Metropolitan News-Enterprise


Friday, September 30, 2005


Page 3


Appeals Court: Fleeing Arrest Is Willful Resistance


By DAVID WATSON, Staff Writer


Fleeing from a police officer attempting to make a lawful arrest is willful resistance under a statute that makes such resistance a crime when it results in injury to the officer, the First District Court of Appeal ruled yesterday.

The court’s Div. Three said Solano Superior Court Judge Robert S. Bowers erred in throwing out charges against Richard James Ferguson. Prosecutors claimed a sheriff’s deputy broke his arm when he fell chasing Ferguson through residential back yards after trying to arrest him on outstanding warrants.

Penal Code Sec. 148.10(a) provides that every person “who willfully resists a peace officer in the discharge or attempt to discharge any duty of his or her office or employment and whose willful resistance proximately causes death or serious bodily injury to a peace officer” is guilty of either a felony or a misdemeanor.

Writing for herself, Justice Stuart Pollak, and Presiding Justice William R. McGuiness, Justice Joann C. Parrilli said the issue was one of first impression.

She cited a dictionary definition of resistance as “passive or active opposition.”

The justice explained:

“Resistance, at least in common parlance, does not require actual force directed against the person or thing that is being resisted. The usual and ordinary meaning of resistance would appear to encompass flight, which is an act of opposition by refusing to submit to a lawful command to stop.”

She noted that the history of the law suggested it was modeled on Vehicle Code Sec. 2800.3, which criminalizes fleeing in a vehicle from a peace officer when it proximately causes death or serious bodily injury to any person. The measure was “designed to fill the gap in the law that limited a fleeing suspect’s criminal liability to a misdemeanor even when the pursuing officer was killed or seriously injured during a pursuit on foot,” Parilli said.

The bill enacting the law was sponsored by former Sen. Quentin Kopp of San Francisco in response to two incidents in which San Francisco police officers were killed or seriously injured while pursuing suspects on foot, the jurist observed.

“In short,” she wrote, “not only does the legislative history indicate the Legislature’s intent to include flight within the definition of ‘willful resistance,’ but flight on foot was precisely the situation the statute was intended to cover.”

Bowers probably ruled the way he did because he did not have the legislative history before him, she said.

The case is People v. Superior Court(Ferguson), A111119.


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