This author is not a big fan of lawyer shows or movies. It’s difficult to sit there and watch the screen writers and the actors butcher trials and law practice generally. However, this author was touched by the movie “A Few Good Men“. In the movie, Tom Cruise makes the statement: “A trial is an exercise in placing blame”.
Nowhere is that concept more acute than in criminal and civil actions that involve issues of whether the police violated your constitutional rights. After all, whether you’re being criminally prosecuted for some “resistance offense”, or you’re suing the police in court, it’s not just your conduct that’s at issue; it’s also the conduct of the police. This makes these “resistance offense” statutes unique in criminal cases, and, all too often the all purpose tool of government oppression in modern America. As explained below, these various “resistance offenses”, especially Section 148(a)(1), all require that the “victim” officer must have been “lawfully engaged in the performance of his duties” in order for you to be guilty of interfering with those duties. Lawful performance of duties requires that the officer be acting lawfully, as an officer has no duty to act unlawfully. See, People v. Curtis, 70 Cal.2d 347 (1969). You can’t kill a dead man, and you can’t be guilty of “resisting” or “delaying” or “obstructing” a peace officer unless the officer was acting lawfully. However, if you are convicted of such a crime, you are now basically from obtaining civil redress for the outrages perpetrated against you.
So Ladies and Gentlemen, if the police then, can procure your conviction for some “resistance offense”, the issue of who’s at fault, of whether or not the police are civilly liable to you, has now been determined against you. You’re out of luck. If you’re convicted, you’re almost always precluded from suing the police. See, Heck v. Humphrey, 512 U.S. 477 (1994). Therefore, the policeman (or lady) who abused you has a great interest in procuring your bogus criminal prosecution and, your bogus conviction for some resistance offense. Such a conviction decides “who’s at fault”. It decides the issue of whether or not the police unlawfully arrested you, or unlawfully searched you or your vehicle or home, or used unreasonable force upon you, or procured your bogus and malicious criminal prosecution, or otherwise violated your constitutional rights.
If you are convicted of any sort of “resistance offense”, you now lose most, if not all, of any possible civil claims for monetary redress; notwithstanding how egregious and provable your claim is. Moreover, very often, this “blame shifting”, is the product of ambitious young Deputy District Attorneys trying misdemeanor cases, who are trying to make a name for themselves with the local constabulary. These young ambitious Deputy District Attorneys are more than cooperative, in engaging in “creative” interpretations of nebulous “resistance offenses”, to file and prosecute bogus “resistance offense” criminal actions against the real victims of terrible police abuse. These young ambitious Deputy District Attorneys want to make a name for themselves with the local constabulary, by characterizing even obviously indefensible conduct by peace officers as lawful, and, therefore, by prosecuting the victims of these terrible constitutional violations.
Save rare exceptions, someone usually is in the constitutional “wrong” and someone is in the constitutional “right”, in situations involving the search and seizures of persons, things and places by peace officers. The police make mistakes all of the time. They really do. Moreover, many cops know that they can arrest anyone that they want to for “failing the attitude test”, and the worst thing that’s going to happen to them, is getting a notice in their mail box that their proposed bogus criminal prosecution of an innocent has been rejected for prosecution. That’s the real world, because “resistance offenses” are so vague and can be argued to encompass just about any situation, officer very often arrest civilians for conduct that, even on its face, is not a crime (i.e. a) Arrestee “delayed officers” by failing to open door to private residence when demanded to do so by peace officer [Camara v. Municipal Court, 387 U.S. 523 (1967); never a crime to fail to open door to private residence when demanded to do so by police officer, without a warrant; See v. City of Seattle, 387 U.S. 541 (1967); same for commercial premises]; b) civilian arrested for “obstructing / delaying” police for video recording police. But, See amendment to Cal. Penal Code § 148(a)(1)(g) [it is not crime, nor has it been a crime, in California to video record the police]; c) failure to identify one’s self to police, save being booked, is not a crime in California; In re Chase C., No. D067787 (Cal.App. 2015 ): d) no crime to stand in one’s doorway and demand that the police show you a search warrant for police entry into your private home (People v. Wetzel, 11 Cal.3d 104 (1974)); e) verbally objecting to police conduct, generally, cannot be criminalized by the state. See, City of Houston v. Hill, 482 U.S. 451 (1987) (“The freedom of individuals verbally to oppose or challenge police action without thereby risking arrest is one of the principal characteristics by which we distinguish a free nation from a police state.”)
These young ambitious Deputy District Attorneys By prosecuting those whose only transgression was to exercise a constitutional right, for the very exercise of that precious right. The kind of rights that make use American. These bogus prosecutions very often depend on how “creatively” the police and/or the prosecution can ”twist” and mischaracterize your conduct, as somehow being violative of various ”resistance offense” statutes, such as and most often falsely complained of; violation of Cal. Penal Code § 148(a)(1); “The Boot of the Police State”.
After all, if you’re the lawbreaker, then you’re the one at fault for the police beating you, falsely arresting you, attempting to frame you, or otherwise taking actions against you. If you’re guilty, then the cops are off the hook. The game then is, when the police beat and falsely arrest an innocent, what is their best avenue to ensure that they won’t get sued; at least successfully. It’s violation of Cal. Penal Code § 148(a)(1); ”The Boot of the Police State”.
SECTION 148(A)(1) IS THE CRIMINAL STATUTE USED TO SHIFT THE BLAME TO YOU TO INSULATE THEMSELVES AND THE GOVERNMENT FROM LIABILITY FOR THEIR VIOLATION OF YOUR CONSTITUTIONAL RIGHTS; THE BOOT OF THE POLICE STATE.
Ask any police officer about what Cal. Penal Code § 148(a)(1) means, and you will get a myriad of reactions that usually include a snicker of some sort. Continuing that discussion will usually eventually lead to a discussion of what the police, the lawyers and the courts call ”contempt of cop“; the arrest of innocents, most often for: a) verbal challenge of the Officer’s actions (i.e. “Officer, you have no right to search my car”; “Is it really necessary for me to prone myself on the ground while you’re pointing that gun at me, and when I have no idea what’s going on”); b) for verbally protesting the Officer’s action (i.e. “Stop beating that handcuffed man Officer”; “Please stop hitting my husband“), c) for objecting to an Officer actions (i.e. “Please leave my house Officer”; “You have no right to do that Officer”), and, especially for d) telling the police that you know your Constitutional rights; that really does it for them.
These very common resistance offense arrests quite often result in bogus criminal prosecutions of those who were guilty of nothing other than a lawful exercise of their Constitutional rights. Those bogus criminal prosecutions usually involve criminal charges for violations of Cal. Penal Code §§ 69 (preventing / dissuading public officer from performing duty of office via use or threat of force and violence) and 148(a)(1) (“resisting / delaying / obstructing a peace officer”); crimes that can be used to justify just about any misconduct by the police, to place the blame on you (i.e. the suspect stuck my fist with his chin; he delayed my investigation by asking “why” before prong himself on the ground).
