State v. Crane

• Decision Date: 09 June 1980
• Docket Number: No. DA,DA
• Citation: 612 P.2d 735,46 Or.App. 547
• Parties: STATE of Oregon, Appellant, v. Eddie Ray CRANE, Respondent. STATE of Oregon, Appellant, v. James David SIMPSON, Respondent. STATE of Oregon, Appellant, v. Shawn Dion SIMPSON, Respondent. 165557-7903; CA 16033,173934-7907; CA 16066, 173952-7907; CA 16078.
• Court: Oregon Court of Appeals

Page 735

612 P.2d 735

46 Or.App. 547

STATE of Oregon, Appellant, v. Eddie Ray CRANE, Respondent.

STATE of Oregon, Appellant, v. James David SIMPSON, Respondent.

STATE of Oregon, Appellant, v. Shawn Dion SIMPSON, Respondent.

No. DA 165557-7903; CA 16033, No. DA 173934-7907; CA 16066,

No. DA 173952-7907; CA 16078.

Court of Appeals of Oregon.

Argued and Submitted April 18, 1980.

Decided June 9, 1980.

Thomas H. Denney, Asst. Atty. Gen., Salem, argued the cause for appellant. On the brief were James A. Redden, Atty. Gen., Walter L. Barrie, Sol. Gen., and James M. Brown, Asst. Atty. Gen., Salem.

Emily Simon, Metropolitan Public Defender, Portland, argued the cause for respondents. With her on the brief were David Schermer, Oregon City, Martha Takaro, Certified Law Student, and Ellen Pitcher, Research Law Student, Portland.

David L. Slader, Portland, filed a brief amicus curiae for ACLU Foundation of Oregon, Inc.

Before GILLETTE, P. J., and ROBERTS and CAMPBELL, JJ.

GILLETTE, Presiding Judge.

This is one of three cases ¹ in which we are asked to decide the constitutionality of the Resisting Arrest statute, ORS 162.315. ² Each of the defendants in the cases now before us was charged with the misdemeanor of resisting arrest. Each demurred to the complaint, challenging the underlying statute as unconstitutional. The trial courts sustained the demurrers, concluding that the statute is unconstitutionally vague and overbroad, and dismissed the complaints. The state appeals. We reverse.

Defendants in these cases advance three arguments in support of their contention that the resisting arrest statute is unconstitutional. We deal with each in turn.

Defendants' first contention is that subsection (3) of ORS 162.315 interferes with their right to resist an unlawful arrest. The right to resist an unlawful arrest was established at common law. John Bad Elk v. United States, 177 U.S. 529, 20 S.Ct. 729, 44 L.Ed. 874 (1900); United States v. Di Re, 332 U.S. 581, 68 S.Ct. 222, 92 L.Ed. 210 (1948). The rule, as stated in Oregon, was that a person had the right to defend himself against an illegal arrest, "using no more force than reasonably necessary" to prevent the arrest. State v. Swanson, 119 Or. 522, 527, 250 P. 216 (1926); State v. Linville, 127 Or. 565, 273 P. 338 (1928); State v. Meyers, 57 Or. 50, 110 P. 407 (1910). The Oregon legislature specifically abrogated this right with the enactment of ORS 162.315 and ORS 161.260. ORS 161.260 provides that:

"A person may not use physical force to resist an arrest by a peace officer who is known or reasonably appears to be a peace officer, whether the arrest is lawful or unlawful."

The legislature, while recognizing the common law rule, rejected self help as a desirable means of challenging arrests made under color of state law. It decided that disputes concerning the legality of an arrest are best resolved in the courtroom and not on the streets.

"Resistance demands an escalation of force by the peace officer. Civil disorder and disrespect for the law is thereby threatened. Two important, and sometimes conflicting, interests must be balanced; the individual's right to bodily security measured against the threat to society posed by violent street confrontations between private citizens and the police. The Commission favors recourse by the aggrieved citizen to traditional tort remedies, which have been greatly liberalized in favor of the individual citizen." Proposed Oregon Criminal Code, 204 § 206, and 31 § 32, Commentary (1970), see also State v. Miller, 35 Or.App. 207, 215, 582 P.2d 1378, vacated on other grounds, 36 Or.App. 859, 585 P.2d 772 (1978).

