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Inside the Criminal Case: Passive vs. forcible resistance

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Inside CC Bell GaerteThe Court of Appeals recently brought us the story of a woman, her dog and her not-so Gandhi-like attempt at passive resistance when her dogs were investigated for biting. The question before the Court of Appeals was whether this passive resistance was criminal.

Maddox Macy was a dog owner. Macy v. State, No. 52A02-1309-CR-808, 2014 Ind. App. LEXIS 221 at *1-2 (Ind. Ct. App. May 22, 2014). When Macy’s neighbor complained that Macy’s dogs had bitten someone, two animal control officers, assisted by a police officer, were assigned to investigate the complaint. Id. at *1-2. Not surprisingly, when they arrived, the officers found Macy “aloof” and “not in the mood to cooperate.”Id. at *2. Therefore, they left Macy’s house to ask the neighbor about the purported incident. Id. Displeased, Macy followed the officers while shouting that her dogs hadn’t bitten anyone and “demanding answers” from the officers. Id.

After disregarding the officer’s request to calm down, the police officer placed Macy in handcuffs and sat her in the front seat of his police car, shutting the door. Id. at *3. Handcuffed but undeterred, Macy somehow opened the door to the officer’s car, got out and continued to demand answers. Id. The officer re-engaged Macy and asked her to get back into the car. Id. She refused, so the officer “had to force” her into the car. Id. In response, Macy placed her feet on the ground outside of the vehicle, compelling the officer to pick her feet up in order to shut the car’s door. Id. At trial, the court concluded that the act of Macy “stiffening up” did not constitute resisting law enforcement but that getting out of the police car was sufficient to determine that she was guilty of the same. Id. at *3-4.

On appeal, Macy claimed there was insufficient evidence that she was guilty of resisting law enforcement because she did not forcibly resist. Id. at *1. Indiana Code 35-44.1-3-1(a)(1) provides that it is a crime when an individual “forcibly resists, obstructs, or interferes with a law enforcement officer.” The state argued that Macy forcibly resisted both when she opened the officer’s car door and when she rested her feet outside of the car requiring the officers to physically pick them up in order to get them through the door. Id. at *7. The state also argued that “forcible resistance . . . may be reasonably inferred based on (the officer’s) testimony that he had to ‘force’ Macy back into the car.” Id. at *9 (parenthesis added).

The Court of Appeals acknowledged that the “line between what is and is not forcible resistance is blurry to say the least.” Id. at *6. The court emphasized that an individual’s resistance must be more than passive and must, “at a minimum, (involve) some physical interaction with a law enforcement officer.” Id. at *6, 9 (parenthesis added). Because Macy’s actions were not directed at the officers, and the officer wasn’t near his car when she opened its door, the court concluded that this action could not constitute forcible resistance. Id. at *8-9. Addressing the state’s contention that Macy’s placement of her feet outside of the car constituted impermissible force, the court found that she had merely passively resisted and that this was insufficient to constitute the forcible resistance. Id. at *10-11. Finally, the Court of Appeals held that “an officer’s force does not establish that the defendant forcibly resisted.” Id. at *9. Macy’s conviction for resisting law enforcement was therefore reversed. Id.

In our eyes, it is a relief that it is the defendant’s use of force – and not the officer’s use of force – that dictates whether an individual is guilty of resisting law enforcement. If the law was expanded to allow the officer’s use of force to determine who was “resisting,” then theoretically, one would be guilty of “resisting” every time an officer:

• Threw someone onto the hood of a squad car,

• Hit someone in the knee cap with a billy-club or

• Tazed someone.

Just in case you ever find yourself on the game show “Resist, Not Resist,” you should probably know that the following conduct also does not constitute resisting:

• Walking away from a law-enforcement encounter,

• Leaning away from an officer’s grasp or

• Twisting and turning “a little bit.”

K.W. v. State, 984 N.E.2d 610, 612 (Ind. 2013). On the other hand, “mayhem” or directing strength, power or violence toward an officer would be considered resisting. Graham v. State, 903 N.E.2d 963, 956 (Ind. 2009); Spangler v. State, 607 N.E.2d 720, 723-4 (Ind. 1993).

Regardless of your confidence in navigating the “blurred lines” of these laws, if you find yourself leaving a watering hole late at night and encounter a police officer, you should probably just greet the officer with a polite “Good evening, kind sir” rather than an “aloof” or uncooperative “demand” for answers. That demand could lead to the not-so-warm embrace of an officer and you could find yourself with problems after “twisting and turning” more than “a little bit.”•

__________

James J. Bell and K. Michael Gaerte are attorneys with Bingham Greenebaum Doll LLP. They assist lawyers and judges with professional liability and legal ethics issues. They also practice in criminal defense and are regular speakers on criminal defense and ethics topics. They can be reached at jbell@bgdlegal.com or mgaerte@bgdlegal.com. The opinions expressed are those of the authors.
 

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  4. Oh, and you fail to mention that you deprived the father of far FAR more time than he ever did you, even requiring officers to escort the children back into his care. Please, can you see that you had a huge part in "starting the war?" Patricia, i can't understand how painfully heartbreak ithis ordeal must have been for you. I read the appellate case and was surprised to see both sides of the story because your actions were harmful to your child; more so than the fathers. The evidence wasn't re weighed. It was properly reviewed for abuse of discretion as the trial court didn't consider whether a change of circumstance occurred or follow and define the statutes that led to their decision. Allowing a child to call a boyfriend "daddy" and the father by his first name is unacceptable. The first time custody was reversed to father was for very good reason. Self reflection in how you ultimately lost primary custody is the only way you will be able heal and move forward. Forgiveness of yourself comes after recognition and I truly hope you can get past the hurt and pain to allow your child the stability and care you recognized yourself that the father provides.

  5. Patricia, i can't understand how painfully heartbreak ithis ordeal must have been for you. I read the appellate case and was surprised to see both sides of the story because your actions were harmful to your child; more so than the fathers. The evidence wasn't re weighed. It was properly reviewed for abuse of discretion as the trial court didn't consider whether a change of circumstance occurred or follow and define the statutes that led to their decision. Allowing a child to call a boyfriend "daddy" and the father by his first name is unacceptable. The first time custody was reversed to father was for very good reason. Self reflection in how you ultimately lost primary custody is the only way you will be able heal and move forward. Forgiveness of yourself comes after recognition and I truly hope you can get past the hurt and pain to allow your child the stability and care you recognized yourself that the father provides.

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