, when the public becomes aware the circumstances of the false alarm-- all initiated by the Fire Department's Chief. As the Chief of the Department, then lunching with the Deputy Chief, Moran was in a unique position to know that DeZess and Rodriguez were not the only firefighters who would hear the dispatch, and that Engine 6's driver would also receive the call and respond. All these

facts and circumstances establish probable cause to believe that Chief Moran either purposely caused public inconvenience, annoyance, or alarm or that, in the haste of making the call, he


disregarded the substantial and unjustifiable risks of creating public inconvenience, annoyance, or alarm. The final question to be answered is whether the Chiefs call for the false alarm served any legitimate purpose of [his]. The Commonwealth's description of this element of proof eliminates the phrase of the actor from the definition. Omitting the phrase suggests that the Chiefs motives for acting bear no weight on the inquiry into whether his actions serve any legitimate purpose. This is a more narrow reading than either the plain wording of the statute or the case law suggests. The defendant's reading of Feigenbaum, suggests (on the other hand) that a defendant's conduct will be exempted from punishment under the statute simply because the defendant advances a claim that his conduct serves a legitimate purpose (i.e., involves a lawful exercise of a First Amendment right or political expression), regardless of other facts that might be in evidence to refute that claim. I do not read the case law that broadly. In Feigenbaum, "the Commonwealth offered no evidence to show that the defendant's actions were taken without legitimate purpose," or to refute the defendant's claim, and the Commonwealth's failure to do so

was outcome determinative. Supra, citations omitted. I also read Commonwealth v. Zettel more narrowly than the defendant. In Zettel, notwithstanding a mother's double parking her car in the road, blocking traffic and causing a traffic tie up, the court overturned her conviction on the grounds that her actions were in furtherance of [her] legitimate purpose. In that case, the legitimate purpose advanced was to enable her to pick up her young son from school, which she indeed was doing at the time. Query whether the outcome in Zettel would have been different if, for example, she claimed that her 'legitimate' purpose was to pick up her son but the fact finder found that she had no son, would not her purpose be illegitimate? If Zettel is to be interpreted as


broadly as the defendant's reading suggests, any claim of legitimate purpose, absent facts or circumstances to corroborate that claim, would be enough to defeat the statute. If an untruthful (illegitimate) claim is enough to defeat this portion of the statute, then the third element, clause ©), would be rendered meaningless as virtually no conduct, regardless how egregious or illegitimate, would fall within the purview of the statute. In this case, the Chief has suggested that his actions were in furtherance of his legitimate purposes to train, informally discipline, and/or teach a lesson to his men. A fact finder could decide that the purposes claimed by the Chief are not legitimate. In addition, the evidence on the point is disputed. The Commonwealth produced evidence which tends to suggest that his motives or purposes might have included pranking and/or "ring with" the firefighters. Ifbelieved, this evidence could establish that Chief Moran's actions served no legitimate purpose. The inquiry into whether the Chiefs actions served a legitimate purpose, whether objectively or subjectively measured, is a question of fact. Ultimately, it is for the finder of fact to decide what that real impetus was for his conduct, and whether given that impetus, his actions were in furtherance of a "legitimate" purpose. To make a finding that no probable cause exists to

support this element of the offense, would require me to find that all of the above motives or purposes for Chief Moran's call are legitimate as a matter oflaw. I do not believe the law or the

evidence in this case supports such a finding. Therefore, I find the evidence sufficient to establish probable cause to believe that Chief Moran's call instructing dispatcher Weller to tone out the alarm for Holyoke Mall to Station 6 served no legitimate purpose of [his].


DECISION As to Count 1, the allegation of Willful And Malicious Communication With Public Safety Answering Points, I find that probable cause exists to support the elements of the crimelissuance of a criminal complaint. The complaint will be issued As to Count 2, the allegation of Disorderly Conduct, I find that probable cause exists to support the elements of the crime/ issuance of a criminal complaint. The complaint will be issued.

November 22, 2011


J 16vJ:w;

Barbara Y. Burton, Esq. Assistant Clerk Magistrate Springfield District Court




Report of Captain Peter 1. Higgins Mass State Police Detective Unit Hampden Memorandum of Priscilla Chesky Statement of John DeZess Statement of Luis Rodriguez Statement of Anthony Al Gazda Statement of Patrick Shea Statement of Robert Weller Transcript of Dispatch Calls Motor Vehicle Crash Police Report Operator Information Sheet


4. 5.





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