Tuesday, May 8, 2018
Page 1
Ninth Circuit:
Man Committed No Crime by Shouting at Officers, Refusing to Come Out of House
Defendant, Whose Probation Was Revoked in Part Based on Delaying Police, to Be Resentenced Based on Other Violations; Slated to Be Released Tomorrow
By a MetNews Staff Writer
Two members of a three-judge panel of the Ninth U.S. Circuit Court of Appeals have declared that a man did not commit an interference with police officers based on his shouting and cursing at them, running into his house, and remaining there for about 15-20 minutes although he could hear them ordering him to exit, and coming out only after they threatened to break down the door.
The effect of the decision is not, however, to reverse a conviction for such an alleged interference by defendant Kenneth Carter but to reverse a revocation of probation to the extent it was predicated on the “new offense” of such interference and on one other basis. Had the opinion been filed the day after tomorrow, the matter would have been moot because Carter, who was sentenced, following the revocation, to two years imprisonment, is scheduled to be released from a half-way house that day.
Friday’s reversal means that Chief Judge Lawrence J. O’Neill of the Eastern District of California will be required to decide the sentence anew based solely on two other violations which Hunter admitted: not completing a drug rehabilitation program and failing to follow an instruction of the probation officer.
Circuit Judge Marsha S. Berzon and District Judge Terrence Berg of the Eastern District of Michigan, sitting by designation, formed the majority in holding that O’Neill erred in finding that Carter violated probation by committing a new offense in the form of breaching California Penal Code §148. That section brands as a misdemeanant anyone “who willfully resists, delays, or obstructs any…peace officer.”
Circuit Judge J. Clifford Wallace dissented from that portion of the opinion, but agreed with Berzon and Berg that the revocation was faulty to the extent it was founded on Carter knowingly associating with a felon. The felon was Carter’s stepson; there was no finding by O’Neill that Carter had knowledge of the conviction and only circumstantial evidence that he did know of it.
Events leading to the arrest of Carter by Fresno police followed a vehicle stop, the legitimacy of which was not contested. It occurred a short distance from his home.
His ensuing conduct in shouting at officers and verbally abusing them occurred outside his house. After he retreated into his abode, as one officer directed him to do, he was advised, while inside, that he was under arrest and was to present himself.
By delaying in adhering to that command, Berzon and Berg said, he did not violate §148, contrary to the finding by O’Neill.
Conduct Not Criminal
They said, in a memorandum opinion:
“[V]erbal criticisms directed at police officers are not, standing alone, sufficient to support a charge of interfering with police activity….Furthermore, Carter’s decision to run back into his residence could not have been interference….Thus, a rational fact finder could not conclude by a preponderance of the evidence that Carter committed a new law offense under §148 based on Carter verbally criticizing the officers and running back into his home.”
The opinion continues:
“The district court also found that Carter violated California Penal Code §148 and so committed a new law violation when, after being ordered back out of his home, he delayed for 15 to 20 minutes before complying. However, to be guilty of an offense under §148, a person must resist, obstruct, or delay officers who are acting lawfully at the time of the resistance, obstruction, or delay….Accordingly, if the record does not contain sufficient evidence that, at the time Carter delayed coming out of his house, the officers had a lawful basis to order him outside for arrest, there can be no violation of §148.”
Gun Threat
Police insisted that Carter, as he went to his home, uttered a threat to get a gun. He was arrested for a violation of Penal Code §69(a) which provides that anyone “who attempts, by means of any threat or violence, to deter or prevent an executive officer from performing any duty imposed upon the officer by law” has committed a misdemeanor.
No prosecution was brought based on the purported threat, and there was a testimonial conflict in the proceeding before O’Neill as to whether Carter had made the remark ascribed to him.
With no adequate basis for Fresno police to arrest Carter for violating §69, the opinion declares, “there was also no adequate basis for an order to leave the home,” and therefore no violation of §148 based on Carter’s delay in complying with the order.
Wallace’s Partial Dissent
Wallace disagreed, saying:
“Here, the district court found as a fact that Carter heard the officers’ announcements, but stayed inside the house. While Carter testified that he waited to come out until police called his name specifically, his exit also coincided with when police yelled they were about to break down his door and send in a canine. The government has the better argument. Viewing the evidence in the light most favorable to the government, that Carter responded to the officers’ increasingly serious threats shows he knew they were calling him, and affirmatively defied their orders to come out….
“The majority concludes that the officers had no lawful basis to order Carter outside for arrest, and therefore were not acting lawfully at the time of his resistance. I disagree. The district court found as a fact that, regardless of what Carter actually said, the officers reasonably believed he was going to get a gun. Further, Carter has not challenged this element of section 148. While Carter argues that he was not under arrest when first ordered to return to the house, nowhere does he contend that the officers acted unlawfully by later ordering him to exit it.”
Oral Argument
During oral argument on March 15, Wallace asked Carter’s appointed attorney, Johanna S. Schiavoni of San Diego why the court should act in the matter, given the imminence of her client’s release.
“Even if you’re right on,” the judge said, “he’s served his time. What can we do?
“Isn’t it sort of mooted out?”
The lawyer responded:
“It is important to criminal history….It does have future importance if there was insufficient factual/legal basis [for] these two revocations.”
Wallace rephrased her argument as being that there would be “less of a record in case he gets into mischief in the future.”
Berzon’s Remarks
Berzon made clear her view of the case by querying Schiavoni, rhetorically, what authority the police had to order Carter to exit his house, continuing:
“What’s the difference if there was a delay or wasn’t a delay? I mean, why is it a lawful order to somebody to come out of your house if you have no reason to tell him to come out of your house?”
Schiavoni stressed that the only finding of probable cause O’Neill made was in connection with the vehicle stop. However, Assistant U.S. Attorney Amanda Beck of the Northern District of California argued that the revocations should be affirmed because the evidence was such that a reasonable trier of fact could find probable cause for ordering Carter out of his house and arresting him.
Berzon commented that such would entail fact finding by an appellate court and said she did not see such “completely unique circumstances” as to warrant that.
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