The police all know that Section 148(a)(1) essentially empowers them to do just about whatever they want to do with you. They can approach you and either expressly (i.e. “freeze”, “stop”, “come over here”, “get on the ground”) or implicitly (i.e. tone of voice, nature of order / command / request, demand for identification, etc.) “seize” you; to take away your liberty to ignore the officer’s present and to go about your business; the test for whether one is “seized” within the meaning of the Fourth Amendment. This power, to “seize” a civilian on suspicion of him/her having committed a crime, on less than probable cause to arrest that civilian, was first invested in the police in 1968, a year of great American civic upheaval, in the now infamous case of Terry v. Ohio:
“Our evaluation of the proper balance that has to be struck in this type of case leads us to conclude that there must be a narrowly drawn authority to permit a reasonable search for weapons for the protection of the police officer, where he has reason to believe that he is dealing with an armed and dangerous individual, regardless of whether he has probable cause to arrest the individual for a crime. The officer need not be absolutely certain that the individual is armed; the issue is whether a reasonably prudent man, in the circumstances, would be warranted in the belief that his safety or that of others was in danger. Cf. Beck v. Ohio, 379 U.S. 89, 91 (1964); Brinegar v. United States, 338 U.S. 160, 174-176 (1949); Stacey v. Emery, 97 U.S. 642, 645 (1878). [n23] And in determining whether the officer acted reasonably in such circumstances, due weight must be given not to his inchoate and unparticularized suspicion or “hunch,” but to the specific reasonable inferences which he is entitled to draw from the facts in light of his experience. Cf. Brinegar v. United States supra.” Terry v. Ohio, 392 U.S. 1, 27 (1968)“; Warren, C.J., Opinion of the Court.
SHIFTING THE BLAME FROM THE POLICE TO YOU; THE BIRTH OF THE INVESTIGATORY DETENTION.
As they say, if you give them an inch, they’ll take a mile.That’s what happened because of, and in the wake of Terry v. Ohio. As the language chosen by Chief Justice Warren shows, the constitutional basis for a police officer stopping and frisking a civilian is that the officer reasonably believed that he was dealing with an armed and dangerous individual who was suspected of “criminality afoot” (i.e. that one just committed a crime, was engaged in committing a crime or was about to commit a crime). However, you can’t actually stop and frisk another without detaining them in some fashion.
Thus, Chief Justice Warren’s balancing of interests in Terry v. Ohio (i.e. police can detain civilian on less than probable cause if they reasonably believe suspect is armed and dangerous) gave birth to what is known in American jurisprudence as an “investigatory detention” is born; born via the “misuse” of Chief Justice Warren’s limited power to seize persons on less than probable cause; something that a Judge cannot even order, as Judge’s may only issue warrants “but upon probable cause” (U.S. Const. Amend. 4). In other words, when in 1968, in the wake of the great civil unrest that our country was enduring, Chief Justice Warren gave the police the limited power to seize another for the purpose of frisking them upon only “reasonable suspicion” of their connection to “criminality afoot”, and then only when the police had reason to believe that the person who they were dealing with were armed and dangerous. However, as they say, if you give them an inch they will take a mile; especially the police. The police will take as much of your personal liberty as the courts and the public will allow them (i.e. jury verdicts acquitted police officers or in officer’s favor in civil cases).
Seizures of persons by police officers was up to 1968 prohibited by the very original clear language of the Fourth Amendment (“. . . no warrants shall issue but upon probable cause” . . . ). Even under the language of Terry v. Ohio, if the “stop and frisk” permitted by that case is negative (i.e. no weapons found), the police should let you go. That, however, is not what happens in the real world. The police really can now seize you if they don’t like the “cut of your jib”, and any resistance, protest or failure to immediately, and without question, often results in police beatings, false arrests and malicious criminal prosecutions for “resistance offenses”.
In other words, the “inch” that was ”given” to the police by the Supreme Court was allowing a peace officer to stop and frisk a civilian for weapons, only when the officer had reason to believe (i.e. articulable facts) that the person who he was dealing with was “armed and dangerous”. The “mile” that the police have taken, is to use Terry to justify the detention of individuals on the barest of suspicion of the detainee’s connection to “criminality afoot” in almost any situation; notwithstanding the police not entertaining any belief that anyone that they are dealing with was armed or dangerous.
Not all police officers can handle that “awesome power”; the power to seize and frisk another, basically at their whim, to detain another for investigation. After all, a Judge cannot issue a warrant or order that someone be detained for questioning, even if there was probable cause to believe that they committed a crime. Moreover, Judges’ orders and warrants (i.e. search warrants, arrest warrants, etc.) must be predicated upon “probable cause“; either to believe that someone committed a crime (for an arrest warrant) or to believe that evidence of a crime will be found in or at a place or person (for a search warrant). Not so anymore with police officers for street contacts with the public, or other places where the police “lawfully are”. They can now use the “investigatory detention” to harass, torment, embarrass and oppress civilians. Any “resistance” to the abuse of that awesome power is also very often treated as criminal conduct by the victim of constitutional violations by the police.
SHIFTING THE BLAME FROM THE POLICE TO YOU; THE INVESTIGATORY DETENTION AND THE CRIMINALIZATION OF CONSTITUTIONALLY PROTECTED CHALLENGE TO POLICE ORDERS AND CONDUCT.
In the real world, as a practical matter, the cops can shake you down, pull you over, stop and frisk you, prone you out on the ground, make you sit on a street curb, frisk you, search you, and intimidate you (i.e. unjustifiably point firearms at persons), bully and otherwise abuse you, anytime that they want to do so. The “tool” or “vehicle” that “shifts the blame”; that the police in large part rely on to create the appearance that they are legally in the right, and you are legally in the wrong, is Section 148(a)1). There is a profession wide acceptance and understanding of the notion, that the police can “get away” with oppressively abusing you, by claiming (falsely or otherwise) that you failed to immediately and without question, do whatever the police tell you to do. That your failure to immediately, and without protest, do what they told you to do, is a crime. That your failure to immediately, and without protest, do what they told you to do, “justifies” the beating that they put on you to get you to comply with police orders.
The police understand that because Section 148(a)(1) is so vague, that they know that that at the end of the day, that can claim to their own employing agency that their actions were lawful and in compliance with their agencies’ policies and procedures. They also know that at the end of the day, that they can very often procure some young aggressive Deputy District Attorney, to prosecute the victim; to criminally prosecute you, the public, for violation of Section 148(a)(1) or worse (i.e. resisting with force or the threat thereof; a “wobbler”; Cal. Penal Code Section 69), to protect the officers and their employing agency from any civil liability to you. They do this by filing a bogus case of violation of Section 148(a)(1) or worse, and somehow badger or financially pressure you into usually pleading to some de minimis public offense; thereby per se precluding a false arrest suit, via the product of unjustified and simply cruel judicial activism of the right; the doctrine of Heck v. Humphrey. This coerced plea, also usually precludes you, the public, for suing the police for having beat you, falsely arrested you, tortured you, etc. They all know that barring some aberration, their abuse of you can be justified by way of Section 148(a)(1).
Police officers are technically restricted to at least having “reasonable suspicion of criminality afoot” of a civilian before they may “detain” that civilian for questioning; questioning about the “criminal enterprise” that the detainee is suspected of being involved in. Judges and “sanitized juries” are more than willing to accept any excuse that the police had for making the initial seizure of the civilian. Accordingly, from institutional experience and otherwise, the police know that they can come up with some line of B.S. that will satisfy a judge or a jury that they really did have some suspicion that they had reasonable suspicion; regardless the true facts.
