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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. I expressed my thought in the title, long as it was. I am shocked that there is ever immunity from accountability for ANY Government agency. That appears to violate every principle in the US Constitution, which exists to limit Government power and to ensure Government accountability. I don't know how many cases of legitimate child abuse exist, but in the few cases in which I knew the people involved, in every example an anonymous caller used DCS as their personal weapon to strike at innocent people over trivial disagreements that had no connection with any facts. Given that the system is vulnerable to abuse, and given the extreme harm any action by DCS causes to families, I would assume any degree of failure to comply with the smallest infraction of personal rights would result in mandatory review. Even one day of parent-child separation in the absence of reasonable cause for a felony arrest should result in severe penalties to those involved in the action. It appears to me, that like all bureaucracies, DCS is prone to interpret every case as legitimate. This is not an accusation against DCS. It is a statement about the nature of bureaucracies, and the need for ADDED scrutiny of all bureaucratic actions. Frankly, I question the constitutionality of bureaucracies in general, because their power is delegated, and therefore unaccountable. No Government action can be unaccountable if we want to avoid its eventual degeneration into irrelevance and lawlessness, and the law of the jungle. Our Constitution is the source of all Government power, and it is the contract that legitimizes all Government power. To the extent that its various protections against intrusion are set aside, so is the power afforded by that contract. Eventually overstepping the limits of power eliminates that power, as a law of nature. Even total tyranny eventually crumbles to nothing.

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