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Urine contempt! Prison pee prohibition captivates top Massachusetts court

The justices appeared dubious that an antiquated 1851 law applies to urinating through the bars of a jail cell.

BOSTON (CN) — The Massachusetts Supreme Court spent a half-hour Wednesday morning arguing about urine — specifically, whether a 170-year-old law banning temperance-movement protests applies to a man who was put in a holding cell for driving drunk and urinated through the bars onto a hallway.

Angel Perez Narvaez was charged under an 1851 statute that criminalizes defacing a building with “oil of vitriol, coal tar or other noxious or filthy substance.” The law was enacted in response to a rash of incidents in which 19th century anti-temperance activists threw coal tar and sulfuric acid into the homes of temperance supporters.

Could that same rule be applied today to peeing indiscriminately in a jail? Justice Dalila Wendlandt was dubious. “Why do you think they were throwing coal tar and oil of vitriol into people’s homes rather than urine?” she asked Andrew Covington, the assistant district attorney.

“Those were the items that were popular at the time,” Covington answered. “Those were the items that were available to them.”

“They didn’t have urine?” Wendlandt asked.

“Have you ever been to a Patriots game?” Justice Frank Gaziano inquired. “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 said that was a different case because there was no intent to cause property damage.

“Let the record reflect,” Gaziano added, “that my experience was at an Eagles game in Philadelphia, not at a Patriots game.”

Defense attorney Rachel Rose complained that under the prosecution’s broad interpretation, “causing nearly any sort of mess in Massachusetts can carry a five-year prison sentence.”

Narvaez was arrested in Northampton in early 2020. When the arresting officer tried to read him his rights, Narvaez was belligerent, screaming, “I hope your mother dies of cancer” and “you should have been killed in Afghanistan.” At the police station, he refused to take a breath test or be fingerprinted, and he was put in a holding cell where he urinated on the floor and through the cell bars.

Police responded by calling a hazardous waste remediation company to perform an environmental cleanup and then arresting Narvaez under the 1851 statute.

A trial judge threw out the charge on the grounds that the law didn’t apply, but the Appeals Court reversed and said that urine is a “noxious or filthy substance” because it is “disgustingly dirty.”

The Appeals Court cited cases from New York, Louisiana and Hawaii holding that urine is noxious — although the Hawaii law defines noxious more specifically to include “any stink bomb or … offensive-smelling substance.”

But Rose argued that allowing police to arrest someone for doing something filthy gives them unlimited discretion and could lead to disproportionate enforcement against minorities.

“There’s no standardized definition or accepted and well-understood meaning as to what makes something gross,” she told the justices. “What rises to the level of disgustingly dirty is, as anyone who has had roommates knows, something that varies greatly from person to person.”

Justice Serge Georges Jr. was doubtful. “Are we really at the point of saying that we can’t agree that throwing urine somewhere where it shouldn’t be is filthy?” he asked.

But Justice Elspeth Cypher wasn’t so sure. Urine “is not always to be considered inherently noxious,” she said. “In many, many areas of medicine and in other cultures, urine is considered a medicinal substance.”

The case will ultimately turn on whether the justices think the inclusion of coal tar and oil of vitriol in the statute means that it should apply only to other industrial chemicals, as well as whether the police had probable cause to believe that Narvaez peed where he did to make a statement rather than because he was uncontrollably drunk.

Although this case is unusual, it occasionally happens that laws written in another century pop up with a surprising application, said Kevin Underhill, a litigator at Shook, Hardy & Bacon in San Francisco who is the author of "The Emergency Sasquatch Ordinance," a book about obscure laws. 

For instance, the U.S. Constitution allows Congress to issue “letters of marque and reprisal” authorizing privateers to seize enemies’ vessels. This provision hasn’t been used since 1815, but a bill introduced this past February would revive it to allow someone to steal Vladimir Putin’s private yacht.

The Guano Islands Act of 1856 allowed private individuals to make unclaimed islands part of the U.S. if they found bird poop there that could be used to relieve a 19th century fertilizer shortage. This law ended up playing a crucial role in World War II because the U.S. used it to acquire jurisdiction over the Midway Atoll.

Also, many states still have laws on the books that prohibit wearing masks in public, which were adopted during the Reconstruction era in response to the Ku Klux Klan. This arguably created a problem during the pandemic — although no one appears to have been prosecuted for following the CDC guidelines.

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