Technically no matter how trivial or de minimis, in order to do restrain your freedom with, in the real world, impunity. They can bark at you and can provoke you into verbally protesting their actions, and then claim that you’re being “uncooperative” or “obstructing” or “delaying” them. They can order you to sit down on the curb or on something else; they can order you to place your hands behind your back; they can handcuff you; they can frisk you. The police used to have to have real justification for ordering persons to the ground, or handcuffing all persons whom they detain for investigation. However, because of the unintended consequences of the “Exclusionionary Rule“, coupled with the Supreme Court’s modern tendency to permit “officer safety” to replace “probable cause” or a warrant, has resulted in exactly the arbitrary institutional police abuse of innocents and others, that United States Supreme Court Associate Justice William O. Douglas warned about in his sole dissent in Terry v. Ohio, 392 U.S. 1 (1968):
“Yet if the individual is no longer to be sovereign, if the police can pick him up whenever they do not like the cut of his jib, if they can “seize” and “search” him in their discretion, we enter a new regime. The decision to enter it should be made only after a full debate by the people of this country.”
Section 148(a)(1) is used in conjunction with Terry v. Ohio, 392 U.S. 1 (1968) to shift the legal blame for whatever you’re dealing with, on you; the victim of the government. If they can convict you of violation of Section 148(a)(1), as a general proposition, you are precluded from suing the police. Since Terry v. Ohio basically allows unfettered police abuse and harassment of civilians, any failure to immediately comply with “police commands” can be twisted into probable cause to arrest you for violation of Section 148(a). This is no joke, and this happens every day. Young public prosecutors are more than willing to “get in” with the police by attempting to convict the victims of police oppression for violation of Section 148(a). This happens every day. This is normal.
As shown below, the San Bernardino County District Attorney’s Office has a division (“CAPO”) devoted to bringing bogus “resistance offense” cases like Section 148(a)(1) to protect the police from civil liability and obloquy. The term “failure to comply with police commands” is now a phrase that has taken upon a sort of legitimacy, because of the prevalence of the abuse of that term; abuse in the sense that such a thing exists at all. After all, there is no California statute that proscribes failure to obey a “lawful command” or a “lawful order” of a police officer. That’s where Section 148(a)(1) comes in. That’s the hammer of the police and the prosecutors, to shift the legal blame for whatever the police did to you, on you; the victim of the government. Moreover, the prohibited actions or omissions, to resist or obstruct or delay peace officers engaged in the lawful performance of their duties, are routinely creatively applied by peace officers and prosecutors to fit whatever particular fact situation that they either experienced or fabricated; or both. It means everything and it means nothing. A retired police officer once made the comment to this author that “You [the police] need Section 148 because some people just need to go to jail, even if they haven’t committed a crime.”
POLICE PROCUREMENT OF MALICIOUS CRIMINAL PROSECUTIONS FOR “RESISTANCE OFFENSES” TO PRECLUDE YOU FROM SUING THE POLICE FOR VIOLATION OF YOUR CONSTITUTIONAL RIGHTS.
Section 148(a)(1) is that tool that is used, and will be continued to be used, to falsely arrest and to maliciously prosecute those of us who “fail the attitude test.” As shown below, because of how vague and ambiguous Section 148(a)(1) is, in any given factual scenario, police can construct (concoct) a way to characterize their victim’s conduct in a manner that “justified” the initial seizure of the civilian, and the use of whatever force or violence that was used by the officers on the civilian. There is really almost nothing that some “police procedures expert” can’t justify, and the “sanitized” juries often eat it up. The jurors are, for the most part “sanitized”; they are generally are persons who have no concept of the reality of modern police behavior and practices. They perceive the actions by the police that’s consistent with their belief systems; their view of the world. This is the case for the following reason.
During jury selection in either a criminal case for violation of Section 148(a)(1), or for a civil case involving unlawful arrests and/or the use of unreasonable force, jurors are routinely questioned (“voir dire“) about whether they’ve seen or experienced what they considered abusive police conduct. If they have, they’re usually happy to tell the court and their fellow jurors about the terrible experience that they either had or witnessed. When that happens, the court will routinely inquire of the juror if they can be completely fair and impartial in the case in light of their experience with police misconduct. Usually the juror was so emotionally shaken by either being subjected to police abuse or having witnessed it, that they tell the court that it would be difficult to be completely fair and impartial. The court will then dismiss that juror for cause.
If for some reason the potential juror indicates that they feel that they can be completely impartial, you can bet your bottom dollar that the side representing the police (i.e the District Attorney in criminal case and a civil defense lawyer in a civil case against the police) will use one of their peremptory jury strikes to make sure that the person who either experienced or witnessed police outrages is not going to sit on their jury. That leaves a jury of people who have never had or seen police outrages; the “sanitized jury”. The various stories that police agencies really do concoct about an incident in which they violated the constitutional and moral rights of civilians, are endless. The following shows how the police and public prosecutors use and abuse Section 148(a)(1): to shift the blame; to establish that the victim of police abuse be deemed the cause of whatever harm became them, by criminally prosecuting the victim of abuse by police officers. If the government prosecutes you for a crime, as a practical matter, you are precluded from suing the police until the state court criminal case is resolved. See, Cal. Gov’t Code § 945.3 (can’t sue the police officers or their employing agencies in California state court while criminal action pending over same incident) and Younger v. Harris, 401 U.S. 27 (1971) (federal court should generally refuse to afford federal court jurisdiction while state court criminal case is pending and will resolves some substantial issue of federal law that would have been raised in federal court proceeding; the “Younger Abstention Doctrine“).
Accordingly, when the police falsely arrest you and use unreasonable force upon you, they simply procure your malicious criminal prosecution for violation of Section 148(a)(1), and you’re the one in trouble; financially, emotionally and in many other ways. Unlike the liberal discovery rules in civil cases, in criminal cases, you can’t take depositions. You can’t serve a subpoena on the police agency that employed the officer / deputy sheriff, because in California criminal actions; you can only make an informal demand upon the District Attorney’s Office, and a formal (and usually ineffectual) motion to compel discovery in those state court criminal cases in California). However, you’re precluded from prosecuting that civil case against the police because of the pendency of the bogus criminal case against you. Moreover, you usually get “jacked” by the state court criminal case judge on jury instructions. You ask for the various “Special Jury Instructions”, but in the real world, with a real Superior Court Judge, you get few, and often, none of the Special Jury Instructions” that you need to have the jury instructed on, to show why your particular acts or omissions, didn’t constitute a crime; usually as conduct protected by state and federal constitutions. When the juries have to guess at whether your conduct “resisted” or “obstructed” or “delayed” a peace officer engaged in the “lawful performance” of his/her duties, it’s important for juries deciding whether you committed a crime, to have sufficient guidance and whether the type of conduct that you stand accused of, is protected by state or local constitutions, or state or local statutes. That only makes sense, since it’s a basic tenet of Section 148(a)(1) case law that one cannot be guilty of “resisting” or “obstructing” or “delaying” a peace officer who is, at the timeccomplained of, acting unlawfully. See People v. Curtis, 70 Cal.2d 347 (1969)(as peace officers have no duty to act unlawfully, they are not engaged in the “lawful performance of their duties”; an element of most “resistance offenses”, including Section 148(a)(1). See, “CAL CRIM (California Judicial Council approved standard California Criminal Case Juries Instructions) CAL CRIM 2656 – 2016 ed. and CAL CRIM 2670 – 2016 ed.
CRIMINAL PROSECUTIONS FOR VIOLATION OF CALIFORNIA PENAL CODE SECTIONS 148(A)(1) AND 69 ARE ALMOST ALWAYS PRIMARILY MOTIVATED TO MINIMIZE OR TO SIMPLY PRECLUDE CIVIL LIABILITY FOR THE CONSTABLE’S CONSTITUTIONAL TRANSGRESSIONS. IT IS REALLY THAT SIMPLE.
