Judicial relief: Court concludes urine is not 'noxious or filthy'

The Supreme Judicial Court ruled today that a man facing OUI charges can't also be charged with defacing a police lockup with a "noxious or filthy substance" for having urinated all over the floor and through the bars of his cell, because the law used to charge him was aimed at pre-Civil War anti-temperance protesters and they didn't hurl bottles of urine through windows at the homes of people fighting demon rum.

The ruling involves a guy who got really pissed off when arrested for OUI by state troopers in Northampton around 2:20 a.m. on Feb. 10, 2020 - as he was being put into a cruiser, the court summary states, he yelled at one of the troopers: ""I hope your mother dies of cancer," "I hope you die pig," and "you should have been killed in Afghanistan."

Angel Perez Narvaez was placed in a holding cell overnight. Around 7 a.m., a trooper checking on found he had thrown toilet paper all around the cell and "had urinated on the floor both inside and outside of his cell" - and that since the cell had a working toilet, he obviously did so on purpose. Troopers called in a cleanup company specializing in hazardous spills to clean up the resulting mess - and troopers added a charge of vandalism with "a noxious or filthy substance" - which carries a maximum sentence of five years in prison.

Perez's lawyer moved to have the vandalism charge dropped, the judge in the case agreed, but the Massachusetts Appeals Court disagreed and reinstated it. Today's ruling by the state's highest court, however, tosses it for good.

The law cited by State Police refers to two specific substances - coal tar and oil of vitriol - but does not then define the "other noxious or filthy substances," the tossing of which it also criminalizes, the court says.

To figure out whether urine fits into that category, the court first delved into the history of the law: It was passed in 1851 in response to anti-temperance protesters making their case by hurling foul-smelling, sticky coal tar or dangerous oil of vitriol - concentrated sulfuric acid - through windows of the homes of people fighting for prohibition. Back then, apparently, nobody thought to hurl bottles of urine.

The court then turned to the modern-day Massachusetts Oil and Hazardous Material List - which lists both coal tar and sulfuric acid, but not urine. So strike two.

Strike three comes from the legal principal of ejusdem generis, which translates as "of the same kind or class," and which is a way courts try to determine whether a law that starts with specific items, then trails off into a generic term, applies to specific items not actually referenced by the law.

In this case, the question becomes whether urine could be included in the 1851 law's listing of "oil of vitriol, coal tar or other noxious or filthy substance" because it is somehow similar to the first two specific items. The court concluded: Nope.

Urine is neither listed on the Massachusetts Oil and Hazardous Material List nor similar substantially in form to either of these two substances. ...

Accordingly, we hold that under the statutory canon of interpretation of ejusdem generis, the more specific statutory terms of "coal tar" and "oil of vitriol" necessarily were intended to limit the more general term "other noxious or filthy substance." ... See also Banushi, 438 Mass. at 244. Thus, where we hold that urine is not a noxious or filthy substance within the context of § 103, the criminal complaint against the defendant undoubtedly lacks probable cause.

In a closing footnote, the court noted its ruling "is a narrow one," applying specifically to urine under one specific law.