VICTORY! On June 23, 2016, the American Civil Liberties Union of Massachusetts successfully defended the rights of a man charged with trespassing in the hallway of mixed-use property after being unable to access emergency shelter during bitter winter cold.

Jessie Rossman, a staff attorney with the ACLU of Massachusetts, said:

"Today's landmark, unanimous ruling has affirmed, in the state high court's own words that 'our law does not permit the punishment of the homeless simply for being homeless.'

"The necessity defense provides a critical safety valve, which allows juries to acquit individuals when they determine that following the law would cause more harm than breaking it.

"This case provides a quintessential example of an instance where the necessity defense is required. Mr Magadini trespassed in the hallway of mixed-use property, but only to escape bitter cold after being denied access to emergency shelter.

"Today's decision confirms that poverty is not a crime in the Commonwealth, reinforces the very purposes of the necessity defense and ensures that people in the Commonwealth have a voice and an opportunity to decide how we as a community are going to address the issue of homelessness."

Commonwealth v. Magadini, a case pending before the Supreme Judicial Court, explores whether and how the defense of necessity applies in the case of a homeless individual who trespasses on private property in order to find safe shelter in winter conditions.
In this case, a homeless person named David Magadini, who could not access an emergency shelter or rent an apartment, trespassed into the hallway of a mixed-use private property to seek warmth and shelter from a bitter winter night in February 2014. Yet, on that occasion and several others, police officers in Great Barrington informed him that he was violating a trespass order instead of seeking to help him. Worse yet, the trial court refused to instruct the jury on the defense of necessity, and Mr. Magadini was convicted.

Together with the Committee for Public Counsel Services, the Massachusetts Association of Criminal Defense Lawyers and Ropes & Gray, the ACLU of Massachusetts filed an amicus brief arguing that in the circumstances of this case, a jury instruction on the defense of necessity was not only warranted, but imperative. Given the gravity of the danger involved and the structural underpinnings of the homeless crisis in America, denying a necessity instruction was akin to the unlawful, ineffective and unfair practice of criminalizing homelessness.



Jessie J. Rossman (ACLU of Massachusetts); Beth L. Eisenberg (Special Litigation Unit, Committee for Public Counsel Services); Chauncey Wood (Massachusetts Association of Criminal Defense Lawyers)

Pro Bono Law Firm(s)

Kirsten V. Mayer, Lauren N. Robinson, Vikram A. Mathrani, Matthew S. Paik, Andrew S. Todres (Ropes & Gray LLP)