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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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  1. Im very happy for you, getting ready to go down that dirt road myself, and im praying for the same outcome, because it IS sometimes in the childs best interest to have visitation with grandparents. Thanks for sharing, needed to hear some positive posts for once.

  2. Been there 4 months with 1 paycheck what can i do

  3. our hoa has not communicated any thing that takes place in their "executive meetings" not executive session. They make decisions in these meetings, do not have an agenda, do not notify association memebers and do not keep general meetings minutes. They do not communicate info of any kind to the member, except annual meeting, nobody attends or votes because they think the board is self serving. They keep a deposit fee from club house rental for inspection after someone uses it, there is no inspection I know becausee I rented it, they did not disclose to members that board memebers would be keeping this money, I know it is only 10 dollars but still it is not their money, they hire from within the board for paid positions, no advertising and no request for bids from anyone else, I atteended last annual meeting, went into executive session to elect officers in that session the president brought up the motion to give the secretary a raise of course they all agreed they hired her in, then the minutes stated that a diffeerent board member motioned to give this raise. This board is very clickish and has done things anyway they pleased for over 5 years, what recourse to members have to make changes in the boards conduct

  4. Where may I find an attorney working Pro Bono? Many issues with divorce, my Disability, distribution of IRA's, property, money's and pressured into agreement by my attorney. Leaving me far less than 5% of all after 15 years of marriage. No money to appeal, disabled living on disability income. Attorney's decision brought forward to judge, no evidence ever to finalize divorce. Just 2 weeks ago. Please help.

  5. For the record no one could answer the equal protection / substantive due process challenge I issued in the first post below. The lawless and accountable only to power bureaucrats never did either. All who interface with the Indiana law examiners or JLAP be warned.

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