Saturday, February 23, 2013

Evading Arrest

Reflecting on the astonishing tragedy surrounding the rampage of former LAPD officer Christopher Dorner, my thoughts go out to the victims of Dorner’s rampage. In particular, I'm thankful for the heroic efforts of the officers who finally tracked Dorner down and ended his killing spree; even at the cost of an officer’s life, a risk our police forces willingly face every single day.

Evading Police

Given the drawn out nature of the week-long manhunt, I'm reminded of California’s web of Penal Codes designed to deter suspects from evading police; and punish those who do. Centered around section 148(a)(1) of the code, California’s resisting arrest laws are somewhat broader than most people may realize.

Under the Code, individuals are prohibited from resisting, delaying, or otherwise obstructing either a law enforcement officer or an emergency medical technician (EMT) who is performing his/her duty. While the common scenario involves physically resisting arrest in some way, the law also covers non-violent forms of obstruction and applies equally to suspects and the general public.

For example, attempting to interact with a suspect in a way that disregards the orders of a police officer might qualify, as would efforts to slow down an ambulance, attempts to hide your identity during a booking, or seeking to evade police during a pursuit. As these examples demonstrate, the law is rather broad. Generally, doing something that substantively impedes the work of a police officer or EMT may result in a violation of PC 148(a)(1) (though usually not merely disagreeing with an officer or even some amount of yelling back)

Specifically, the prosecution must prove that (1) there was police officer or emergency medical technician lawfully performing, or attempting to perform, his/her duty, (2) that the suspect willfully resisted, delayed, or obstructed that officer or EMT, and (3) that the suspect knew, or reasonably should have known, that the officer or EMT was engaged in those duties.

The primary components of the charge involve two things: the lawful execution of a duty by an officer or EMT and willful obstruction by a suspect. This leads to a couple of obvious defenses. The first is in the nature of self-defense. If an officer is using excessive force or otherwise making an illegal arrest (such as on false charges) you shouldn't be convicted for resisting the unlawful arrest. Second, merely accidently obstructing an officer doesn't qualify, the obstruction must be intentional.

Assaulting an Officer

While a violation of California’s resisting arrest law is only chargeable as misdemeanor, specific acts intended to disrupt the work of a police officer might qualify as a felony under related laws. The Penal Code has specific sections dealing with assaulting a police officer, taking an officer’s weapon during an arrest, obstructing the work of other Executive Officers (including police), filing false police reports, and giving false information to a police officer.  In addition, California’s vehicle code contains two specific prohibitions on using a vehicle to evade police pursuit.

Felony Murder

Finally, California’s Felony Murder rule might allow for a murder charge if someone dies while a suspect is engaged in any felony from the above list (for example during a felony high-speed chase); even if the death was the result of an unfortunate accident.

Protecting your rights

Despite the fact that many of the violations listed above do not qualify as felonies, it’s imperative that you take such charges seriously. If you are convicted of resisting arrest, your future encounters with law enforcement might be much more difficult. It’s understandable that officers will be more cautious (or aggressive) with someone who has a history of resisting arrest and you do not want to face unnecessary police action for the rest of your life. This is particularly true in situations where police are prone to utilize racial profiling or where an officer is inclined to exercise excessive force.

If you are charged with resisting arrest or any of the other crimes we've discussed above, it’s imperative that you seek immediate legal help. Contact a qualified attorney now to avoid jeopardizing your legal rights.

Wednesday, February 6, 2013


Legislative Vigilante Justice

In late January, California Assemblyman Curt Hagman retrieved his car from valet parking at a Sacramento restaurant only to find that his back window had been smashed and his briefcase stolen.  Hagman, who owns a bail bond company, made news when he took matters into his own hands by tracking the suspects to a nearby gas station using a signal broadcast from his stolen iPad. The suspects took off but Hagman got the vehicle’s plate number. Police later found and charged the individuals responsible; however, Hagman never did get back his briefcase.

The fact that Hagman was almost run over by the suspects after confronting them at the service station highlights why you should never attempt to justice into your own hands. For our purposes however, his unfortunate experience also makes a great example of the crime of burglary. Under California law, a burglary is the entering of a premises with the intent to commit either a felony or a theft therein. While this definition may seem relatively straightforward, there are actually a number of nuances in the law; not the least of which is the fact that a burglary can be charged as either a felony or a misdemeanor depending on the circumstances.

Burglary Charges

To be convicted of a burglary, the prosecution must prove that a suspect 1) entered a 2) building (or other specified premises) with the 3) intent to steal something or commit a felony. If the premises in question is a residence (meaning a place where someone lives or sleeps, even if they are not home at the time) then the crime is a felony. If the premises is not a residence (such as a shop or warehouse) than the crime can be charged as a misdemeanor.

In general, courts have been fairly willing to broadly define what constitutes both a building and what it means to “enter” that building. The gist is that anytime you cross into someone else’s premises (either with a part of your body or an object you control) you have entered that premises. You don't have to go all the way in. Simply reaching into a window or knocking something off a ledge might suffice.

The law gets a bit trickier with respect to intent. Generally, if you enter the premises in question with the idea of committing a crime planted in your mind, you probably meet the intent requirement. The crime you intend to commit does not have to take place while you are in the premises. In fact, you don't even need to actually commit the crime at all; you just have to intend to do so at the time you cross into the premises.

Proving their case

Broad as intent might be under black-letter law, proving intent beyond a reasonable doubt can be very difficult. The prosecution will have to convince the judge or jury that you had a specific idea in your head at a specific time. Because only you know what’s going on between your ears, the prosecution must necessarily rely on what we call circumstantial evidence (unless you confess). For example, if you are caught breaking into a home with a lock-pick and a bag while dressed in dark clothing in the dead of night, there is good reason to believe you intended to steal something from that home. However, if you are charged with burglary for stealing something from a store, it may be harder to prove that you entered the store with the intent to steal; perhaps you really were there just to shop for groceries and made the decision to steal on an impulse.

The devil in the details

As with any crime, the devil is in the details. In our opening example involving Assemblyman Hagman’s stolen briefcase, a clear burglary took place. It’s almost certain that the suspects broke the back window with the purpose of stealing the case. However, even if they broke the window before they even knew the case was inside, they would have committed a burglary when they reached into the car to pick it up. This is because at the time the suspect stuck his hand past the invisible line where the window used to sit; he thereby crossed into a premises with the intent to steal and thus his actions seem to meet the requirements for a burglary conviction.

Because of the possible complexities involved in a burglary prosecution, its critical to contact an attorney if you or someone you know has been charged with this crime.