If you plead guilty to anything, you’re precluded from suing for your false arrest under both federal and state law; notwithstanding the fact that the propriety of an arrest is determined at the time of the arrest. See, Heck v. Humphrey, 512 U.S. 477 (1994) (guilty plea or other conviction precludes lawsuit for false arrest, or for any constutional violation that could have been raised defensively in some way in the criminal action); See also, Yount v. City of Sacramento, 43 Cal.4th 885 (2008) (California Supreme Court adopts Heck for admittedly policy reasons [i.e. we don’t want you to be obtain redress for your unlawful arrest, if you were convicted; notwithstanding that propriety of arrest determined at time of arrest] precluding righteous state law claims, adopting Heck v. Humphrey for California state law claims).
You’re also precluded from suing for an unconstitutional search that resulted in your arrest. The Conservative Wing of the Supreme Court has taken it upon itself to create (out of thin air) a public policy rule, essentially overruling Congress (i.e. 42 U.S.C. §. 1983; The Third Enforcement Act of 1871), and immunizing the police for unconstitutional arrests or searches and seizures in the name of “public policy”; the exact thing that the Conservative Wing of the Supreme Court is supposedly opposed to. Therefore, the police may not have had the right to have either busted into your house without a warrant, consent or an emergency, or to have arrested you, such as when they lack either probable cause to believe that you committed a crime, or a warrant.
Nonetheless, because of police, prosecutors and judges (i.e. re jury instructions) knowingly take advantage of those vague terms of Section 148(a)(1) to place the blame on you; criminally and civilly. Remember, the police do this every day. They know what to say in their reports that will justify anything; even deadly force. They can take any given fact situation, throw a few key words into the equation, and literally justify anything that the police do pursuant to a duty related activity. It’s a gross perversion of the Role of a Public Prosecutor, and, frankly, usually that’s coupled with a true actual lack of understanding of the constitutional limitations of these criminal resistance statutes by state court trial court judges. Judges are resistant on giving Specially Requested Jury Instructions at state court criminal trials, and they’d rather just give the jury the CalCrim Standard Form Jury Instructions on resistance offenses (i.e. CalCrimm 2656 and 2670). Those CalCrim Jury Instruction are usually inadequate for the jury to understand that certain acts or failures to act by the accused in your case, were constitutionally protected. That’s why, Cal. Penal Code § 148(a)(1) is truly The Boot Of The Police State.
THE GENESIS OF THE POLICE STATE IN AMERICAN LIFE; TERRY V. OHIO PERMITS WARRANTLESS SEARCHES AND SEIZURES OF CIVILIANS ON LESS THAN PROBABLE CAUSE TO BELIEVE THAT THEY COMMITTED A CRIME.
In 1997, the British honored their long term lease agreement with China, and surrendered Hong Kong back to the Chinese. When Chinese Communist Party officials described the transition from a British Colony to Chinese Communist rule, they announced that they had every intention of respecting the liberties and rights that the residents of Hong Kong had enjoyed under British rule; but they just couldn’t criticize the government. The Chinese simply didn’t believe that a “free society” requires that citizens be free to criticize the government; something that as Americans we all accept as a given. In modern society, you may criticize the President, the Governor, the Mayor, a legislator or other public officials, but chances are that when you do so, you’re actually not criticizing the official face-to-face. You may be complaining to your barber or your hairdresser about The President, but The President is not standing in your actual presence. There is a part of the government, however, where its critics come into direct contact with its officials; the police. Police Officers and Deputy Sheriffs are government officials with great power; often greater than a judge, a Governor or even The President. Many of us criticize the police directly, for reasons and circumstances that we could have not imagined, or for that matter, even believed it we had not experienced it ourselves. We believed that because we’re law abiding (i.e. mostly white) citizen types, who don’t really do anything unlawful, that if the police do something bad to a civilian, that it’s not going to be us that gets abused. Moreover, that belief system, confirmed and reinforced by our everyday experiences, causes us to believe that people who the police do arrest and use force on, must have deserved it. They must have done something unlawful, because the police don’t do bad things to people who don’t deserve it. Moreover, most of us don’t care very much what the police do to others, because we just could not imagine that the police will do anything bad to us. We may get upset about a “bad apple” officer who gets caught on a video recording, torturing a handcuffed arrestee, but we view those events as aberrations; not the norm.
The difference between a Communist state, and other police states, and a free society, is that right; to criticize the government; including and especially, the right to criticize, and to verbally protest and challenge police action. Section 148(a)(1) is California’s great threat to that fundamental right to protest. As stated by Justice Brennan in Houston v. Hill, 482 U.S. 451, 464 (1987):
“The freedom of individuals verbally to oppose or challenge police action without thereby risking arrest is one of the principal characteristics by which we distinguish a free nation from a police state.” Hill, 482 U.S. 451, 464 (1987); Brennan, J.
These prophetic words by Justice Brennan, answered the question of whether a Houston, Texas, Municipal Ordinance, that made it unlawful to interrupt a police officer in the performance of his/her duties, was unconstitutionally over-broad under the First Amendment. The Houston, Texas, Ordinance 34-11(a) (1984) provided:
“Houston Municipal Ordinance Sec. 34-11. Assaulting or interfering with policemen.
“(a) It shall be unlawful for any person to assault, strike or in any manner oppose, molest, abuse or interrupt any policeman in the execution of his duty, or any person summoned to aid in making an arrest.”
The Supreme Court struck down the Houston ordinance as violative of the First Amendments freedom of speech and right to petition clauses:
“Houston’s ordinance criminalizes a substantial amount of constitutionally protected speech, and accords the police unconstitutional discretion in enforcement. The ordinance’s plain language is admittedly violated scores of times daily, App. 77, yet only some individuals – those chosen by the police [482 U.S. 451, 467] in their unguided discretion – are arrested. Far from providing the “breathing space” that “First Amendment freedoms need . . . to survive,” NAACP v. Button, 371 U.S. 415, 433 (1963), the ordinance is susceptible of regular application to protected expression. We conclude that the ordinance is substantially overbroad, and that the Court of Appeals did not err in holding it facially invalid.”
The California analog of that Houston Ordinance is California Penal Code Section 148(a)(1); the boot of the police state. That statute, is the most abused statute in California by peace officers, to arrest those who “fail the attitude test”, or somehow don’t jump fast enough when the cops yell jump, or have the audacity to question the officer’s assertion of authority. It’s the crime that the cops usually arrests innocents for; usually for nothing more than a bruised ego / “Contempt of Cop” violation.
CAL. PENAL CODE SECTION 148(a)(1); THE BOOT OF THE POLICE STATE.
Prior to your encounter with the police that drew you to this article, you were somewhat cognizant that the cops may be jacking-up Mexicans and Blacks, but you felt deep down inside, that they got some sort of curbside justice, so who’s cares? You saw the police messing with others, but not with you; not with “us”. You saw a bunch of youths handcuffed with their car being searched; searches which have generally recently been deemed to be constitutional violations. See, Arizona v. Gant, 556 U.S. 332 (2009) (a Supreme Court Opinion that reversed 28 years of warrantless searches of automobiles, first permitted by the Supreme Court in New York v. Belton, 453 U.S. 454 (1981), giving the cops that power resulted in too many abuses by peace officers, and was otherwise simply contrary to the spirit of the Fourth Amendment.) What “Whitey” and the rest of us/you don’t realize, is that over the years since 1968, bad case after bad case, cases that are usually decided in the context of criminal case evidence suppression motions, we don’t have many of our Fourth Amendment search and seizure rights left. It’s not the purpose of this article to detail that slide off of the proverbial cliff of fourth amendment jurisprudence. It is sufficient to say that in 1968, the Supreme Court held for the first time, that the police can seize a man on suspicion of criminal conduct of a person on less than probable cause. Justice William O. Douglas warned us all what would happen if the court simply abandoned the original and express “probable cause” standard that our nation’s founders settled on as the standard for government seizures of individuals, and allowed seizures of persons on less than probable cause. He warned that the police would have unfettered discretion to detain persons at their whim; something that the Fourth Amendment was enacted to protect us against. “
“Until the Fourth Amendment, which is closely allied with the Fifth, is rewritten, the person and the effects of the individual are beyond the reach of all government agencies until there are reasonable grounds to believe (probable cause) that a criminal venture has been launched or is about to be launched.
