Friday, March 16, 2012

The Odd Opinion of People v. Thompson: What is an authorized act within the Resist/Obstructing Statute

On March 12, 2012, the Third District Court published the opinion People v. Thompson, 2012 IL App (3d) 100188. The majority opinion addressed whether Kankakee County state's attorneys had proven Mr. Thompson guilty of resisting a peace officer under 720 ILCS 5/31-1. Being only a review of whether a rational trier of fact could find the elements of the offense proven beyond reasonable doubt, the opinion would have likely been issued without publishing under Illinois Supreme Court Rule 23; however, Justice McDade issued a specially concurring opinion, which addresses the police officer's authority. Justice McDade's concurrance raises a question that is often difficult to answer in the Resist/Obstruct statute and the authority of an officer.

The facts are straightforward. Officers have a civil writ of body attachment for defendant's son. Based on the writ(and mistaken belief that the writ is synonymous with warrant), the officers seek to arrest defendant's son at his residence. Defendant gets in the way, and officers arrest him. They charge, allege, and testify to all kinds of physical acts: thrusting of shoulders, stuggling, swinging of elbows, etc. Defendant's witnesses dispute these acts, and they agree that the officer jumped the defendant.

The majority opinion correctly notes that the jury is there to determine questions of fact. The jury believed the officers' accounts and not the defendant's. The majority opinion concludes that a rational trier of fact could believe officers over the defendant and his witnesses. The majority then affirms the trial court.

Justice McDade issues a concurrence, which also agrees in affirming the trial court; however, she brings the up the question: Did officers have the authority to enter the defendant's home with a writ of body attachment? Justice McDade notes that case law is sparse on the subject, but a writ is not the same as a warrant. Since the defendant did not assert this theory in either the trial court nor the appellate court, Justice McDade affirms.

Her concurrance though asks a tough question: what is an authorized act? Section 31-1 requires that the defendant obstruct or resist an authorized act. 720 ILCS 5/31-1. Arrests supported by probable cause or warrants are authorized. 725 ILCS 5/107-2(a) & (c) Terry stops are authorized. People v. Johnson, 285 Ill.App.3d 307 (2d Dist. 1996). The Fourth District found that the approriate test is whether an officer is doing something he was employed to do or on personal frolic. City of Champaign v. Torres, 346 Ill.App.3d 214, 217 (4th Dist. 2004).

State's attorneys will quickly point to Section 7-7 of the criminal code, which states that private citizens cannot use force to resist even an unlawful arrest. 720 ILCS 5/7-7. Case law agrees that unlawful arrests are actually authorized acts under the statute. See People v. Gilman, 17 Ill.App.3d 827, 829-30 (4th Dist. 1974). In 1968, the First Distict Court limited section 7-7 only to arrests, but not searches. People v. Young, 100 Ill.App.2d 20 (1st Dist. 1968). The defendant in Young struck an officer in the chest as the officer attempted to enter the defendant's apartment. Id. at 21. The officer had erroneously gone to the wrong home to serve a warrant and met with the unwelcoming Young defendant. The court held that reasonable use of force "was necessary to terminate the officer unlawful entry into her dwelling and that her limited use of force was justified." 100 Ill.App.2d at 26.

Other cases have similarly agreed that warrantless, nonconsenual, and forcible entry into a person's home is not an authorized act. City of Champaign v. Torres, 824 N.E.2d 624, 630 (Ill. 2005). See also People v. Swiecz, 104 Ill.App.3d 733 (where defendant refused warrantless, nonconsenual entry into his home by an officer seeking to interview an third party), People v. Hilgenberg, 585 N.E.2d 180 (2d Dist. 1991)(where defendants refused to answer the door for officers investigating a an underage drinking complaint).

In People v. Bohannon, 403 Ill.App.3d 1074 (5th Dist. 2010), the Fifth District addressed whether an authorized act means requesting a driver's license and proof of insurance during a traffic stop. The court notes that drivers have a duty to display these documents under the Illinois Vehicle Code. 625 ILCS 5/6-112 ("Every licensee . . . shall display such license . . . upon demand made . . . by . . . a police officer."). The Court, however, held that failure to display a license was not violating an authorized act. In so holding, the Court noted that failure to display this documentation was already an offense, and the state could not "pyramid" these offenses on each other as it created a "unsound structure."

In People v. Fernandez, the Second District Court noted that officers are "authorized" to ask for identifying information of detainees during a Terry stop (725 ILCS 5/107-14); however, the court noted that the law imposed no duty upon detainees to responded. People v. Fernandez, 2011 IL App. (2d) 100473 ¶ 11. The court went on to determine that refusing to identify oneself is not a violation of the Resisting/Obstructing statute. 2011 IL App. (2d) 100473 ¶ 13.

Perhaps one of the hardest cases to reconcile is People v. Ortiz, 16 Ill.App.3d 13 (1st Dist. 1973). In that case, the officer, without probable cause, reasonable suspicion, nor a warrant, lines several young men in a school yard. The officer then proceeds to search Ortiz, who is uncooperative. Oritz then strikes the officer in the chest and jumps on the officer. The First District Court overturns convictions for both battery and resisting. The Court noted that the search was not authorized because it was not supported by probable cause or reasonable suspicion. 16 Ill.App.3d at 17-18.

When dealing with a Resisting or Obstructing charge, attorneys should look at whether the officer's actions being resisted or obstructed were authorized. Unlawful arrests are solidly recognized as authorized under the statute. Unlawful searchs, however, may not be authorized. In Thompson, Justice McDade's concurrance raises a tough question about police authority, but does not resolve it. Criminal defense attorneys have a murky legal area when addressing police authority in Resisting/Obstructing cases.

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