Excessive Force Claims Are Evaluted Under a Case by Case Basis

Penal Code Section 148 – Resisting, Obstructing or Delaying A Peace Officer

Introduction:

Penal Code Section 148 was designed to protect the physical safety of officers, and to facilitate effective law enforcement investigations. Unfortunately, it is not uncommon for some officers and their departments to abuse Section 148 to punish individuals who assert their Constitutional rights or who simply offer any challenge whatsoever to police authority. In Ventura County, law enforcement officers will almost always arrest someone for “resisting arrest” if the officer deployed even the slightest use of force against the person.  Please see the Commentary section below for a greater discussion of the practical considerations that arise in Penal Code Section 148 prosecutions.

This blog article is designed for informational purposes only.  It does not establish an attorney-client relationship with the reader.  You may use it to stimulate a meaningful conversation with a criminal defense attorney of your choosing.

If you are arrested for a Penal Code Section 148 violation in Ventura County, you should contact an experienced criminal defense attorney immediately.

PENAL CODE SECTION 148(a)(1) VIOLATIONS:

Under Section 148(a)(1), an person who “willfully” resists, obstructs or delays any public officer, peace officer or emergency medical technician in the discharge of his duties is guilty of a misdemeanor.

Elements of  Penal Code Section 148(a)(1) violations:

The prosecution must prove the following beyond a reasonable doubt:

  1. The person resisted was a (peace officer / public officer / emergency medical technician) who was engaged, or who attempted to engage in the law performance of an official duty.1
  2. The defendant willfully (resisted / obstructed / delayed) the officer or EMT in the performance or attempted performance of those duties.    AND
  3.  When the defendant acted, the defendant knew or reasonably should have known that the officer or EMT was an officer or EMT in the performance or attempted performance of an official duty.

A person commits an act “willfully” when he or she does it on purpose.  The prosecutor does not need to prove that the defendant intended to break the law, hurt the officer, or gain any advantage.2

Common Examples of Penal Code Section 148(a)(1) violations:

  • Example of Unlawfully Delaying an Officer:   A police officer is attempting to interview a witness in a criminal investigation.  The Defendant repeatedly interrupts the officer’s interview after being ordered not to.   The officer may have probable cause to arrest.3
  • Example of Resisting Officer:  A patrol officer responds to a domestic violence call.   Upon forming probable cause that the homeowner has abused his wife, the officer tells him that he is under arrest.  The man struggles desperately to avoid being handcuffed.   His resistance to a lawful arrest may fall under the statute.
  • Example of Obstructing Officer:    Police officers arrest a criminal suspect and place him inside a patrol vehicle.   The defendant approaches the vehicle and attempts to speak to the arrested person.  Multiple officers tell the defendant to step away from the patrol vehicle, but he refuses to do so.  The officers are diverted from processing the crime scene and carrying out other official duties because of the defendant’s refusal to obey their lawful commands.4

Defenses to Penal Code Section 148(a)(1) Allegations:

A broad array of legal issues may arise in any Penal Code Section 148(a)(1) prosecution.  Many complex defenses may be identified by an experienced criminal defense attorney.   The following defenses are not exhaustive and should be reviewed carefully with the advice and counsel of an attorney:

  • Defense:  The Officer Was not Engaged in the Lawful Performance of His Duties.   In California, the lawfulness of the officer’s conduct is an essential element of the offense of resisting, delaying or obstructing a peace officer.5   An experienced lawyer or a police practices expert may spot a host of reasons in support of an argument that officers were not engaged in the lawful performance of their duties when they arrested the defendant for resisting, obstructing or delaying them.  Courts have found that officers are not in the lawful performance of their duties when they use excessive force to effectuate an arrest.6   Similarly, an officer is not lawfully performing her duties when she detains a person without reasonable suspicion or arrests a person without probable cause.7
  • Defense:  Excessive Force.   Excessive force claims commonly arise in Section 148 cases.  A person cannot be convicted of a 148 violation for resisting the brutal use of force at the time of arrest.8  However, if a person obstructs an officer before excessive force is used, the 148 conviction  may still be valid.9   If an officer uses excessive force while attempting to detain or arrest a person, the arrestee may use reasonable force to defend himself.29  Excessive force defenses are highly complex and should only be undertaken with the assistance of an experienced defense lawyer.   To evaluate whether an officer’s level of force exceeded the permissibile bounds to “seize” a person under the Fourth Amendment, courts look to an “objective reasonableness” test.30  A criminal defense attorney will sometimes hire a “use of force” expert to offer an opinion at trial that officers used excessive force under the circumstances.
  • Defense:  Lack of “Willfull” Resistance / Obstruction of Delay:   The prosecution must prove that the Defendant willfully or purposely resisted, obstructed or delayed an officer during the performance of his lawful duties.   In some instances, an officer may express a desire to speak to a person who has no interest in responding.  Unless the words and actions of the officer make it clear to a reasonable person that he or she is being detained, it is not unlawful to walk away from a peace officer or to decline to answer questions.10   
  • Defense:  Lack of Knowledge that Victim Was a Peace Officer (or EMT):   On occassion, an undercover or off duty  officer will attempt to assert police authority over a person.   The prosecution must demonstrate beyond a reasonable doubt that the Defendant “knew” he or she was resisting a law enforcement officer in the course and scope of his duties.  Police action can sometimes be quick, aggressive and catch a suspected offender off guard.  Given the circumstances of a particular case, it may be a defense that the person did not know that alleged victim was a peace officer.
  • Defense:  Under the First Amendment, A Verbal Challenge to a Police Officer Is not Unlawful:   Under California law, the fact that someone verbally challenges a police officer’s authority or is slow to comply with orders does not mean that they have delayed an investigation.11  It is commonly known that some officers will attempt to arrest any person who has the “audacity” to verbally challenge an officer’s authority.  These are sometimes referred to as “contempt of cop” cases.  Vulgar, profane or highly inappropriate words alone do not support a finding that the speech was criminal.12 However, when a person’s words go beyond verbal criticism into the realm of interference with an officer’s performance of his or her duties, the First Amendment does not preclude punishment.13
    PENAL CODE SECTION 148(a)(2) VIOLATIONS

    Penal Code Section 148(a)(2) offers misdemeanor-level punishment for any person who “knowingly” and “maliciously” interrupts, disrupts, impedes, or otherwise interferes with the transmission of a communication over a public safety radio.

    In the author’s experiece, Section 148(a)(2) violations rarely arise.

    “Malice” or “Maliciously” is defined as a “wish to vex, annoy, or injure another person, or an intent to do a wrongful act.”14

    PENAL CODE SECTION 148(b) VIOLATIONS

    Penal Code Section 148(b) provides aggravated punishment for any person who, while in the commission of a Section 148(a)(1) offense, removes or takes away any weapon other than a firearm from the person or immediate presence of a peace officer.

    Firearms are the primary weapon of American law enforcement officers.  Accordingly, Section 148(b) violations rarely arise.   The taking of a baton, utility knife or other item capable of being classified as a weapon from an officer would fall under the statute as long as all of the elements of Section 148(a)(1) are satisified. Prosecutors must prove one additional element in a section 148(b) prosecution, however. They must also prove that the defendant did not act in lawful self-defense or in the lawful defense of another person.15   

    Penal Code Section 148(b) is a “wobbler” offense in that it may be punished as either a misdemeanor or a felony.

    PENAL CODE SECTION 148(c) VIOLATIONS

    Section 148(c) sets forth felony punishment for any person who takes a firearm from an officer while resisting a peace officer engaged in the lawful performance of an official duty. The crime is not a “wobbler” in that it may not be reduced to a misdemeanor.

    Elements of a Penal Code Section 148(c) Violation:

    The prosecution must prove the following elements beyond a reasonable doubt:

    1. The victim was a peace officer engaged in the lawful performance of his or her duty;16
    2. The defendant willfully resisted, obstructed or delayed the officer in the performance or attempted performance of an official duty;17
    3. When the defendant acted, he knew or reasonably should have known that the victim was a peace officer.18
    4. While the defendant resisted, obstructed or delayed the officer, he took a firearm from the officer, or from the officer’s immediate presence.19    AND
    5. The defendant did not lawfully act in self-defense or in the defense of another person.20

    Punishment for Section 148(c) violations:

    Any person convicted of a Penal Code Section 148(c) violation shall be punished in the following manner:21

    • Felony Probation accompanied by a county jail sentence of up to 365 days.
    • A felony jail sentence (i.e., a prison sentence served in a county jail) of 16 months, two years or three years.

