State v. Kurtz

• Decision Date: 25 March 2011
• Docket Number: (CC 05FE0031; CA A132184; SC S058346).
• Parties: STATE of Oregon, Petitioner on Review,v.Thomas Everett KURTZ, Respondent on Review.
• Court: Oregon Supreme Court

350 Or. 65

249 P.3d 1271

STATE of Oregon, Petitioner on Review,

v.Thomas Everett KURTZ, Respondent on Review.

(CC 05FE0031; CA A132184; SC S058346).

Supreme Court of Oregon.

Argued and Submitted Nov. 9, 2010.Decided March 25, 2011.

On review from the Court of Appeals.^*Janet A. Klapstein, Assistant Attorney General, Salem, argued the cause for petitioner on review. With her on the brief were John R. Kroger, Attorney General, and Mary H. Williams, Solicitor General.Marc D. Brown, Deputy Public Defender, Office of Public Defense Services, Salem, argued the cause for respondent on review. With him on the brief was Peter Gartlan, Chief Defender.Before DE MUNIZ, Chief Justice, and DURHAM, BALMER, KISTLER, WALTERS, and LINDER, Justices.^**DE MUNIZ, C.J.

Warm Springs Tribal Police Officer Davino observed defendant commit a traffic violation on the Warm Springs Indian Reservation and signaled defendant to stop his vehicle. Defendant did not stop his vehicle until after he had crossed the reservation boundary into Jefferson County. During the traffic stop, an altercation occurred between Davino and defendant. As a result, defendant was charged in Jefferson County Circuit Court with fleeing or attempting to elude a police officer, ORS 811.540, and resisting arrest by a peace officer, ORS 162.315. At trial, defendant moved for a judgment of acquittal on both charges, arguing that Davino was neither a “police officer” for purposes of ORS 811.540 nor a “peace officer” for purposes of ORS 162.315.¹ The trial court denied defendant's motion and found defendant guilty on both charges.

Defendant appealed, and the Court of Appeals reversed defendant's convictions, concluding that, because Davino was a tribal police officer and not a police officer employed by an Oregon governmental unit, Davino was neither a “police officer” nor a “peace officer” for purposes of the fleeing or attempting to elude a police officer statute and the resisting arrest statute. State v. Kurtz, 233 Or.App. 573, 228 P.3d 583 (2010). This court allowed the state's petition for review to consider whether the legislature intended to include tribal police as “police officers” and “peace officers” within the relevant statutes. As we will explain, we conclude that, for purposes of the crimes of fleeing or attempting to elude a police officer and resisting arrest, the legislature intended the statutory terms “police officer” and “peace officer” to include tribal police officers such as Davino. We therefore reverse the Court of Appeals decision and affirm the trial court's judgment.

We take the facts from the record and the Court of Appeals opinion:

“The case was tried to the court, and the court made the following factual findings:

“ ‘Joseph Davino is a full time commissioned officer working for the Confederated Tribes of Warm Springs. Officer Davino was hired by Warm Springs on October 25, 2004.

“ ‘[Defendant] is a non–Indian who lives on the Warm Springs Indian Reservation.

“ ‘ * * * * *

“ ‘During Officer Davino's shift on January 19, 2005, he observed a vehicle driven by [defendant] on Highway 26. The two were traveling in opposite directions and Officer Davino thought [that defendant] was appearing to hide from him as they passed.

“ ‘Officer Davino turned his vehicle around and followed the car driven by [defendant]. Officer Davino testified that he followed the vehicle for approximately one mile and the driver and passenger appeared nervous.

“ ‘At a point very close to the reservation boundary [defendant] turned around to look at Officer Davino. When [defendant] turned around, his vehicle went across the center line and into the oncoming traffic lane of travel.

“ ‘Officer Davino activated his overhead lights to stop the vehicle driven by [defendant] for a traffic offense committed in the officer's presence.

“ ‘The vehicle didn't respond to the overhead lights and proceeded to go over the bridge across the Deschutes River that is the boundary of the Reservation.

“ ‘Officer Davino activated his siren near the boat entrance to the Deschutes River which is located off the Reservation and at this point believed that he had probable cause to stop the vehicle for the crime of Attempt to Elude Police with a Vehicle.

“ ‘The driver of the vehicle eventually pulled over. The passenger in the vehicle fled by foot. The driver of the vehicle [defendant] was detained at gun point and placed under arrest.’

