State v. McNally
392 P.3d 721
| Or. | 2017Background
- Defendant refused a police order to leave a Greyhound bus station; officers later arrested him after a physical struggle. He was charged with interfering with a peace officer (ORS 162.247(1)(b)), resisting arrest, and criminal trespass.
- At trial defendant requested a jury instruction that passive resistance is a defense to the interfering-with-an-officer charge under ORS 162.247(3)(b); the trial court refused that instruction.
- The jury convicted on all counts; on appeal the Court of Appeals affirmed the interfering-with-an-officer conviction, holding "passive resistance" limited to acts or techniques associated with governmental protest or civil disobedience.
- This Court granted review to decide the meaning of "passive resistance" in ORS 162.247(3)(b) and whether the trial court erred by refusing the requested instruction.
- The Supreme Court held that "passive resistance" means noncooperation with a peace officer that does not involve violence or other active conduct (motivation or political purpose not required), reversed the Court of Appeals as to the interfering-with-an-officer conviction, and remanded for further proceedings.
Issues
| Issue | Plaintiff's Argument (State) | Defendant's Argument (McNally) | Held |
|---|---|---|---|
| Meaning of "passive resistance" in ORS 162.247(3)(b) | Should be limited — either to passive resistance to arrest or to deliberate, public, principled noncompliance (e.g., political protest) | Broad: any nonviolent, nonactive refusal to comply (no political motive required) | "Passive resistance" = noncooperation with a lawful peace-officer order that does not involve violence or active conduct; motive and protest-form are not required |
| Whether the trial court erred in refusing the passive-resistance instruction | Argues no error because exception should be narrow or limited to arrest/protest contexts | Instruction warranted because evidence supported nonviolent, passive noncooperation | Trial court erred; there was evidence sufficient to warrant the passive-resistance instruction; error was not harmless |
| Whether dictionary/legislative history limits "passive resistance" to protest contexts | State and some appellate authority relied on legislative references to civil disobedience to narrow the term | Defendant: dictionary/plain meaning supports broader nonviolent noncooperation definition | Court relied on dictionary/plain meaning and legislative history: history shows concern for protecting peaceful protest but does not limit the term to organized political protest |
| Constitutional / practical concerns about a broad definition (viewpoint discrimination and scope) | Broad definition risks swallowing the statute and may create enforcement problems; motive-based tests raise viewpoint-speech issues | Narrower motive-based tests are unworkable and risk unconstitutional content- or viewpoint-based distinctions | Court rejects motive-based limitation as unworkable and constitutionally problematic; adopts broad, conduct-focused definition to avoid viewpoint discrimination |
Key Cases Cited
- State v. McNally, 272 Or App 201 (Or. Ct. App. 2015) (Court of Appeals decision affirming conviction; interpreted "passive resistance" narrowly)
- State v. Patnesky, 265 Or App 356 (Or. Ct. App. 2014) (Court of Appeals case treating "passive resistance" as tied to protest/civil disobedience)
- State v. Reyes-Camarena, 330 Or 431 (Or. 2000) (standard of review for jury-instruction errors)
- State v. Simonov, 358 Or 531 (Or. 2016) (defendant entitled to instruction consistent with theory of case if correct statement of law and supported by evidence)
- State v. Gaines, 346 Or 160 (Or. 2009) (statutory interpretation: text, context, legislative history)
- South Beach Marina, Inc. v. Dept. of Rev., 301 Or 524 (Or. 1986) (legislature may use broader language than the specific problem that prompted enactment)
- DeBartolo Corp. v. Florida Gulf Coast Trades Council, 485 U.S. 568 (U.S. 1988) (canon: avoid constructions raising serious constitutional problems)
- R.A.V. v. St. Paul, 505 U.S. 377 (U.S. 1992) (content/viewpoint discrimination principles relevant to speech-restrictive statutes)
- State v. Walker, 356 Or 4 (Or. 2014) (use of ordinary meaning when term unspecified in statute)
- DCBS v. Muliro, 359 Or 736 (Or. 2016) (consult dictionaries for plain meaning when term undefined)