State v. UnderwoodState v. Underwood
{¶ 1} Dеfendant, Joseph Underwood, is charged with obstructing official business in violation of
No person, without privilege to do so and with purpose to prevent, obstruct, or delay the performance by a public official of any authorized act within the public official’s official capacity, shall do any act that hampers or impedes a public official in the performаnce of the public official’s lawful duties.
{¶ 2} Defendant’s encounter with police on February 2, 2005, began when Joshua Younger, a cashier at a Kroger store, alerted a police officer working a security detail that defendant had left the store without paying for store merchandise. When Officer Eric Carpenter heard the cashier shout “shoplifter,”
{¶ 3} Officer Carpenter strained a muscle in his calf while chasing defendant, so he called fоr other officers to assist him. After a pursuit of two to three minutes and then a brief struggle, Officer Carpenter arrested defendant and charged him with theft
{¶ 4} Officer Carpenter, a veteran Cincinnati pоlice officer, was in full uniform and equipped with a firearm when these events occurred. He was working a private-duty security assignment in a Kroger store in Cincinnati.
{¶ 5} Defendant does not dispute that he ran when the officer ordered him to stop and that, as a result, he obstructed the officer’s efforts to subdue him. Rather, his defense to this charge is that since the officer was on the payroll of a private entity, namely, the Kroger Company, he was not a “public official” performing “any authorized act,” as must be shown to sustain a conviction for obstructing official business. Thus, the defensе urges, if an alleged thief runs from a uniformed officer who is working a private detail, he cannot be found guilty of obstructing official business in violation of
{¶ 6} The construction that defendant urges here has found some adherents in other states. See, e.g., Annotation, Performance of Public Duty by Off-Duty Police Officer Acting as Private Security Guard (1999),
{¶ 7} The question of whether an officer in full uniform, working a private security detail is a “public official” has not been determined in Ohio with regard to a charge of obstructing official business. Nevertheless, Ohio has statutes and case law that shed light on this issue.
{¶ 8} “Public officials” include law-enforcement officers.
{¶ 10} Assessing the status of the officer to determine whether the charge could stand, the Tenth District Court оf Appeals reasoned:
A duly commissioned police officer holds a public office upon a continuing basis. The officer here remained an officer of the law, and his obligation to preserve the peace was not nullified by the fact he was working for Kroger in this case. Notwithstanding, the officer, even though acting as a private security policeman, had the right and duty to arrest and detain a person who was violating a law of this state or an ordinance of the city of Columbus until a warrant could be obtained.
Id. at 1204.
{¶ 11} Other Ohio decisions in resisting-arrest cases have followed the reasoning in Glover. See, e.g., State v. Brown, 7th Dist. No. 99 CA 132,
{¶ 12} The court in State v. Duvall (June 6, 1997), 11th Dist. No. 95-P-0140,
{¶ 13} In Duvall, off-duty, uniformed officers who were paid by a school system to provide security at a football game were assaulted by defendаnts, Fred and Jason Duvall. Charges of assault on a peace officer were filed. To sustain this charge, the state needed to show that the peace officer in question was perfоrming his official duties as mandated in
{¶ 14} Discussing this issue in detail, the Eleventh District Court of Appeals Court referred to a police officer’s duties as defined by state statute, rule, regulation, and usage, noting that
{¶ 15} Noting that several Ohio courts, including the court in Glover, have held that an officer has an obligаtion to observe and enforce the laws of this state when off duty, the court concluded:
[T]o determine what comprises a peace officer’s “official duties,” the court must look аt the activities in which the peace officer was engaged when he was assaulted. If the peace officer was engaging in a duty imposed upon him by statute, rule, regulation, ordinance or usage, regardless of his duty status, that officer is “in the performance of [his] official duties” for purposes of [the assault-on-a-police-officer] section. This general precept is limited to activities occurring within the peace officer’s territorial jurisdiction,R.C. 2935.03 and 4506.23, and, in certain circumstances, while the peace officer is in uniform, [Evid.R.] 601(C).
Duvall, 11th Dist. No. 95-P-0140,
{¶ 16} The court thus decided that under the facts in Duvall, the officers were pursuing thеir official business when they patrolled or monitored the crowd and were working to “preserve the peace.” Accordingly, the defendants were properly charged with and convicted of assaulting a peace officer in the performance of his official duties.
{¶ 17} The statute cited in Duvall,
The police force of a municipal corporation shall preserve the peace, protect person and property, and obey and enforce all ordinances of the legislative authority of the municipal corporation, all criminal laws of the state and the United States * * *.
{¶ 19} Turning to the facts of this case and applying the criteria cited in Duvall and Glover, the court finds that оn the date in question, Officer Carpenter, a Cincinnati police officer working a security detail in Cincinnati, was a public official performing an authorized action within his official capacity as must be shown to secure a conviction under
Notes
. The theft charge is not an issue here.
. According to the annotation, various courts have found that an officer's official duty (1) continues at all times, even in off hours, (2) ends with private employment, (3) ends with lack of a police assignment, and (4) continues in accord with public policy.
. This view has been adopted in a slim majority of other states. Annotation, supra,