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.
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.
[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,
[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
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