force clause in Massachusetts

2024Relying on language in Scione v. Commonwealth, 481 Mass. 225, 229 (2019), the single justice reasoned that rape qualifies as a predicate offense for pretrial detention under the force clause because an element of rape includes the use or threatened use of force.

2024However, in Scione, supra at 232 , we determined that the residual clause unconstitutionally was vague, leaving only two pathways by which an offense not otherwise listed in § 58A may qualify as a predicate offense -- the abuse clause and, relevant here, the force clause.

2011See Commonwealth v. Pagan, 35 Mass. App. Ct. 788, 791 (1994) (not ineffective to eschew manslaughter instruction in case involving murder in second degree and arson, where such alternative might “vitiate the primary theme of the defense” and “sap the force” of claim that she did not set fire).

2002In so finding, the judge concluded that “[ajlthough counsel could have argued that if something happened it lacked the penetration required for rape, as a practical matter, such an alternative argument would likely have sapped the force of the defense that no sexual contact occurred and would have been tactically awkward.” See Commonwealth v. Zangari, 42 Mass. App. Ct. 931, 933 (1997) (not manifestly unreasonable to forgo larceny instruction where the primary defense was misidentification); Commonwealth v. Pagan, 35 Mass. App. Ct. 788, 791 (1994) (not manifestly unreasonable to forgo manslaugh

2026Importantly, "[w]hether actual or constructive force is employed, the degree of force is immaterial so long as it is sufficient to obtain the victim's property against his will." Id., quoting Commonwealth v. Jones, 362 Mass. 83, 87 (1972) (quotation and citation omitted).

2026In Agostini v. Commonwealth, in which the Supreme Judicial Court held that armed robbery is not a predicate offense for § 58A under the force clause, the Court noted that armed robbery may be committed by " force applied to the person" (actual force) or by " an assault putting the person in fear" (constructive force). 497 Mass. 242 , 246 (2026), quoting Commonwealth v. Richards, 363 Mass. 299, 302 (1973) (emphasis added).

2026In Agostini v. Commonwealth, in which the Supreme Judicial Court held that armed robbery is not a predicate offense for § 58A under the force clause, the Court noted that armed robbery may be committed by " force applied to the person" (actual force) or by " an assault putting the person in fear" (constructive force). 497 Mass. 242 , 246 (2026), quoting Commonwealth v. Richards, 363 Mass. 299, 302 (1973) (emphasis added).

2024Interpreting the phrase "physical force" in the context of the Federal ACCA, the United States Supreme Court held that "[t]he adjective 'physical' . . . plainly refers to force exerted by and through concrete bodies -- distinguishing physical force from, for example, intellectual force or emotional force." Johnson v. United States, 559 U.S. 133, 138 (2010).

2024In Scione, 481 Mass. at 229-230 , quoting Commonwealth v. Bernardo B., 453 Mass. 158, 172 (2009), we determined that "[f]orce is not a necessary element of [§ 23A]" for two reasons.

2024See generally Caracciola, 409 Mass. at 654 (rape is "crime of violence"). ii.

2019See Ginther v. Commissioner of Ins., 427 Mass. 319, 324 (1998) (comparing use of language employed within same statute is well-established rule of statutory construction).

2019See Ginther v. Commissioner of Ins ., 427 Mass. 319 , 324, 693 N.E.2d 153 (1998) (comparing use of language employed within same statute is well-established rule of statutory construction).

2019See Mathis , 136 S. Ct. at 2248 ; United States v. Bain , 874 F.3d 1 , 29 (1st Cir. 2017), cert. denied, --- U.S. ----, 138 S. Ct. 1593 , 200 L.Ed.2d 780 (2018).

2016Pointing to cases from Federal courts and the Appeals Court that have concluded that assault and battery on a police officer (not public employee) is categorically a violent crime under the now-defunct residual clause, see, e.g., United States v. Dancy, 640 F.3d 455, 469-470 (1st Cir.), cert. denied, 132 S. Ct. 564 (2011), and Commonwealth v. Colon, supra at 22-23 , the Commonwealth urges us to conclude that the offense is categorically a violent crime under the force clause.

2012See United States v. Booker, 644 F.3d 12 , 20 & n.10 (1st Cir. 2011), cert. denied, 132 S. Ct. 1538 (2012).

2012See United States v. Booker, 644 F.3d 12 , 20 & n.10 (1st Cir. 2011), cert. denied, 132 S. Ct. 1538 (2012).

2004Bd., 421 Mass. 196, 208 (1995), the fact that it did not interpret the regulation consistently diminishes the force of that principle in application to the present case.

2004Moreover, PERAC has placed nothing in the record, as, for example, a memorandum announcing the policy change, contrast Boston Retirement Bd. v. Contributory Retirement Appeal Bd., 441 Mass. 78, 80 (2004), to establish that such a policy change was, indeed, made and applied uniformly thereafter.

2002In so finding, the judge concluded that “[ajlthough counsel could have argued that if something happened it lacked the penetration required for rape, as a practical matter, such an alternative argument would likely have sapped the force of the defense that no sexual contact occurred and would have been tactically awkward.” See Commonwealth v. Zangari, 42 Mass. App. Ct. 931, 933 (1997) (not manifestly unreasonable to forgo larceny instruction where the primary defense was misidentification); Commonwealth v. Pagan, 35 Mass. App. Ct. 788, 791 (1994) (not manifestly unreasonable to forgo manslaugh