“Defendant subsequently resisted arrest and was subdued with the assistance of additional tribal police officers and pepper spray. Davino was driving a marked Warm Springs patrol car and wearing his Warm Springs Police uniform at the time of the traffic stop. Davino was not deputized by the Jefferson County Sheriff nor had he attended the Oregon Police Academy at that time.”Kurtz, 233 Or.App. at 575–76, 228 P.3d 583 (quoting the trial court's findings of fact; brackets in original).

On appeal, the Court of Appeals separately analyzed the statutes describing “police officer” and “peace officer” to determine whether the legislature intended to include tribal police within those statutory terms. The Court of Appeals first considered whether Davino was a “police officer” under ORS 801.395.² In doing so, the Court of Appeals—identifying a common characteristic shared by the officers listed in the statute—concluded that tribal police fell within the dictionary definition of “police officer” and shared many of same functions as the listed officers, i.e., enforcing laws, maintaining order, and working for a governmental entity responsible for those functions. However, that court concluded that the term “police officer,” as used in ORS 801.395, was limited to officers employed by a governmental entity of the State of Oregon, or a county or city within the state. The Court of Appeals reasoned that, because Davino was employed by the Confederated Tribes of Warm Springs, a separate sovereign, Davino was not a police officer within the meaning of ORS 801.395, and therefore defendant had not attempted to elude a “police officer” in violation ORS 811.540. Id. at 582, 228 P.3d 583.

The Court of Appeals turned next to the definition of “peace officer,” set out in ORS 161.015(4), observing that the types of law enforcement officers identified in that statute also shared a common limiting characteristic—they were all agents of an Oregon governmental entity whose authority was designated by Oregon law. Viewed in that light, the Court of Appeals reasoned that the concluding phrase in ORS 161.015(4)—“and such other persons as may be designated by law”—was meant to include only those officers designated as “peace officers” by state law. The Court of Appeals held that, because no Oregon statute designated tribal police as “peace officers,” Davino was not a “peace officer” within the meaning of ORS 161.015(4) and, therefore, defendant had not resisted arrest by a peace officer in violation of ORS 162.315. Id. at 584, 228 P.3d 583. As noted, we allowed the state's petition for review to determine whether the legislature intended to include tribal police as “police officers” and “peace officers” in the pertinent statutes.

On review, the state argues that, in restricting both statutory terms to “agent[s] of an Oregon governmental entity,” the Court of Appeals erroneously ignored the most common characteristic of all the types of law enforcement officers listed in ORS 801.395 and ORS 161.015(4)—all are law enforcement officers whose central duties are to enforce state and local laws. For his part, defendant reiterates that Davino was not a “police officer” or a “peace officer” because “tribal police” are not (1) expressly listed under the pertinent statutes, (2) employed by an Oregon governmental entity, or (3) deputized or commissioned by an Oregon law enforcement agency. To resolve the parties competing arguments, we turn first to the relevant statutes.

The crime of fleeing or attempting to elude a police officer is part of the Oregon Vehicle Code and is set out in ORS 811.540. That statute provides, in part:

“(1) A person commits the crime of fleeing or attempting to elude a police officer if:

“(a) The person is operating a motor vehicle; and

“(b) A police officer who is in uniform and prominently displaying the police officer's badge of office or operating a vehicle appropriately marked showing it to be an official police vehicle gives a visual or audible signal to bring the vehicle to a stop, including any signal by hand, voice, emergency light or siren, and either:

“(A) The person, while still in the vehicle, knowingly flees or attempts to elude a pursuing police officer[.]”

For purposes of ORS 811.540, the term “police officer” is defined in ORS 801.395, which provides:

“ ‘Police officer’ includes a member of the Oregon State Police, a sheriff, a deputy sheriff, a city police officer, a Port of Portland peace officer or a law enforcement officer employed by a service district established under ORS 451.410 to 451.610 for the purpose of law enforcement services.”

(Emphasis added.)

The crime of resisting arrest is part of the Oregon Criminal Code and is set out in ORS 162.315, which provides, in part:

“(1) A person commits the crime of resisting arrest if the person intentionally resists a person known by the person to be a peace officer or parole and probation officer in making an arrest.

“ * * * * *

“(3) It is no defense to a prosecution under this section that the peace officer or parole and probation officer lacked legal authority to make the arrest or book the person, provided the officer was acting under color of official authority.”

For purposes of that statute, the term “peace officer” is defined in ORS 161.015(4), which provides:

“1‘Peace officer’ means a sheriff, constable, marshal, municipal police officer, member of the Oregon State Police, investigator of the Criminal Justice Division of the Department of Justice or investigator of a district...