MORE ON HOW BIAS MAY BE ELIMINATED IN CHARGES OF RESISTING ARREST

Expanding on my last blog about resisting arrest,  the following fills in some details of a proposal to discipline the individuals responsible for bias, or avoiding it, as well as looks at the legal implications. 

The proposal is to amend the Government Code and Civil Code to provide:

Each government entity should keep ethnic statistics of the charges of ‘resisting arrest’ California Penal Code Section 148(a) recommended by police or sheriff entities, charged by prosecutors, or adjudged in court including by pleas of guilty. 

These statistics will be reported to the Department of Fair Employment and Housing.

 Wherever it appears that police, as individuals, or departments, are disproportionately accusing racial minorities of violation of PC section 148(a)  that prosecutors are disproportionately charging this section against such minorities, or that courts are disproportionately convicting or accepting guilty pleas to PC 148(a)  the officers, chiefs, prosecutors, and/or judges should be investigated for bias by the State Department of Fair Employment and Housing. (DFEH). 

The DFEH may then schedule a hearing or refer the matter for hearing by the highest responsible in the policing jurisdiction, the applicable county sheriff, or presiding judge of the applicable county’s superior court.  

A statistical disproportion of 10 percent greater than the population of the ethnic group in the applicable county or police jurisdiction, as determined by the last decennial census, or a later census  count authorized by the Governor, will raise a a rebuttable presumption that bias exists.  Individuals, or if individuals cannot be reasonably identified, then the applicable supervisory person or persons, will be invited to  show a credible neutral explanation for the disproportionate enforcement at a hearing to be scheduled within 60 days.   If such invitees cannot overcome the presumption of bias, the DFEH shall issue a finding of bias that shall be retained by the DFEH as a public record and will be incorporated in the record of the officers, prosecutors, or judges as applicable,  and that must be reported considered in any job performance review, promotion or transfer application of the individual for the next 10 years. 

“Disproportionately” shall be defined as 10 percent greater than the percentage of the population of the ethnic group, in the applicable police jurisdiction, city, or county.

“Ethnic”  shall be defined as identified on a driver’s license, or by an arresting officer, subsequent prosecutor, or judge as of apparent African or Afro-American ancestry,  East Asian or Pacific Island ancestry, Latin American Ancestry. 

Professionally discipline practitioners of biased enforcement

The reform proposed is both limited but powerful.  Civil servants, whether police or prosecutors, or even judges, are probably more sensitive to possible employment related sanctions than to general civil laws which must be enforced by a prosecutor, or brought to court by an aggrieved individual.  This rule makes them individually and personally responsible for avoiding bias, thus making them both personally and institutionally motivated to find ways out of the bias that is statistically pervasive, and so destructive of trust in the institutions of law enforcement.    

The proposal does not involve a treatment of an individual on the basis of their race or ethnicity and so avoids the concerns of the U.S. Supreme Court for color blind responses, in the absence of a narrowly interpreted compelling public purpose.  [1] [2]   

Use of statistical and sociological evidence to permit government policy based on race has been approved to remediate de jure practices which it is certainly arguable based on charging and prosecution history this has been.    The provision does not create an arbitrary standard, only a presumption based on statistical evidence, of wrongdoing that may be challenged, and a narrow tailoring of a remedy.  

In the above respects it is unlike the far more sweeping proposed AB 2542.  That bill allows, but likewise requires to obtain such a remedy, an accused person to engage in discovery to determine if he or she is the victim of biased prosecution for any crime, and then excuses the accused, regardless of how guilty, or how heinous the victimization and crime if the prosecution “fruit” is tainted by the poisonous tree of racial bias.

In contrast the above proposal does not excuse factual behavior of one person because of the bias of another, nor does it involve the legally dubious treating of individuals differently because of their own race or ethnicity.   