    PENAL CODE SECTION 148(d) VIOLATIONS

    Penal Code Section 148(d) sets forth misdemeanor or felony punishment for any person who attempts to take a peace officer’s firearm while resisting, obstructing or delaying the officer in the performance of their official duty.

    Elements of a Section 148(d) prosecution:

    The prosecution must prove the following elements beyond a reasonable doubt:

    1. The defendant willfully resisted, obstructed or delayed a peace officer;22
    2. When the defendant acted, the peace officer was engaged in the lawful performance of an official duty;23
    3. The defendant knew or reasonably should have known that the victim was engaged in the performance of an official duty;24
    4. While resisting, obstructing or delaying the officer, the defendant made a direct but ineffectual act to remove or take a firearm from the person or immediate presence of the peace officer;25 AND
    5. Defendant specifically intended to remove or take a firearm from the person or immediate presence of a peace officer;26 AND
    6. The defendant did not act in self-defense or defense of another.27

    Special Proof Requirements to Show Intent in all Penal Section 148(d) Prosecutions:

    Resisting arrest cases sometimes involve desperate physical struggles.  In some instances, it is possible for an officer to honestly misperceive a person’s intent to take his firearm.   This is particularly true during a ground struggle.  To reduce the likelihood of officer error, California requires one or more additional items of proof to demonstrate that the defendant truly had the intent to take the officer’s firearm:

    1. The officer’s holster strap was unfastened by the defendant;
    2. The firearm was partially removed from the officer’s holster strap by the defendant;
    3. The firearm safety was released by the defendant;
    4. An independent witness corroborates that the defendant stated that he or she intended to remove the firearm and the defendant actually touched the firearm;
    5. An independent witness corroborates that the defendant actually had his or her hand on the firearm and tried to take the firearm from the officer who was holding it;
    6. The defendant’s fingerprint was found on the firearm or holster;
    7. Physical evidence authenticated by a scientifically verifiable procedure established that the defendant touched the firearm;
    8. In the course of any struggle, the officer’s firearm fell and the defendant attempted to pick it up.

    Defenses to Penal Code Section 148(d) Violations:

    Defenses to a Penal Code Section 148(d) include those listed in Section 148(a) above.  Additionally, many cases may present an opportunity to challenge the government’s assertion that the defendant made an attempt to take the officer’s  firearm away.

    COMMENTARY ON PENAL CODE SECTION 148

    Penal Code Section 148 is a necessary and important statute to protect police officers and to ensure the orderly administration of justice. However, for several practical reasons the law is subject to abuse. Penal Code Section 148 prosecutions often result in some of the most contentious litigation in the criminal justice system.   Law enforcement agencies aggressively lobby prosecutors to file resisting arrest cases, particularly when an officer uses force against a suspect or witness.  Police agencies almost always seek the criminal prosecution and conviction of any person subjected to a use of force to limit exposure to federal civil rights lawsuits.28  For this reason, Penal Code Section 148 arrests are sometimes cynically referred to as “Cover 148’s.”

    Los Angeles, Ventura and several large counties have developed specialized “Crimes Against Police Officers” units.  In Ventura County, experienced and aggressive prosecutors typically handle any alleged crime of violence against a police officer.   If you are charged with a Penal Code Section 148 or Section 69 offense in Ventura County, you must retain an aggressive and experienced trial lawyer unless you intend to enter a guilty plea.  The District Attorney is unlikely to dismiss your case, even if it is not entirely clear to prosecutors that they can obtain a conviction.   In Ventura County, law enforcement unions comprise some of the most powerful political action groups in the jurisdiction.   The District Attorney and other elected officials prize the endorsement of law enforcement unions in the face of a contested election.  Accordingly, you can expect the equivalent of a courtroom brawl with the government if you intend to take a Penal Code Section 148 case to a jury trial.

