Friday, January 28, 2011

Why Resisting a Police Officer Requires a Physical Act of Obstruction

When I first read the Third District's recent decision in People v. Berardi, No. 3-10-0122, slip op. (3rd Dist. January 21, 2011), I immediately thought of one of my favorite television shows, Parks and Recreation. The incident in Berardi, which occurred in Canton, IL (pop. 15,288), might as well have occurred in the fictional town of Pawnee, IN. I can at least envision the same situation unfolding there.

In Berardi, defendant, who was a Canton alderman, called the Canton City Hall and requested a copy of the city budget, after a notice had been posted in a local newspaper that "the city's budget was then available for viewing during normal business hours." Id. at 2. Defendant had called on a Friday, and an election was scheduled for the following Tuesday. Id. Defendant was told that he could obtain a copy of the budget at city hall. Id. at 3. Defendant was then called by the city's budget director and told that the budget was not available at this time, despite the notice in the paper and the phone call he had just made. Id. Defendant then went down to city hall, along with two companions, where he went straight to the budget director's office. Id. The budget director informed defendant that "the mayor had directed him not to distribute copies of the budget until the following Monday." Berardi, No. 3-10-0122, slip 3. Defendant then went to the city clerk's office, again asking for a copy of the budget. Id. A deputy clerk told the defendant that he would have to "discuss any issues concerning the budget with the budget director" (with whom defendant had just spoken). Id. After telling defendant this, the deputy clerk went to the budget director's office and called police to "report a disturbance and to express her belief there was a need for security in the building." Id.

When the chief of police arrived, he "proceeded directly to the budget director's office and spoke with the budget director and the clerk." Id. at 4. The budget director only asked the officer if he could leave, which he did, along with the clerk, after the officer told him he could do so. Berardi, No. 3-10-0122, slip op. at 4. The officer then went to the city attorney's office to determine when the budget would become available, but the city attorney was not in her office. Id. When the officer returned to the common area, the defendant was videotaping through a window in the budget director's office in an attempt to "obtain an image of copies of the budget in boxes in the office." Id. The officer then told the defendant that he had to leave because all the employees had left. Id. The officer told him '''If you don't leave, you are going to get arrested. And he said I'm not leaving. And I said, well, you're under arrest.'" Id. at 5 The police officer then asked defendant to "accompany him downstairs to the police department" for booking. Berardi, No. 3-10-0122, slip op. at 6.

The defendant was charged with resisting a police officer under 720 ILCS 5/31-1 (West 2006). Id. at 8. A defendant can be convicted under 5/31-1 if he "knowingly resists or obstructs the performance by one known to the person to be a peace officer, firefighter, or correctional institution employee of any authorized act within his official capacity…" At trial, defense counsel "requested the trial court to instruct the jury that some use of force is required to find that a person has resisted an authorized act in violation of section 31-1," which the trial court refused to do. Id. Defendant was then convicted, and he appealed. Id.

The issue on appeal was whether the alderman's refusal to leave at the command of the police chief constituted "resistance" under 5/31-1. See id. at 9. In People v. Raby, 40 Ill. 2d 392, 399, the Illinois Supreme Court held that 31-1 "do[es] not proscribe mere argument with a policeman about the validity of an arrest or other police action, but proscribe[s] only some physical act which imposes an obstacle which may impede, hinder, interrupt, prevent or delay the performance of the officer's duties,such as going limp, forcefully resisting arrest or physically aiding a third party to avoid arrest." (emphasis added). The defendant argued that "mere argument with a peace officer is not prohibited under section 31-1 and that his [defendant's] failure to abide by [Officer] Taylor's command is insufficient to support his conviction." Berardi, No. 3-10-0122, slip op. at 9. The State argued that defendant's repeated refusal to leave constituted obstruction because it hindered or impeded the officer's ability to "secure the private office space when no employees were present" and that defendant's refusal to leave was "equivalent to going limp." Id.

The Berardi Court held that defendant's refusal to leave at the command of the police chief did not constitute resistance under 31-1 because 31-1 "'does not prohibit a person from verbally resisting or arguing with a police officer about the validity of an arrest other police action…Verbal resistance or argument alone, even the use of abusive language, is not a violation of a statute," see id. at 10 (citing People v. McCoy, 378 Ill. App. 3d 954, 962 (2008)), and the defendant's conviction was reversed. Id. at 12.

While the humorous facts of the case conjure images of the inept bureaucrats in Pawnee's city hall, Berardi reminds us that a physical act is required in order to sustain a conviction for resisting a peace officer. "Verbally resisting or arguing with a police officer about the validity of an arrest or other police action" is not proscribed by 31-1. If the defendant does not commit a physical act which prevents the officer from performing his duties, his conduct does not fall under 31-1. In cases were the defendant was merely arguing with an officer but did nothing to physically prevent the officer from doing his job, it is therefore important for defense counsel to ensure that the jury instruction on 31-1 contains language requiring that the defendant committed a physical act of impediment.

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