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[1] Parents Involved in Community Schools v Seattle School Dist. (2007) 127 S. Ct 2738,2740

[2] A legislative classification satisfies equal protection of law so long as persons similarly situated with respect to the legitimate purpose of the law receive like treatment. (Brown v. Merlo (1973) 8 Cal.3d 855, 861, 106 Cal.Rptr. 388, 506 P.2d 212.)  Connerly v. State Personnel Bd. (2001) 92 Cal.App.4th 16 [92 Cal.App.4th 16, 32112 Cal.Rptr.2d 5, 19–20]

PERCEPTION AND CHARGES OF RESISTING ARREST ARE COLOR CODED.  WHAT CAN BE DONE.

The disproportionate deaths of African Americans at the hands of the police, arrests or searches  by police who are plainclothes or otherwise insufficiently identified, violent behavior by police when confronting someone, and charges of the crime of resisting arrest or obstructing an officer are interrelated.  I try to live a pretty middle class life, and practice only civil law, yet I have known two persons of color, one of them a former client, killed by police while engaged, at most, in misdemeanors,  and others accused of “resisting arrest” while peacefully protesting.

Resisting arrest is charged disproportionately against minorities

Charging of resisting arrest, insomuch as it has been documented, falls disproportionately on blacks, minorities, and,  I suspect, on demonstrators protesting injustice. For example: an analysis a few years ago by WNYC in New York, looking at arrest records for some of the most common criminal charges in New York City since 2012 found that black defendants are significantly more likely than white defendants to be additionally charged with resisting arrest in these cases.

For misdemeanor  drug possession: About 2.5% of people charged with misdemeanor drug possession in New York City are also charged with resisting arrest.  By race[1]:  white defendants are charged with resisting arrest in 1.7% of cases; black defendants are charged with resisting arrest in 3.1% of cases, That means a black defendant in a misdemeanor drug possession case is 85.4% more likely to get charged with resisting arrest than a white defendant.

For petty theft, about 1.3% of people charged with petty theft offenses in New York City are also charged with resisting arrest.  White defendants are charged with resisting arrest in 0.9% of cases.  Black defendants are charged with resisting arrest in 1.8% of cases.  That means a black defendant in a petty theft case is 109.4% more likely to get charged with resisting arrest than a white defendant.

For disorderly conduct, about 8.7% of people charged with disorderly conduct in New York City are also charged with resisting arrest.   White defendants are charged with resisting arrest in 6.8% of cases.  Black defendants are charged with resisting arrest in 11.2% of cases.  That means a black defendant in a disorderly conduct case is 64.9% more likely to get charged with resisting arrest than a white defendant.

An article by Mari Payton and Dorian Hargrove published in February, 2020 Mari Payton found that in San Diego Blacks were twice as likely to be charged with resisting arrest.

Resisting police, even if you don’t know they are police can also get you shot dead.  On March 13, 2020, Breonna Taylor, a 26-year-old African-American emergency medical technician, was fatally shot several times by Louisville Metro Police Department officers on March 13, 2020. Three plainclothes LMPD officers executing a no-knock search warrant entered her apartment in Louisville, Kentucky.  Her boyfriend, reasonably believing he was the victim of a home invasion fired a weapon at the invaders.  

A December 24, 2015 Washington Post article by Wesley Lowery described an incident where an African American man, Darrius Stewart was riding around with friends one night in July, sitting in the back seat of their faded blue Chevy Malibu, when a Memphis TN  police officer noticed a missing headlight and signaled for them to stop.  The officer, Connor Schilling, asked everyone for identification, found two out-of-state warrants for Stewart, 19, and pulled him out of the car. A half-hour later, Stewart was dead.   Stewart was one of more than 100 people shot and killed by police after a traffic stop in 2015 according to a Washington Post database tracking deadly police shootings. Like Stewart, 1 in 3 of them was black, making the roadside interaction one of the most common precursors to a fatal police shooting of a black person in 2015.

Last year, the Justice Department released a national survey showing that black drivers were significantly more likely than whites to have been pulled over in the previous 12 months.

One problem of having been charged with resisting arrest is that the police officer pulling you over may learn of it, and, along with any racist bias, predispose the officer to perceive resistance whether or not present.   

What resisting arrest or obstruction laws say – California.

