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.