To give the police greater power than a magistrate is to take a long step down the totalitarian path. Perhaps such a step is desirable to cope with modern forms of lawlessness. But if it is taken, it should be the deliberate choice of the people through a constitutional amendment.
There have been powerful hydraulic pressures throughout our history that bear heavily on the Court to water down constitutional guarantees and give the police the upper hand. That hydraulic pressure has probably never been greater than it is today.
Yet if the individual is no longer to be sovereign, if the police can pick him up whenever they do not like the cut of his jib, if they can “seize” and “search” him in their discretion, we enter a new regime. The decision to enter it should be made only after a full debate by the people of this country”.(Terry v. Ohio, 392 U.S. 1 (1968); Douglas, J., Dissenting).
That all being the case, by the time that the criminal courts were done dealing with attempts by criminal defendants to escape liability by excluding incriminating evidence (i.e. bringing motions to suppress evidence obtained in violation of Constitutional rights), we didn’t have many rights left. The Judges and Justices know that if they find that certain undisputed police conduct to have been done in violation of the federal constitutional rights, that for the most part, they are obligated to exclude the unconstitutionally obtained evidence at the trial of the defendant, from the prosecution’s case in chief. Accordingly, Judges and Justices often knowingly twist logic on its head, or otherwise mischaracterize the breadth and depth of our Constitutional protections, to avoid the criminal defendant’s motion to exclude that evidence at trial. That may be nice to avoid ultimate injustice in a case with a real victim, such as murder, but the price that we all pay for ignoring the Constitutional protections in the murder case, are our very own civil liberties. We allow the Judges and Justices to chop down our Constitutional rights, to get the bad guy and to not let him escape on some liberal technicality. See, How The Exclusionary Rule Backfired And Crushed Americans’ Constitutional Rights.
The courts don’t mind the police “saturating” black or Mexican neighborhoods with mobs of overzealous cops, who travel the streets in a targeted neighborhood and literally terrorize anyone standing outside when the Sun goes down. These are called “Saturation Operations”, that use the rhetoric phrase of “Zero Tolerance” for any public offense, no matter how de minimis (i.e. sitting on your front porch and drinking a beer; not having a City license for your bicycle, etc.) This is no joke, and such conduct would not be tolerated in a white affluent neighborhoods. The Judges and Justices know that if they find that certain undisputed police conduct to have been done in violation of the federal constitutional rights, that for the most part, they are obligated to exclude the unconstitutionally obtained evidence at the trial of the defendant, from the prosecution’s case in chief. Because the police are now as at least a practical matter, allowed to treat everyone that they meet disrespectfully, law abiding innocent types are now finding themselves in the direct presence of government officials who they directly criticize; the Executive branch of government; the police. It is those persons who are directly criticized to their face, and, who use force and their awesome power of arrest on civilians. Many of these arrests, especially for crimes such as Cal. Penal Code § 148(a)(1); resisting / obstructing / delaying a peace officer; a crime that means whatever the police, the public prosecutor, a Superior Court Judge and a local jury want it to mean. The actually resisting arrest statute in California provides:
“Every person who willfully resists, delays, or obstructs any public officer, peace officer, or an emergency medical technician, as defined in Division 2.5 (commencing with Section 1797) of the Health and Safety Code, in the discharge or attempt to discharge any duty of his or her office or employment, when no other punishment is prescribed, shall be punished by a fine not exceeding one thousand dollars ($1,000), or by imprisonment in a county jail not to exceed one year, or by both that fine and imprisonment.”
As shown below the ambiguity of California’s “Contempt of Cop” statute, Cal. Penal Code § 148(a)(1), “allows” the police to claim to that you committed a crime for behavior that is constitutionally protected, such as verbally protesting police action (i.e. “officer, stop hitting that handcuffed man in his head”), questioning police assertions of authority (i.e. “Do you have a search warrant to have entered and searched my house“) and failing to immediately comply with orders from a police officer (i.e. “Officer; why are you pointing that gun a my face and want me to lie down on the dirty ground”.) It’s also the general default charge that the police use when you didn’t commit a crime, because the boys and girls back at the at the station in the report writing room, will come-up with some sort fabrication of the events, based on the “deniable” and the “undeniable”, to justify splitting you head open for not getting on the ground fast enough.
The police admit but spin what they can’t deny (i.e. conclusive video or audio recording), and deny anything prejudicial, or any material fact that is viewed as potentially helpful to the victim of police abuse being able to recover compensation for outrages perpetrated upon them. A recent example of the ignorance about and misuse of Cal. Penal Code § 148(a)(1) is the arrest of actress Daniele Watts in Los Angeles by the LAPD. The LAPD received a call that a man and a woman were getting it on in a car in Los Angeles. When they arrived at the scene they saw Daniel Watts and her boyfriend, but they weren’t doing anything. The LAPD Officer started his investigation for a possible case of lewd conduct in public (Cal. Penal Code § 647(a)) and asked Ms. Watts for her name. She refused to tell the officer her name, claiming that she had a right not to do so. Notwithstanding the fact that Ms. Watt’s claim was correct, the LAPD Officer told her that she had no such right and that she was obligated to divulge her identity to him (which is not the law.) Because of Ms. Watts’ refusal to identify herself, the LAPD Officer handcuffed her and placed her in the back seat of his patrol car (listen to recording here.) Throughout the contact, one can hear the officer repeat that he had “probable cause” (of some crime; which he didn’t), and that when the police are investigating a crime that a civilian has a duty to cooperate with the police including having to tell the police who they are, under the threat of arrest for non-compliance for Cal. Penal Code § 148(a)(1). The officer was wrong on both counts. First, a person has no obligation to cooperate with a police investigation; especially of themselves. See, People v. Shelton, 60 Cal.2d 740 (1964) (“A suspect has no duty to cooperate with officers in securing evidence against him . . . “.)