In California, there are two Resisting Arrest statutes.  A misdemeanor  under California Penal Code Section 148(a) PC is a broadly defined criminal offense that makes it illegal to intentionally resist, delay or obstruct a law enforcement officer or emergency medical technician from performing his or her lawful duties. The "lawful duties" is not limited to the act of performing an arrest.  There is also Penal Code 69, attempting, by means of a threat or violence , to deter an executive officer from performing his duties where “executive officer” includes police.   

Limited to lawful duties.

Before a person can be convicted of resisting a peace officer, there must be proof beyond a reasonable doubt that the officer was acting lawfully at the time the offense against him was committed.  [2]    It is, theoretically,  not illegal to resist an officer who is using excessive force or violence and is acting in an unlawful manner.   

On the other hand,  a victim of police brutality occurring after the arrest was made might have a constitutional claim of violation of his civil rights, but it would not excuse his earlier resistance.  [3].   It is easy to imagine that the recall of the arresting officers and defendants might differ in this situation. 

What the law does not apparently excuse is some resistance based on a reasonable belief that the particular police officers are about to act unlawfully, i.e. to beat, shoot, rape, or make an unlawful arrest.  This is an area where some careful reform might be possible.  

The arrested person should know he’s dealing with police to be charged with resistance.

California courts add that the defendant must or should know that the person who is trying to order him to stop or to do something is an officer with authority.  Walking away from a plains clothes person who does not identify him or herself is theoretically legal.  So possibly was the resistance of  Breonna Taylor’s boyfriend. 

I was pleased to learn my local Assemblywoman, Buffy Wicks was carrying a bill, now in the California State Senate to prohibit officers from hiding their id or badges.  [4]

Potential for subjective enforcement

The line between resistance and exercise of a constitutional right can be pretty thin and open to the subjective interpretation of the officer.  In California, an arrestee who refuses to give his name is considered lawfully within his rights[5], but an arrestee who gives a false name is resisting arrest. [6]

An example that sounds wide open for subjective enforcement is one where an obstructing conviction was upheld when the accused told a person who was discussing drug sale with an undercover officer to “Get away from that guy! The guy's a cop!”[7];  In that case a friend is telling another not to get trapped in an illegal act before it was completed.  What if the warning had been given two weeks earlier?  Can an attorney give such a warning without being guilty of obstruction?   If the law enforcement people start out biased to see black or brown people as criminal or volatile, they are more likely to perceive and to punish “resistance” to their authority.    

Professionally discipline practitioners of biased enforcement

One reform that come to mind is that:  Each government entity should keep ethnicity statistics of the charges of ‘resisting arrest’ and the legal results. Wherever it appears that police, as individuals or departments, are disproportionately accusing minorities, that prosecutors are disproportionately charging resisting arrest against them, or that courts are disproportionately convicting or accepting guilty pleas in this area of law, the officers, chiefs, prosecutors, and/or judges should be investigated for bias with a rebuttable presumption that it exists.  Individuals that cannot show a credible neutral explanation for the disproportionate enforcement should be professionally disciplined.

Threatened with loss of a job or a chance at promotion, civil servants including police will start to find ways to make corrections to an unfair system. 

 

Peter H. Liederman

Please note that the above is social commentary.  It is neither given, nor intended to be taken by anyone in any circumstances as legal advice. 

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[1] Despite America’s obsession to the contrary, there is only one human race, and shades of skin color are neither “white” or “black”.   I reluctantly adopt the usual  shorthand here. 

[2] Garcia v. Superior Court (App. 6 Dist. 2009) 99 Cal.Rptr.3d 488,

[3] Smith v. City of Hemet, C.A.9 (Cal.)2005, 394 F.3d 689, certiorari denied 125 S.Ct. 2938

[4] Badges?  I don’t got to show you no stinkin’ badges! ("Treasure of the Sierra Madre", film 1948). 2019 California Assembly Bill No. 1652.

[5] In re Chase C. (App. 4 Dist. 2015) 196 Cal.Rptr.3d 381

[6] People v. Christopher (App. 4 Dist. 2006) 40 Cal.Rptr.3d 615

[7] People v. Robles, 1996, 56 Cal.Rptr.2d 369,