487 P.3d 862
Or. Ct. App.2021Background:
- Defendant was asked on a TriMet train to show proof of fare, ignored the fare inspector, and walked off the train.
- A uniformed officer ordered defendant to stop and show fare; defendant continued walking at a steady pace despite three repeated orders.
- Two officers seized defendant by the arms to stop her; she was charged with interfering with a peace officer (ORS 162.247(1)(b)) and convicted by a jury.
- At the close of the state’s case, defendant moved for judgment of acquittal arguing her conduct was "passive resistance" and thus exempt under ORS 162.247(3)(b); the trial court denied the motion.
- On appeal defendant argued that uninterrupted walking in response to the order constituted passive resistance; the court considered whether walking is "active" or "passive" conduct for the statutory exemption.
Issues:
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether continued walking after a lawful order is "passive resistance" under ORS 162.247(3)(b) | Walking away is active, physical conduct and cannot be passive resistance | Continued walking without altering conduct is noncooperation that qualifies as passive resistance and is exempt | Walking is active physical conduct; passive-resistance exemption does not apply; conviction affirmed |
| Whether passive-resistance allocation/burden affects review of judgment of acquittal | State contended passive resistance is an affirmative defense (burden on defendant) (raised on appeal) | Defendant treated passive resistance as the substantive exemption raised at trial | Court did not decide burden issue because it affirmed on the merits (did not reach state’s new argument) |
Key Cases Cited
- State v. McNally, 361 Or 314 (interpreting "passive resistance" as noncooperation that does not involve active physical conduct)
- State v. Almahmood, 308 Or App 795 (passenger fare-inspection order requires individualized reasonable suspicion)
- State v. Simmons, 279 Or App 756 (standard for reviewing denial of judgment of acquittal)
- State v. Hirschman, 279 Or App 338 (statutory-construction review is legal error review)