Second, since 1980 the California Courts have held that it is not a crime for a person to refuse to identify themselves to the police; even if they’re being lawful detained (save when they’re at the jail and are being booked) See, In re Chase C., Cal.App.4 (12/18/15); In re Gregory S.,112 Cal. App. 3d 764, 779 (1980); People v. Quiroga, 16 Cal.App.4th 961 (1993); People v. Christopher, 137 Cal.App.4th 418 (2006); United States v. Christian, 356 F.3d 1103 (9th Cir. 2004); Martinelli v. City of Beaumont, 820 F.2d 1491 (9th Cir. 1987). So, while LAPD Chief Charlie Beck was on radio and television defending his officer’s arrest of Ms. Watts for refusing to divulge her name (See KCAL 9 TV Broadcast), he was encouraging other LAPD officers to commit crimes against civilians like the LAPD officer did against Ms. Watts when he cuffed her and placed her in his car for violation of Cal. Penal Code § 148(a)(1) for failing to identify herself. That’s a federal crime by the LAPD Officer; a violation of federal constitutional rights under color of authority; 18 U.S.C. § 242; a felony. Fear not, however, Chief Beck; the Los Angeles District Attorney’s Office has now come to your rescue. The California District Attorney’s Association and the California Department of Justice has even published guidance for California Peace Officers on this issue, and that guidance is that a failure to identify oneself to a peace officer is not a crime in California:
“The U.S. Supreme Court has drawn a distinction between a detainee’s duty to identify himself and his duty to answer non-identification questions during a lawful detention. In Berkemer (1984) 468 U.S. 420, 439, the court stated that a detainee is not obligated to answer any questions you put to him during a lawful detention. However, in Hiibel, the Supreme Court clarified that it was not referring in Berkemer to questions regarding identity. The Court upheld as constitutional a Nevada “stop and identify” statute and found that a detainee’s failure to identify himself could be the basis for a lawful arrest under a companion statute almost identical to Penal Code section 148. (Hiibel (2004) 124 S.Ct. 2451.)
Unlike Nevada and other states, California does not have a statute mandating that a detainee identify himself, and that obligation cannot be read into Penal Code section 148. Although you may take whatever steps are reasonably necessary under the circumstances to ascertain the identity of a person you have lawfully detained, Hiibel does not provide a means for arresting someone for failing or refusing to identify himself. The Ninth Circuit has ruled that a suspect’s failure to identify himself cannot, on its own, justify an arrest: “the use of Section 148 to arrest a person for refusing to identify herself during a lawful Terry stop violates the Fourth Amendment’s proscription against unreasonable searches and seizures.” (Martinelli (9th Cir.1987) 820 F.2d 1491, 1494; Christian (9th Cir.2004) 356 F.3d 1103, 1106.)” See, California Department of Justice and California District Attorneys Association, 2012 Field Guide to the California Peace Officers Legal Sourcebook § 2.13-2.14a (Rev. Jan. 2012).
Notwithstanding this clear pronouncement of the reach and ambit of Section 148(a)(1), specifically, that it does not criminalize a person’s failure to identify himself to a peace officer, even if the officer is lawfully detaining him/her, apparently out of pure political defiance, the Los Angeles Police Department actually directs its police officer to ignore the California Department of Justice and the California District Attorney’s Association on that issue. The LAPD publishes a bulletin to it’s officer, telling that that it’s a crime for a lawfully detained civilian to fail to identify himself to a peace officer.
Moreover, to make matters worse, the Los Angeles County District Attorney’s Office eventually filed criminal charges against Miss Watts for lewd conduct in public, but not for the crime that she was initially seized for; violation of Section 148(a)(1.) She ultimately pleaded guilty to disturbing the peace; a de minimis misdemeanor, and received a fine; precluding her for suing the officer for arresting her for a crime that she was innocent of. This is pure politics, of the worst sort.
The District Attorney’s Office knows that Miss Watts didn’t violate Section 148(a)(1); (the crime that Miss Watts was handcuffed and placed in the police car for, and they knew that the ACLU had been discussing Miss Watts’ options with her. Nonetheless, the DA’s office came to the rescue of the LAPD officers, by obtaining a conviction of her (guilty plea bargain) for disturbing the peace; a de minimis misdemeanor. She was never charged with violation of Section 148(a)(1); the charge that she was arrest for violating. However, because the Supreme Court has decreed that as a matter of “public policy”, that if you’re convicted of anything, anything, that you can’t sue the arresting officer. So, if the officer arrested you for murder, and you were required to post $1,000,000.00 bail, if a reasonably well trained officer would have had probable cause to arrest you for anything that the laws proscribes (i.e. seal belt violation), then you can’t sue the officer for false arrest; even if he/she didn’t have a clue that your conduct constituted a violation of some other criminal / vehicle statute. See, When v. United States, 517 U.S. 806 (1996) (standard for propriety of arrest by peace officer is the ”reasonably well trained officer in the abstract”; officer’s subject motive for search or seizure irrelevant to determination of fourth amendment violation.)
Under When v. United States and its progeny, it doesn’t matter whether the particular searching or arresting officer believed that you committed a particular crime or not; rather, the fourth amendment inquiry is whether a reasonably well trained peace officer would have know that you conduct constitute a violation of some, any, public offense. Atwater v. City of Lago Vista, 532 U.S. 318 (2001.) Any conviction for anything, even disturbing the peace, bars a lawsuit by Ms. Watts for suing for her false arrest. See, Heck v. Humphrey, 512 U.S. 477 (1994) (conviction for any crime bars subsequent lawsuit for false arrest. This is a pure political policy decision by the Supreme Court; so much for Mr. Justice Scalia’s “we don’t make policy decisions that are better left to the legislative branch”, public comments and positions in his Supreme Court Opinions.
What Section 148(a)(1) does, is “legitimizes” illegitimate police misconduct. It is the tool primarily used by police officers who falsely arrest and/or use unreasonable force on civilians, to shift the blame; to make things your fault; not theirs. Because there are so many young and ambitious Deputy District Attorneys out there who want to stand-out and make political ties with the police community, the police know that very often they can get some young and ambitious Deputy District Attorney to file a criminal action against their victims; shifting the blame for the false arrest and use of unreasonable force. It turns the United States of America into one of those countries, that, as a practical matter, you can end up in a body cast facing battery on a peace officer charge and resisting arrest charge, for merely criticizing the police. That’s why it’s the boot of the police state. It’s the blame changer and the game changer for a lot of people; especially people who are either forced to plead themselves out of suing the officer who attacked and frame them, or spend substantial jail time awaiting charges that they are completely innocent of.
THE CIVIL RIGHTS AND ANTI-WAR MOVEMENTS OF THE 1960’S AND THE RISE OF THE POLICE STATE:
The movement against the involvement of the United States in the Vietnam War began in the U.S. with demonstrations in 1964 and grew in strength in later years. The U.S. became polarized between those who advocated continued involvement in Vietnam and those who wanted peace. Many in the peace movement were students, mothers, or anti-establishment hippies. Opposition grew with participation by the African-American civil rights, women’s liberation, and Chicano movements., and sectors of organized labor. Additional involvement came from many other groups, including educators, clergy, academics, journalists, lawyers, physicians (such as Benjamin Spock), and military veterans. Opposition consisted mainly of peaceful, non-violent events; few events were deliberately provocative and violent. In a some cases police used violent tactics against demonstrators. By 1970 a steadily increasing majority of Americans considered US military involvement in Vietnam a mistake.
