401 P.3d 297
Or. Ct. App.2017Background
- Defendant stopped for traffic violations and twice refused officers’ lawful order to produce identification; she remained calm, polite, nonviolent, and asked officers questions and recorded the encounter.
- State charged defendant with interfering with a peace officer (IPO), ORS 162.247(1)(b); trial court denied defendant’s judgment of acquittal motion and a jury convicted her of IPO.
- Defendant appealed the IPO conviction to the Court of Appeals; the court initially affirmed without a written opinion.
- After that decision, the Oregon Supreme Court decided State v. McNally, which redefined the statutory passive-resistance exception to IPO and expressly abrogated the narrower Court of Appeals interpretation in Patnesky.
- On joint petition for reconsideration, the parties agreed McNally’s broader definition of "passive resistance" applied, and the Court of Appeals reconsidered under the new law.
- Court reconceptualized the issue under McNally’s definition and reversed defendant’s IPO conviction because her conduct was noncooperation without violence or active measures (i.e., passive resistance).
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether defendant’s refusal to present ID during a traffic stop constitutes "passive resistance" (an exception to IPO) under ORS 162.247 | State: conduct not akin to civil-disobedience-style passive resistance; comparable to Rice and Patnesky examples of non-protected refusal | Defendant: refusal was passive resistance; alternatively, Patnesky too narrow and passive resistance should include any nonviolent, nonactive refusal | Held: Under McNally’s definition, refusal to provide ID was passive resistance (noncooperation not involving active conduct); IPO conviction reversed |
Key Cases Cited
- State v. McNally, 361 Or 314, 392 P3d 721 (2017) (interprets "passive resistance" as nonviolent, nonactive noncooperation with a lawful order)
- State v. Patnesky, 265 Or App 356, 335 P3d 331 (2014) (Court of Appeals’ narrower definition of passive resistance as protest-related acts; later abrogated by McNally)
- State v. Rice, 270 Or App 50, 346 P3d 631 (2015) (refusal to open a door to an officer not found to be passive resistance under Patnesky)
- State v. McNally, 272 Or App 201, 353 P3d 1255 (2015) (Court of Appeals decision reversed by the Supreme Court in McNally)
- State v. Jury, 185 Or App 132, 57 P3d 970 (2002) (appellate principle that error is determined by law as of the time appeal is decided)