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Supreme Judicial Court of Massachusetts Ruling: “Homeless People May Contest Trespassing Arrest If They’re in Harm’s Way” WHICH IS ALWAYS TRUE

June 26, 2016



SJC says homeless may contest trespass arrest if in harm’s way

BOSTON, MA - 3/16/2016: A homeless person lays on the sidwalk covered with a blanket on Hudson Street and Kneeland Street in Chinatown, Boston. (David L Ryan/Globe Staff Photo) SECTION: METRO TOPIC stand alone photo

A homeless person on the sidewalk at the intersection of Hudson and Kneeland streets in in March 2016 in Boston’s Chinatown.

Homeless people arrested for trespassing on private property can challenge the criminal charges on the grounds they would face life-threatening danger if they stayed outside during harsh weather conditions, the state’s highest court ruled Thursday.

A unanimous Supreme Judicial Court ruled that homeless people can invoke the “necessity defense’’ in hopes of convincing a judge or jury to acquit them of criminal trespassing charges.

“Our law does not permit punishment of the homeless simply for being homeless,” Justice Geraldine S. Hines wrote in the decision. “The necessity defense allows a jury to consider the plight of a homeless person against any harms caused by a trespass before determining criminal responsibility.”

The court ruled in the case of David Magadini, 69, who was arrested by Great Barrington police for trespassing on three properties in the Berkshire County town in February, March, April, and June 2014.

The properties included two mixed-use buildings and SoCo Creamery, an ice cream shop, the ruling said.

Each property owner had obtained no-trespassing orders against Magadini, who testified he once had been banned from the local homeless shelter and used the street address of a gazebo located behind Great Barrington Town Hall as his residence to register to vote, the court said.

At his 2014 trial in Southern Berkshire District Court, Magadini asked that the jury be instructed to consider acquitting him on the grounds that following the law would have caused more harm than breaking it.
Judge Frederic D. Rutberg denied the request, the ruling said.

The justices ordered a new trial for Magadini on six trespassing charges, but upheld his conviction for trespassing at SoCo Creamery on June 10, 2014.

“It’s a landmark ruling,” said Magadini’s appellate attorney, Joseph N. Schneiderman.

The homeless “deserve to have a jury consider whether necessity justified their conduct, and the jury may balance that,” he said.

Prosecutors had argued that Magadini couldn’t assert the necessity defense because he failed to offer evidence he had exhausted other options, such as going to a homeless shelter in Pittsfield or seeking reentry to the homeless shelter in Great Barrington.

The Supreme Judicial Court rejected this argument, saying it was “not prepared to say as a matter of law that a homeless defendant must seek shelter outside of his or her hometown in order to demonstrate a lack of lawful alternatives.”

In a footnote, however, Hines wrote permitting the necessity defense won’t “condone all illegal trespass by homeless person.”

“It simply allows a jury of peers to weigh the ‘competing harms’ to determine criminal responsibility,” she wrote.

At his sentencing, Magadini was ordered to serve concurrent jail terms of 30 days on all counts, but remained free during the appeal process.

Because the SJC upheld one of the convictions, Magadini will be notified that he must serve his sentence for that offense, said Berkshire District Attorney David F. Capeless, whose office handled the prosecutions.

He said prosecutors have not decided whether to retry Magadini on the other charges.

Mark K. Leahy, executive director of the Massachusetts Chiefs of Police Association, said the decision probably would not change how police officers enforce trespassing laws.

“We certainly understand the need to be compassionate in dealing with the homeless, but we recognize we have to weigh that with the rights of the property owner,” Leahy said.

“Frankly, those discussions are most appropriately held in court,” he added.

Jedd L. Hall, who represented Magadini at his trial, said more trespassing charges have been levied against his client since he launched his appeal. He said he wants Magadini to get help.

“He has not, as far as I know, received any help,” Hall said. “Prosecuting him is not going to make a difference in my opinion.”

Kelly Turley, director of legislative advocacy at the Massachusetts Coalition for the Homeless, praised the justices for examining Magadini’s actions against the backdrop of his homelessness.

“As any one of us likely would do in similar circumstances, he found warm places to stay even though he was not welcome there in order to survive in a harsh New England winter,” she said.

John R. Ellement of the Globe staff contributed to this report. Laura Crimaldi can be reached at


Homeless people are always at risk which is life threatening when on the street.  This is an oxymoron because there does not have to be icy cold weather for their lives to be threatened and aside from this  summer heat can be as dangerous.  The idea that there is a specific time when one is more vulnerable and able to protect oneself from exposure is a personal matter.  What is life threatening for a baby and her mother is distinctly different from a person who served as a veteran, or who has survival skills.  Whether one is ill or has mental and social issues that preclude her from seeking care or a person who is older and at risk by virtue of their health ]makes this decision as remote from the crux of the matter as possible.  NONE ARE SAFE IN HARM’S WAY ON THE STREET.

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