For most of the 1960′s leading-up to that year, America was in a state of upheaval. The American Civil Rights Movement, was the black man’s fight for legal racial equality. Between 1955 and 1968, acts of nonviolent protest and civil disobedience produced crisis situations between activists and government authorities. Federal, state, and local governments, businesses, and communities often had to respond immediately to these situations that highlighted the inequities faced by Black Americans of African descent. Forms of protest and/or civil disobedience included boycotts such as the successful Montgomery Bus Boycott (1955–56) in Alabama; “sit-ins” such as the influential Greensboro sit-ins (1960) in North Carolina; marches, such as the Selma to Montgomery marches (1965) in Alabama; and a wide range of other nonviolent activities. The legal culmination of the American Civil Rights Movement, was the passage of several federal statutes, such as the Civil Rights Act of 1964,that banned discrimination based on “race, color, religion, or national origin” in employment practices and public accommodations; the Voting Rights Act of 1965, that restored and protected voting rights; the Immigration and Nationality Services Act of 1965, that dramatically opened entry to the U.S. to immigrants other than traditional European groups; and the Fair Housing Act of 1968, that banned discrimination in the sale or rental of housing. African Americans re-entered politics in the South, and across the country young people were inspired to take action. However, although MLK preached non-violence, there was plenty of violence to go around. A wave of inner city riots in black communities from 1964 through 1970 undercut support from the white community. The emergence of the Black Power Movement, which lasted from about 1966 to 1975, challenged the established black leadership for its cooperative attitude and its nonviolence, and instead demanded political and economic self-sufficiency. These American race riots included:
- 1962 – Ole Miss riot 1962, September 1962, University of Mississippi
- 1963 – Cambridge, MD riot 1963, June 1963
- 1964 – Harlem (New York, NY) race riot, July 1964
- 1964 – Rochester, NY 1964 race riot, July 1964
- 1964 – Jersey City, NJ race riot, August 1964
- 1964 – Elizabeth, NJ 1964 race riot, August 1964
- 1964 – Dixmoor 1964 race riot (Chicago, IL) August 1964
- 1964 – Philadelphia, PA 1964 race riot August 1964
- 1965 – Watts Riot (Los Angeles, CA) August 1965
- 1966 – Division Street Riots (Chicago, IL), June 1966
- 1966 – Hough Riots, July 1966 (Cleveland, OH)
- 1966 – Compton’s Cafeteria Riot (San Francisco, CA), August 1966
- 1966 – Benton Harbor, MI Riot, August–September 1966
- 1966 – Sunset Strip curfew riots (Los Angeles, CA) November 1966
- 1967 – Tampa, FL Riots of 1967, June 1967
- 1967 – Buffalo, NY riot of 1967, June 1967
- 1967 – 1967 Newark, NJ riots, July 1967
- 1967 – 1967 Plainfield, NJ riots, July 1967
- 1967 – 12th Street Riot, (Detroit, MI 1967)
- 1967 – Cairo riot, (Cairo, IL) July 1967
- 1967 – Winston-Salem 1967 race riot, November 1967
- 1968 – 1968 Washington, D.C. riots, April 1968
- 1968 – Baltimore, MD riot of 1968, April 1968
- 1968 – Chicago riot of 1968, April 1968
- 1968 – Kansas City, MO riot of 1968, April 1968
- 1968 – Louisville, KY riots of 1968, May 1968
- 1968 – Glenville Shootout, (Cleveland, OH 1968)
- 1968 – Wooster Ave. Riot of July 1968 (Akron, OH)
- 1968 – 1968 Democratic National Convention riot, August 1968, (Chicago, Illinois, United States)
RACE RIOTS IN AMERICAN CITIES GENERATE POPULAR SUPPORT FOR ABANDONMENT OF THE “PROBABLE CAUSE” STANDARD FOR THE POLICE SEIZURES OF CIVILIANS.
1968 was a crazy year. For most of the 1960′s leading-up to that year, America was in a state of upheaval. Martin Luther King, Jr., was murdered in Memphis, Tennessee, and Bobby Kennedy was murdered in Los Angeles. There were riots at the Democratic Convention in the summer of 1968, and there were National Guards troops in cities throughout the United States, under Marshall law, for the nationwide race riots that were going on.
Most of white America was shifting their worldview, to support the police, who they perceive as being the barrier between nationwide race riots, and them. This turn to ”The Right”, resulted in the Election of Richard M. Nixon in 1968, and the beginning of our deviance from almost 200 years of our adherence to the notion and principle, that the police cannot seize a civilian, when they possess neither an arrest warrant, nor “probable cause” to believe that the person to be seized has committed a crime. In the craziness of the race riots in America, from 1962 to 1968, that the Supreme Court was more inclined, to excise from Fourth Amendment that chief Constitutional barrier between a free society, and arbitrary seizures of civilians by the government. In 1968, the Supreme Court gave the police the right to seize a person, on less than probable cause to believe that they committed a crime; something that a Judge cannot authorize be done to a person (a Judge can’t issue a warrant to detain another for investigation based upon “reasonable suspicion”; only an arrest warrant based on “probable cause.”) See, Terry v. Ohio, 392 U.S. 1 (1968.) The sole dissenter in Terry, was Justice William O. Douglas, who warned us that this deviation from the “probable cause” standard for seizing civilians would result in what some of us know as the modern police state.
CAL. PENAL CODE SECTION 148(A)(1) IS SO VAGUE THE POLICE OFFICERS OFTEN TWIST ITS MEANING TO MAKE IT FIT ALMOST ANY INTERACTION BETWEEN A POLICE OFFICER AND A CIVILIAN.
Ever since the Supreme Court abandoned the Fourth Amendment’s explicit “probable cause” standard for police seizures of persons in Terry v. Ohio, Mr. Justice Douglas’ warning has come to fruition. As Mr. Justice Douglas warned, now “the police can pick him up whenever they do not like the cut of his jib, if they can “seize” and “search” him in their discretion”.They can do this because Terry v. Ohio abandoned almost 200 years of Fourth Amendment jurisprudence, and allowed seizures of persons on a lesser degree of suspicion than probable cause to arrest; these days on really nothing at all. In fact, things have gotten so bad, that warrantless seizures of civilians are now permitted by the Supreme Court when the seized person isn’t suspected of any crime at all, and the only “justification” for the stopping, seizing, searching, handcuffing and proning of a civilian, is the officer’s claim that such seizure / restraint of the civilian made the officer feel safer. These days, a claim by the police that they seized you, or handcuffed you, or put you in the back seat of a police car, or ordered you out of your home (even without a warrant), or ordered you to prone yourself on a mud-puddle, can, at least in the real world of real judges and real defendants, be justified by a claim of “Officer Safety”, no matter how absurd the claim.
The tool of choice for corruptly and often efficiently enforcing police “street” misconduct, is the police arresting their victims for violation of Cal. Penal Code § 148(a)(1); resisting or delaying or obstructing a peace officer, engaged in the performance of his / her duties. Cal. Penal Code § 148(a)(1) provides:
“148. (a) (1) Every person who willfully resists, delays, or obstructs any public officer, peace officer, or an emergency medical technician, as defined in Division 2.5 (commencing with Section 1797) of the Health and Safety Code, in the discharge or attempt to discharge any duty of his or her office or employment, when no other punishment is prescribed, shall be punished by a fine not exceeding one thousand dollars ($1,000), or by imprisonment in a county jail not to exceed one year, or by both that fine and imprisonment.”
That Penal Code misdemeanor statute can be perverted and twisted in a manner, that not only can be used to internally justify (i.e. Internal Affairs complaints) police abuse, like false arrests and unreasonable force, but is used daily by California peace officers to maliciously prosecute and wrongfully convict innocents; many of whom are commonly prosecuted for actions such as: 1) asking officers for a warrant when the officers are demanding entry into a residence; 2) asking officers why they are being ordered to get on the ground, to have a seat, to put their hands behind their back, to exit there home or their vehicle, 3) protesting the actions of officers against others (i.e. verbally screaming at officers who are obviously beating-up another, or a loved one); 4) not identifying themselves immediately upon demand; 5) not opening the door to their residences; 6) failing to stop video recording officers; 7) telling a police officer that you know your rights; 8) refusing to consent to a warrantless search; 8) telling a police officer that he’s violating your rights; 9) protesting the officer’s treatment of you; not walking-over to an officer fast enough; 10) telling the police that they can’t do something (like searching you or your car or your house); and 11) the catch-all default use for Section 148(a)(1): failing to jump high enough, or fast enough for the officer, for what he ordered you to do. None of of these actions are a violation of Section 148(a)(1.) Nonetheless, hundreds of people in California are either convicted by a jury, or plead guilty to such conduct. Why? Why would you plead guilty to something that you either didn’t do, or, if you did do it, wasn’t a crime? It’s not all that simple.