    Poor police practices can result in unnecessary and defensible Penal Code Section 148 cases.   As an example, patrol officers are often trained to walk up to individuals and create a “consensual encounter” when investigating potential wrongdoing.  The officer’s goal is often to declare the civilian encounter to be consensual so that it is unnecessary to offer Miranda warnings when asking questions of an incriminating nature.   At some point during the encounter, the officer may deem the person “detained” but fail to utter words or take action that clearly indicates to a reasonable person that he or she is no longer free to leave.   This scenario can result in a use of force against a person who undertandably believes that they have no duty to speak to the officer, answer questions, or remain in the officer’s presence.  The resulting arrest may leave both the defendant and eyewitnesses confused and angry.

    Poor police use of force practices can sometimes cause a compliant person to offer the appearance of resistance.   Excessive force and heavy handed restraint techniques can trigger an arrestee to panic.  The excessive use of force thereby triggers an involuntary physiological panic response due to the fear of impending injury or even death.  As the person panics, the officer then increases the use of force – causing a spiraling and potentially dangerous situation for the arrestee.   Unnecessarily painful compliance techniques and dangerous positional restraints can induce panic and resistance in people who would have otherwise submitted to the authority of the officer.  During such encounters, witnesses will often hear officers yell “stop resisting!”   Officers are often trained to yell “stop resisting” no mater how brutal the use of force or level of resistance.   The statement is designed to skew video recordings and witness statements in favor of the officer.  Police practices experts can help develop defenses related to the use of excessive force.

    Aggressive personality traits harbored by some officers can also lead to disastrous results in the field for individuals suffering from mental illness or drug-induced delirium.   Due to a lack of training, an officer may be quick to use force against someone whose perceptions have been altered by intoxication, drug-related delirium, or mental disease.  Unncessarily aggressive and painful compliance techniques can induce panic in a person suffering from cognitive impairment.  An experienced attorney will evaluate these factors on a case by case basis to determine applicable defenses to a Section 148 charge.

    You should contact an experienced attorney as soon as you are cited or arrested for a Section 148 allegation.  An experienced lawyer will engage a veteran investigator immediately to defend you.   A quick investigation is necessary for the following reasons:

    • Witness Identification:  Resisting arrest cases often occur in public places.   The faster you send an investigator out to the scene, the more likely you are to locate people who witnessed the law enforcement encounter.   Speed is essential to lock down eyewitness statements before the police investigators are able to do the same.  Police investigators can often intimidate civilian witnesses, or confront them with leading interview questions that are designed to shield involved officers and the department from civil liability.
    • Obtaining Video Evidence:   Ventura County Sheriff’s deputies now wear body cameras.   Video from the cameras can be extremely valuable to establishing any one of the available defenses to a Section 148 charge.  A fast-working criminal defense investigator can often locate smart phone video taken by eyewitnesses, or surveillance video from nearby homes and business.   The investigator should immediately go to the vicinity of the incident scene to determine if surveillance cameras exist.   Most surveillance systems typically only preserve video for one to two weeks due to file storage limitations.  Fast action is absolutely necessary.
    • Preserving Evidence of Injury:  Some officers will fail to document the injuries they inflict on arrestees, particularly in excessive force cases.  Bruising from handcuffs and other areas of the bodily should be photographed by an investigator.  Additionally, an attorney may suggest that the client seek a medical examination.

    If you obtain smart phone or surveillance video that is unknown to the police, it is strongly advised that you allow your attorney to view the video before taking it to the police agency.   If involved officers are allowed to view the video, they may alter their reports in a manner that accounts for the content of the video.  Many defense attorneys will delay the disclosure of beneficial video evidence to prosecutors and the court until the involved officers have already locked themselves down in their police reports and written probable cause declarations. Decisions of this nature must be made on a case-by-case basis.

    ABOUT THE AUTHOR

    Attorney William Haney is a former supervising prosecutor in the Ventura County District Attorney’s Office.   During his tenure as a supervising prosecutor, he oversaw all prosecutions involving misdemeanor and felony crimes committed against police officers.  Mr. Haney has trained hundreds of police officers from Ventura and Los Angeles counties concerning the lawful use of force and related topics.

