A toilet is pictured behind worn bars in a jail cell.
The Massachusetts Supreme Judicial Court began its first in-person day back after its long COVID-19 absence Wednesday by hearing case about whether urine is “a filthy substance.”
In February of 2020, Angel O. Perez-Narvaez was arrested for operating a vehicle under the influence. After his arrest, Perez-Narvaez refused to be fingerprinted and police placed him in a holding cell after he refused to be fingerprinted. A state trooper checked on the man five hours later and, according to court documents, “discovered a mess of wet toilet paper and urine inside and outside the cell.” The trooper proposed that Perez-Narvaez be criminally prosecuted for his actions.
Local prosecutors agreed and charged Perez-Narvaez with defacing a building under an 1851 Massachusetts state statute.
The charging law, which sets out a penalty of up to five years in prison, reads as follows:
Section 103. Whoever wilfully, intentionally and without right throws into, against or upon a dwelling house, office, shop or other building, or vessel, or puts or places therein or thereon oil of vitriol, coal tar or other noxious or filthy substance, with intent unlawfully to injure, deface or defile such dwelling house, office, shop, building or vessel, or any property therein, shall be punished by imprisonment in the state prison for not more than five years or in jail for not more than two and one half years or by a fine of not more than three hundred dollars.
Perez-Narvaez moved to dismiss the charge before trial and succeeded. The state appealed, and on appeal, the charges were reinstated. Perez-Narvaez appealed to the Massachusetts Supreme Judicial Court, and on Wednesday, it heard oral arguments about whether urine is sufficiently “noxious or filthy” to satisfy the statutory requirements.
“In many other cultures, urine is considered a medicinal substance,” came the first comment from Justice Elspeth Cypher, who asked for background on the intent of the statute.
During his portion of the 30-minute oral argument, Assistant District Andrew Covington provided the court with legislative history that appeared to underscore the difference between the law’s original intent and its current use.
Covington explained that the law was first enacted in 1851 “in direct response to the temperance movement.” At the time, Covington said, political dissenters would throw bottles filled with coal tar or sulfuric acid (known at the time as “oil of vitriol”) into houses of those who supported the temperance movement. Those substances, explained Covington, would cause “great disaster to furniture, rugs, items in the house,” and, “This statute is a direct result of that.” Covington argued that the legislature then intended to broaden the statute’s reach by including reference to “noxious or filthy substance” —which would include human urine.
Covington remarked that he does not believe there is any ambiguity in the statute, and therefore, there is no need to look back at the original legislative intent. Urine, Covington said, is just as “noxious and filthy” today as it had been in the mid 1800s.
Justice Dalila Wendlandt appeared skeptical about Covington’s statutory interpretation. “They didn’t have urine?” Wendlandt asked about 19th century protesters, ostensibly to make the point that the legislature might have referenced that substance if it meant to criminalize it.
Covington responded that if political dissenters in 1851 had thrown bottles of urine into a home, “the statute would still get you here.”
“Would it cause as much damage? Would it set a house on fire?” pressed the judge.
Covington responded that urine could spread viruses or bacteria. He continued and argued that human urine is “a noxious and filthy substance,” and that the statute should apply, because Perez-Narvaez specifically intended to injure state police property.
Justice Serge Georges Jr. raised concerns about the statute’s broadest applications. “This is a felony right?” Georges asked. “Could someone be charged if they were engaged in public urination on the side of someone’s house?”
Covington responded that such an example, in which a person was “just relieving him or herself” would lack the specific intent required by the statute.
“What’s the evidence of intent here?” asked Georges.
“The specific intent is that he had a toilet to use right next to him,” replied Covington.
“Have you ever been to a Patriots game?” Justice Frank Gaziano asked in response. “If there’s a line at the port-a-potty, and someone decides not to use one and relieves himself near a vehicle or something, is that a crime?”
Covington allowed that Gaziano’s example would not be a crime.
“Let the record reflect,” Gaziano joked, “that my experience was at an Eagles game in Philadelphia, not at a Patriots game.”
“I’m sure it wasn’t you, though,” a fellow justice chuckled.
“No, it wasn’t me,” Gaziano affirmed.
When Rachel Rose, attorney for Perez-Narvaez, took the podium, the mood in the courtroom became markedly more serious. Rose said that the original statute was enacted “under a political terror campaign” almost 200 years ago, and that Covington was suggesting “a vague and nearly limitless interpretation.”
Rose framed the issue before the justices: “the problem is that there’s no standardized definition as to what makes something ‘gross.'” “What rises to the level of ‘disgustingly dirty’ — as anyone who has had roommates knows— varies greatly from person to person,” continued Rose.
Perez-Narvaez’s appeal is occurring at a pre-trial phase, which means that the court will not decide whether the urination in question did in fact violate the statute. Rather, the court will decide whether a reasonable court could convict Perez-Narvaez under the statute.
I and other lawyers who have reached out to me are concerned about the recent revival of this law, apparently dormant for over a century and now being applied to situations so distinct from the residential attacks using dangerous chemicals that prompted its enactment. Whether the Commonwealth has the right to charge any sort of intentional property soiling as a 5-year felony affects not only my client, but all Massachusetts citizens who were under the impression they did not reside in a police state.
[image via Timothy A. Clary/AFP via Getty Images]
Editor’s Note: This piece was updated from its original version to include comment from counsel.
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