The common law right to resist an unlawful arrest has been viewed with increasing disfavor by both courts and state legislatures. United States ex rel. Kilheffer v. Plowfield, 409 F.Supp. 677, 680 (E.D.Pa.1976); United States ex rel. Horelick v. Criminal Ct., City of New York, 366 F.Supp. 1140, 1151 (S.D.N.Y.1973), rev'd on other grounds 507 F.2d 37 (2nd Cir. 1974); Miller v. State, 462 P.2d 421, 426-27 (Alaska 1969); see also United States v. Simon, 409 F.2d 474 (7th Cir. 1969) cert. den. 396 U.S. 829, 90 S.Ct. 79, 24 L.Ed.2d 79 (1969); United States v. Heliczer, 373 F.2d 241 (2nd Cir. 1967) cert. den. 388 U.S. 917, 87 S.Ct. 2133, 18 L.Ed.2d 1359 (1966); United States v. Ferrone, 438 F.2d 381 (3rd Cir. 1971) cert. den. 402 U.S. 1008, 91 S.Ct. 2188, 29 L.Ed.2d 430 (1971); see generally Chevigny, The Right to Resist an Unlawful Arrest, 78 Yale L.J. 1128 (1969); Defiance of an Unlawful Authority, 83 Harvard L.R. 626 (1970). Although a constitutional basis for the right to resist an unlawful arrest has been suggested, the United States Supreme Court has declined to rule on the matter and the majority of courts considering the issue have failed to find such a constitutional right. See Chevigny, supra, 78 Yale L.J. at 1141; Wainwright v. City of New Orleans, 392 U.S. 598, 88 S.Ct. 2243, 20 L.Ed.2d 1322 (1968) (Douglas, J., dissenting) (suggesting a right rooted in the 4th Amendment); United States ex rel. Kilheffer v. Plowfield, supra; United states ex rel. Horelick v. Criminal Ct., City of New York, supra; People v. Curtis, 70 Cal.2d 347, 74 Cal.Rptr. 713, 450 P.2d 33 (1969); see also People v. Lattanzio, 35 A.D.2d 313, 316 N.Y.S.2d 163 (N.Y.App.1970). We, too, decline to recognize such a right.

An arrest is clearly a "seizure" as the term is used in the Fourth Amendment. An illegal arrest, i.e., an arrest without a warrant or probable cause, violates the Fourth Amendment prohibition against unreasonable searches and seizures. However, prohibiting resistance to an unlawful arrest does not add to the violation of the individual's Fourth Amendment rights. As the California Supreme Court has stated:

"While defendant's rights are no doubt violated when he is arrested and detained a matter of days or hours without probable cause, we conclude the state in removing the right to resist does not contribute to or effectuate this deprivation of liberty. In a day when police are armed with lethal and chemical weapons, and possess scientific communication and detection devices readily available for use, it has become highly unlikely that a suspect, using reasonable force, can escape from or effectively deter an arrest, whether lawful or unlawful. His accomplishment is generally limited to temporary evasion, merely rendering the officer's task more difficult or prolonged. Thus self-help as a practical remedy is anachronistic, whatever may have been its original justification or efficacy in an era when the common law doctrine permitting resistance evolved. Indeed, self-help not infrequently causes far graver consequences for both the officer and the suspect than does the unlawful arrest itself. Accordingly, the state, in deleting the right to resist, has not actually altered or diminished the remedies available against the illegality of an arrest without probable cause; it has merely required a person to submit peacefully to the inevitable and to pursue his available remedies through the orderly judicial process." People v. Curtis, supra, 70 Cal.2d at 353, 74 Cal.Rptr. at 716-17, 450 P.2d at 36-37 (emphasis supplied).

Assuming, as the California court apparently did, that forceable resistance to arrest was once justified we see no requirement that this continue to be true today. The expansion of procedural safeguards, such as the right to reasonable bail, the right to court appointed counsel at an early stage in the criminal process, and the right to a prompt judicial determination of probable cause following arrest, lessen the impact of an unlawful arrest. See United States ex rel. Kilheffer v. Plowfield, supra, 409 F.Supp. 677, 681; see also Miller v. State, supra, 462 P.2d at 426. Moreover, an individual who is arrested unlawfully is not without recourse. Release from illegal detention can be obtained by a writ of habeas corpus, ORS 34.310, and civil remedies are available to vindicate violation of an individual's constitutional rights.

Finally, we note that the right to resist even an unlawful arrest made under color of law is only partially abrogated. Only the use or the threatened use of violence or physical force which creates a substantial risk of physical injury is prohibited; neither flight to avoid arrest nor passive resistance have been made crimes. See State v. Swanson, 34 Or.App. 59, 62, 578 P.2d 411 (1978); Proposed Oregon Criminal Code § 206 Commentary (1970). Neither does the statute deny any citizen the right reserved to all citizens, even where the arrest is lawful, to resist an arrest made with excessive force. See, generally, ORS 161.235; 161.249; 161.195; 161.200; 161.209; see also State v. Matthews, 30 Or.App. 1133, 569 P.2d 662 (1977). ³

Respondents next two arguments are somewhat intertwined: They argue that subsection (2) of ORS 162.315 is both vague and overbroad. Specifically, they challenge the phrase "or any other means that creates a substantial risk of physical injury to any person," and the inclusion of "threats" in the conduct that is prohibited.

In some cases, the doctrines of vagueness and overbreath are distinguishable; in others they overlap.

"The former, originally a due process doctrine, applies when the statutory language is unclear, and is concerned with notice to the potential wrongdoer * * *. The doctrine of overbreadth, in contrast, is exclusively a First Amendment product, and usually applies when the statutory language is clear, but encompasses activities in which people have a right to engage without interference. However, in a suit challenging an ambiguously worded statute for infringing upon First Amendment rights, the doctrines bland." United States v. Lambert, 446 F.Supp. 890, 897 (D.Conn.1978).

The defendants seem to raise these arguments both separately and in conjunction.

We turn first to the contention that use in subsection (2) of the words "any other means that...