At about 7:30 on Tuesday morning a man at the gas pumps of the Cumberland Farms at 41 Main Street in Kingston was, according to police, set upon by a stranger who began shouting racial slurs at him and then charged. The man was kicked, struck and knocked to the ground. He was left with what police described as a suspected compound fracture. Store video, police say, matches his account.
Gary Phillipo II, 46, of Carver, was arrested at the scene. At the hospital afterward, police say, he continued to shout profanity and racial slurs at officers and staff. He is charged with assault and battery with a dangerous weapon causing serious bodily injury, assault and battery to intimidate resulting in bodily injury, and disturbing the peace. Police describe him as having “a long history of violence.” He was held after arraignment and is due back in court next month. He is presumed innocent.
The second charge is the one the headlines call a hate crime. Massachusetts does not use that phrase in its statute, and the way the law actually works is worth setting out, because the difference between the two assault charges Phillipo faces is the difference between a house of correction and state prison.
What the statute says
Chapter 265, section 39 punishes anyone who “commits an assault or a battery upon a person or damages the real or personal property of a person with the intent to intimidate such person because of such person’s race, color, religion, national origin, sexual orientation, gender identity, or disability.”
The base offense carries up to two and a half years in a house of correction, a fine of up to $5,000, or both. Where the battery results in bodily injury, defined as “substantial impairment of the physical condition, including, but not limited to, any burn, fracture of any bone, subdural hematoma, injury to any internal organ,” the maximum rises to five years in state prison and a $10,000 fine. If the defendant was armed with a firearm, ten years. A compound fracture is a fracture of a bone; that is why the charge is the aggravated form.
The statute adds a condition no other assault charge carries. A person convicted must complete “a diversity awareness program designed by the secretary of the executive office of public safety in consultation with the Massachusetts commission against discrimination” before release from custody or the end of probation, whichever comes first.
What the Commonwealth has to prove
An ordinary assault and battery requires proof that the defendant intentionally touched the victim without consent, or did so recklessly. Section 39 requires all of that plus a specific intent: that the defendant acted “with the intent to intimidate” the victim “because of” a protected characteristic. That is a mental state, and it is proved the way mental states usually are, by what the defendant said and did.
This is why the slurs matter legally and not only morally. A defendant who shouts racial slurs while attacking a Black stranger, and continues shouting them at hospital staff afterward, has supplied the prosecution with its evidence of motive. A defendant who attacks a stranger in silence, however brutally, has not, and would face only the ordinary assault charges. The statute punishes the reason for the attack, not its severity; severity is handled by the companion charge.
The defense in cases like this rarely contests the assault. It contests the “because of.” Intoxication, mental illness, a claim that the words were incidental rather than the reason, or that the fight started over something else, are the arguments. The video and the witness accounts, which police say describe a man who was “out of control and acting irate,” will decide whether any of them is available.
The companion charge
Assault and battery by means of a dangerous weapon causing serious bodily injury, under chapter 265, section 15A, carries up to fifteen years in state prison. The “dangerous weapon” in a kicking case is ordinarily a shod foot, which Massachusetts courts have long recognized as capable of qualifying when used to kick a person on the ground. “Serious bodily injury” means injury that results in permanent disfigurement, loss or impairment of a bodily function, or a substantial risk of death, a higher threshold than the “bodily injury” in section 39.
So the two charges do different work. Section 15A carries the heavier sentence and addresses what was done. Section 39 addresses why, carries the diversity program, and produces a conviction that is recorded as a civil rights offense. A defendant convicted of both has been adjudicated for the injury and for the motive separately.
The other tools
Two more exist and are used less. The Attorney General may seek a civil rights injunction under chapter 12, section 11H against anyone who interferes with another person’s rights by threats, intimidation or coercion, and violating such an injunction is itself a crime. And chapter 265, section 37 makes it a crime to interfere with a person’s constitutional rights by force or threat, a broader offense that reaches conduct beyond assault. Prosecutors typically reserve both for cases involving organized conduct or repeat offenders. A single assault at a gas station is a section 39 case.
What comes next
The case is in Plymouth District Court. Section 15A is a felony within the District Court’s concurrent jurisdiction only up to a point; a charge carrying fifteen years may be indicted and moved to Plymouth Superior Court, and given the injury and the defendant’s reported record, that is the likely path. Phillipo is held. If a grand jury indicts, he will be arraigned again in Superior Court and the District Court case will close. The victim, who has not been identified, has the right under the victim bill of rights to be notified of every proceeding and to be heard at sentencing.
What is Massachusetts’s hate crime law?
G.L. c. 265, § 39, which punishes assault, battery or property damage committed with intent to intimidate a person because of race, color, religion, national origin, sexual orientation, gender identity or disability. It is charged alongside, not instead of, the underlying assault.
What is the penalty?
Up to two and a half years in a house of correction and a $5,000 fine; up to five years in state prison and $10,000 if the battery causes bodily injury such as a fracture; up to ten years if armed with a firearm. Conviction also requires completion of a diversity awareness program.
What does the prosecution have to prove?
The assault or battery, plus a specific intent to intimidate the victim because of a protected characteristic. Words spoken during the attack are the usual evidence of that intent.
Who is Gary Phillipo II?
A 46-year-old Carver man charged in the September 8, 2026 attack at a Kingston Cumberland Farms. He is held pending a return date next month and is presumed innocent.
Can a kick be a dangerous weapon?
Yes. Massachusetts courts have recognized a shod foot as a dangerous weapon when used to kick, which supports the separate charge of assault and battery with a dangerous weapon causing serious bodily injury.
Facts of the arrest from the Kingston Police Department as reported by the Fall River Reporter, New Bedford Guide and Newslink Live, September 13, 2026. Statutes read at malegislature.gov. Gary Phillipo II is presumed innocent; the allegations are unproven. General information about Massachusetts law, not legal advice.