    Mr. Haney is now a criminal defense attorney practicing in Ventura, California.  He also serves as an adjunct faculty member at Pepperdine University School of Law.

    SOURCES CITED / NOTES

    1  California Criminal Jury Instruction (CALCRIM) No. 2656.

    2 CALCRIM No.2656.  See also Pen. Code Section 7:  “‘Willfully'” when applied to the intent with which an act is done or omitted implies simply a purpose or willingness to commit the act, or make the omission referred to.  It does not require any intent to violate the law, or to injure another, or to acquire any advantage.

    3 Arias v. Amador (2014) 61 F.Supp.3d 960. However, the court noted that using vulgar language or being slow to respond to an officer’s commands is not necessarily sufficient to justify an arrest. Citing Mackinney v. Nielsen (9th Cir. 1995) 69 F.3d 1002, 1007.) A person also has the right to verbally challenge the police. See Mackinney, 69 F.3d at 1007.

    4 See In re Muhammed C. (2002) 95 Cal.App.4th 1325, 1330.

    5 Smith v. City of Hemet (2005) 394 F.3d 689, 695; see also In re Chase C. (2015) 243 Cal.App.4th 107, 113 [“because an officer has no duty to take illegal action, he or she is not engaged in ‘duties’ for purposes of an offense defined in such terms, if the officer’s condcut is unlawful”]

    6 Boarman v. County of Sacramento (2014) 55 F.Supp.3d 271.

    7 In re Chase (2015) 243 Cal.App.4th 107.

    8 Smith v. City of Hemet (2005) 394 F.3d 689, 695.

    9 Smith v. City of Hemet (2005) 394 F.3d 689, 695.

    10  See In re Juan A. (2014) 179 Cal.Rprt.3d 235, 241 [unpublished]

    11 Arias v. Amador (2014) 61 F.Supp.3d 960, 971.

    12 Arias v. Amador (2014) 61 F.Supp.3d 960, 971 [“Ninth Circuit law also clearly establishes the right to verbally challenge the police”]

    13 Arias v. Amador (2014) 61 F.Supp.3d 960, 972.

    14 Pen. Code Section 7(4); “Malice” in this context is different than “malice aforethought” referred to in a murder case. See CALJIC 1.22.

    15 California Criminal Jury Instruction No. 2653.

    16 California Criminal Jury Instruction No. 2653.

    17 California Criminal Jury Instruction No. 2653. See also Pen. Code Section 7:  “‘Willfully'” when applied to the intent with which an act is done or omitted implies simply a purpose or willingness to commit the act, or make the omission referred to.  It does not require any intent to violate the law, or to injure another, or to acquire any advantage.

    18 California Criminal Jury Instruction No. 2653.

    19 California Criminal Jury Instruction No. 2653.

    20 California Criminal Jury Instruction No. 2653.

    21 Penal Code Section 148(c). See also Penal Code Section 1170(h).

    22 California Criminal Jury Instruction No. 2654.

    23 California Criminal Jury Instruction No. 2654.

    24 California Criminal Jury Instruction No. 2654.

    25 California Criminal Jury Instruction No. 2654.

    26 California Criminal Jury Instruction No. 2654.

    27 California Criminal Jury Instruction No. 2654.

    28 See Truong v. Orange County Sheriff’s Dept. (2005) 129 Cal.App.4th 1423, 1427 [“[I]n order to maintain a claim for damages under section 1983 for harm caused by actions, which, if they were unlawful, would render a conviction invalid, the plaintiff must prove the conviction had been reversed or otherwise expunged.”    If you believe that you have a viable civil rights action against a police agency, you should contact an experienced civil rights attorney immediately.

    29  California Criminal Jury Instruction No. 2670.  Excessive force makes an arrest unlawful.  See People v. White (1980) 101 Cal.App.3d 161, 166-168.

    30  California Criminal Jury Instruction No. 2670.  See also Graham v. Connor (1989) 490 U.S. 386, 388.

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