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COA affirms resisting police conviction

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The Indiana Court of Appeals was hesitant to rely on an Indiana Supreme Court case’s definition of “forcibly resist” because that language doesn’t appear to adequately describe the meaning of the phrase as it has been recently applied.

In Jose Lopez v. State of Indiana, No. 49A04-0908-CR-464, Jose Lopez appealed his Class A misdemeanor resisting law enforcement conviction, arguing the evidence of his case showed he was standing his ground and the evidence is insufficient to show he “forcibly” resisted the officers’ attempts to handcuff him.

Two Indianapolis Metropolitan Police Officers responded to a domestic disturbance call at an apartment where they found Lopez. Lopez didn’t want to answer the officers’ questions, repeatedly refused to give his name, and when they tried to handcuff him, he resisted. Lopez crossed his arms, pulled away, and continued to refuse to give his hands. He was stunned by a Taser and later put his arms behind his back to be handcuffed.

The COA looked to its own caselaw as well as that from the Supreme Court, including Spangler v. State, 607 N.E.2d 720, 723 (Ind. 1993), and Johnson v. State, 833 N.E.2d 516 (Ind. Ct. App. 2005). In Spangler, the justices ruled someone forcibly resists law enforcement when “strong, powerful, violent means are used to evade a law enforcement official’s rightful exercise of his or her duties.” In Johnson, the panel noted “until we are instructed otherwise by our Supreme Court, we see no reason to apply what appears to be an overly strict definition of forcibly resist.”

Then, in Graham v. State, 903 N.E.2d 963 (Ind. 2009), the high court approved of the language used in Spangler to define “forcibly resist,” while simultaneously approving the holding in Johnson.

“Although the Graham court acknowledged that that the resistance described in Johnson was “modest,” … the Graham court apparently overlooked the Johnson court’s explicit acknowledgement that it was modifying the language of Spangler,” wrote Judge Terry Crone. “Accordingly, we are somewhat hesitant to rely on Spangler’s strong language because it does not appear to adequately describe the meaning of “forcibly resist” as it has more recently been applied.”

But the Court of Appeals found Lopez’s case to be similar to that in Johnson in which the court found sufficient evidence of “forcibly” resisting law enforcement when the defendant turned away and stiffened up.

Lopez did more than passively resist arrest. If the officers couldn’t pull his arms out from under him, it is reasonable to infer that he was forcibly resisting their efforts rather than remaining entirely passive. But Judge Crone also noted the courts can't rely on the amount of force law enforcement uses to subdue a defendant to determine if someone “forcibly resists” because that could lead to law enforcement using more excessive force.

 

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  1. So that none are misinformed by my posting wihtout a non de plume here, please allow me to state that I am NOT an Indiana licensed attorney, although I am an Indiana resident approved to practice law and represent clients in Indiana's fed court of Nth Dist and before the 7th circuit. I remain licensed in KS, since 1996, no discipline. This must be clarified since the IN court records will reveal that I did sit for and pass the Indiana bar last February. Yet be not confused by the fact that I was so allowed to be tested .... I am not, to be clear in the service of my duty to be absolutely candid about this, I AM NOT a member of the Indiana bar, and might never be so licensed given my unrepented from errors of thought documented in this opinion, at fn2, which likely supports Mr Smith's initial post in this thread: http://caselaw.findlaw.com/us-7th-circuit/1592921.html

  2. When I served the State of Kansas as Deputy AG over Consumer Protection & Antitrust for four years, supervising 20 special agents and assistant attorneys general (back before the IBLE denied me the right to practice law in Indiana for not having the right stuff and pretty much crushed my legal career) we had a saying around the office: Resist the lure of the ring!!! It was a take off on Tolkiem, the idea that absolute power (I signed investigative subpoenas as a judge would in many other contexts, no need to show probable cause)could corrupt absolutely. We feared that we would overreach constitutional limits if not reminded, over and over, to be mindful to not do so. Our approach in so challenging one another was Madisonian, as the following quotes from the Father of our Constitution reveal: The essence of Government is power; and power, lodged as it must be in human hands, will ever be liable to abuse. We are right to take alarm at the first experiment upon our liberties. I believe there are more instances of the abridgement of freedom of the people by gradual and silent encroachments by those in power than by violent and sudden usurpations. Liberty may be endangered by the abuse of liberty, but also by the abuse of power. All men having power ought to be mistrusted. -- James Madison, Federalist Papers and other sources: http://www.constitution.org/jm/jm_quotes.htm RESIST THE LURE OF THE RING ALL YE WITH POLITICAL OR JUDICIAL POWER!

  3. My dear Mr Smith, I respect your opinions and much enjoy your posts here. We do differ on our view of the benefits and viability of the American Experiment in Ordered Liberty. While I do agree that it could be better, and that your points in criticism are well taken, Utopia does indeed mean nowhere. I think Madison, Jefferson, Adams and company got it about as good as it gets in a fallen post-Enlightenment social order. That said, a constitution only protects the citizens if it is followed. We currently have a bevy of public officials and judicial agents who believe that their subjectivism, their personal ideology, their elitist fears and concerns and cause celebs trump the constitutions of our forefathers. This is most troubling. More to follow in the next post on that subject.

  4. Yep I am not Bryan Brown. Bryan you appear to be a bigger believer in the Constitution than I am. Were I still a big believer then I might be using my real name like you. Personally, I am no longer a fan of secularism. I favor the confessional state. In religious mattes, it seems to me that social diversity is chaos and conflict, while uniformity is order and peace.... secularism has been imposed by America on other nations now by force and that has not exactly worked out very well.... I think the American historical experiment with disestablishmentarianism is withering on the vine before our eyes..... Since I do not know if that is OK for an officially licensed lawyer to say, I keep the nom de plume.

  5. I am compelled to announce that I am not posting under any Smith monikers here. That said, the post below does have a certain ring to it that sounds familiar to me: http://www.catholicnewworld.com/cnwonline/2014/0907/cardinal.aspx

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