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Oregon Supreme Ct - April 20, 2017

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by: Sara Werboff • April 21, 2017 • no comments

Interference with a Peace Officer – “Passive Resistance” is Noncooperation with an Officer that Does Not Involve Violence or Other Active Conduct

The court reverses defendant’s conviction for interference with a peace officer (IPO) and holds that “passive resistance” is “noncooperation with aa peace officer that does not involve violence or other active conduct by defendant.” Defendant was arguing with a ticket agent at a Greyhound station. The agent asked defendant to leave and he refused. Ultimately, police responded and also ordered defendant to leave. He again refused. Police tackled defendant and arrested him for IPO. A person is not guilty of IPO if they are engaging in passive resistance. Defendant requested a jury instruction that he was engaging in passive resistance and the trial court refused.

The court, in determining the meaning of passive resistance (which is not defined in the statute), looks to the text, context, and legislative history. The court ultimately rejects the state’s argument that passive resistance applies only in circumstances where a person is resisting an arrest, and its alternative argument that a person can only passively resist if that person is motivated by conscience or principle. The court also rejects the Court of Appeals definition of passive resistance which defined it as acts or techniques commonly associated with civil disobedience or protest. The court explains that passive resistance is broader than those definitions. Further the definition that the court adopts avoids constitutional problems that might arise if juries are forced to decide whether a person is motivated by conscience or principle or by more private motivations. That might lead to potentially impermissible content-based restrictions on speech.

Justice Kistler, joined by Justices Landau and Brewer, concurred in the result but argued that the court should have adopted a definition of passive resistance that applies to “peaceable or passive noncompliance taken to express a position of a governmental or other policy.” Kistler argues that such an interpretation would be more consistent with the legislative intent.

State v. McNally, 361 Or 314 (Balmer, C.J.) (Kistler, J., concurring)