Ask any California peace officer what crime is the most abused in the Penal Code, and they will not hesitate to tell you; violation of California Penal Code Section 148(a)(1); resisting / obstructing / delaying a peace officer, engaged in the [lawful] performance of his/her duties. In a 2012 police brutality case in Indio-Riverside County Superior Court case, San Bernardino County Undersheriff, Bob Fonzi, testified to an Indio, California jury, that the phrase “contempt of cop” means an ego bruising violation; not a crime. That is, that the civilian in some way bruised the ego of the peace officer (i.e. telling the cop that you know your rights, or that he did something unreasonable, or not immediately cowering in fear and jumping fast enough in response to police barking orders at you; lawful or not) and the cop arrests the “contemptuous” party, who hasn’t committed any crime. Cal. Penal Code Section 148(a)(1) is that crime. Section 148(a)(1) means everything; it means nothing; it means anything that a jury, can, and will, arbitrarily and capriciously convict you, of not bowing to the officers fast enough, and without protest. They don’t think that any of this will ever happen to them because they believe that if you don’t do anything wrong, then the cops won’t bother you. That is an inaccurate view of what is presently the case in the United States. What is the case, is that because of the ambiguity of Section 148(a)(1), the police can do to you, whatever they want to, and any challenge to their assertion of authority, can, in a very real and practical sense, be successfully criminalized.
CAL. PENAL CODE SECTION 148(A)(1) IS TOO VAGUE TO PASS CONSTITUTIONAL MUSTER, YET IT IS STILL USED EVERYDAY TO PROTECT THE POLICE.
“To satisfy due process, a penal statute [must] define the criminal offense  with sufficient definiteness that ordinary people can understand what conduct is prohibited and  in a manner that does not encourage arbitrary and discriminatory enforcement. Kolender v. Lawson, 461 U. S. 352, 357. The void-for-vagueness doctrine embraces these requirements.” See, United States v. Skiling, ___ U.S. ____ (2010) (“the intangible right of honest services” language of 18 U.S.C. § 1346 is void for vagueness, and can be interpreted as only proscribing bribes and kickbacks; not manipulation of stock prices.)
“Vague laws offend several important values. First, because we assume that man is free to steer between lawful and unlawful conduct, we insist that laws give the person of ordinary intelligence a reasonable opportunity to know what is prohibited, so that he may act accordingly. Vague laws may trap the innocent by not providing fair warning. If arbitrary and discriminatory “enforcement” is to be prevented, laws must provide explicit standards for those who apply them. A vague law impermissibly delegates basic policy matters to policemen, judges, and juries for resolution on an ad hoc and subjective basis, with the attendant dangers of arbitrary and discriminatory application….” (Grayned v. City of Rockford, 408 U.S. 104, 108-109, 33 L.Ed.2d 222, 227-228, 92 S.Ct. 2294 (1972) , fns. omitted.)” In Re Andre P. , 226 Cal.App.3d 1177 (1991.)
On a basic level, an evaluation that a statute is vague concludes “men of common intelligence must necessarily guess at its meaning….” (Connally v. General Const. Co., 269 U.S. 385, 391 (1926).)
“148. (a) (1) Every person who willfully resists, delays, or obstructs any public officer, peace officer, or an emergency medical technician, as defined in Division 2.5 (commencing with Section 1797) of the Health and Safety Code, in the discharge or attempt to discharge any duty of his or her office or employment, when no other punishment is prescribed, shall be punished by a fine not exceeding one thousand dollars ($1,000), or by imprisonment in a county jail not to exceed one year, or by both that fine and imprisonment.”
Now, in light of those words alone, see what you think about whether you may or may not, have committed a crime.
THE HYPOTHETICAL EVENT FROM YOUR PERSPECTIVE.
Imagine that you work in downtown Los Angeles, and are on your way to lunch at your office building’s sandwich shop, at noon on a workday. The sandwich shop is in front of the downtown office building in which you’ve worked for quite some time. You are dressed in expensive business clothes. You have friends that eat at the sandwich shop, and you know the people who work there. You almost get to the sandwich shop, when you get accosted by a police officer, who starts screaming at you in front of the sandwich shop, and orders you to get on the ground, and spread your arms and legs out. You have done nothing wrong. You’re just going to get a sandwich for lunch at the sandwich shop, that’s 15 feet away. So you say to the officer: “Excuse me officer. Can you please tell me what’s going on.” The officer becomes agitated, and tells you to “Shut the f__k up”, and to “Get on the f__cking ground, now”. Again, you appeal to the officer’s sense of civility, and really do expect that basically, officers are honest and courteous, and will listen to reason, from law abiding, cop-supporting, non-threatening reasonable type people. So, you put your hands up in the surrender position and say to the officer: “Please officer, I’ll cooperate. But what’s going on?” This time the cop, out of nowhere, reaches out and violently grabs your forearm, and you instinctively yank your arm away from his grip and take a step backwards; still keeping your hands-up in the surrender position. He then escalates the force by grabbing your arm, spinning you around, and proceeds to put a carotid restraint hold on your neck, and after about 10 to 12 seconds you become unconscious. You wake-up handcuffed, while being shoved into the back seat of a police patrol car. Have you committed a crime (Section 148(a)(1))?
THE SAME EVENT FROM THE POLICE / DISTRICT ATTORNEY ”PERSPECTIVE.”
From the police / DA “perspective” (that’s being kind), they will take this situation, and find a way to somehow legitimize the actions of the police, and to demonize yours. The young and ambitious Deputy District Attorneys (or, in some courts, Deputy City Attorney, like for LAPD or Anaheim PD misdemeanor cases), who want to start making ties with the police (to run for Judge when the time comes; i.e. after getting enough support of the cops), decides to claim that you didn’t obey “a lawful police order” (whatever that is; no such statute in California, save failure to obey traffic officer [Vehicle Code Section 2800]; again, the “Creative Division”), or that you “resisted” the officer, by reflexively pulling your arm away from the officer when he unexpectedly grabbed your forearm, or that you took a step backward from the officer and that constituted “resisting” or attempting to escape a detention, or that you “delayed” the officer by making it take longer to detain and restrain you, or that you “obstructed” the officer’s investigation of you for any possible connection to the liquor store robbery. They even have so much “chutzpah“, that they’ll claim that you grabbed onto the officer’s arm to defeat his attempt to choke you unconscious (shocking), take a photo of a miniscule scratch on a cops pinky (that he got when your chin struck his fist), and then, charge you with additional bogus trumped-up charges like assault and battery on a peace officer (Cal. Penal Code Sections §§ 240/241(c) & 242/243(b)) or preventing / attempting to prevent an executive officer from performing a duty of their office (Cal. Penal Code § 69; a wobblier; i.e. a crime that can be charged as either misdemeanor or felony by DA.)
The “Creative Division” of the police agency (i.e. Professional Standards / Internal Affairs Division) gets to put their spin and direction on the officer’s “story” of your beating and arrest, during their initial interview of the officer. Under California’s Peace Officer’s Bill Of Rights, the cops get copies of all accusations against him, gets to see what everyone else is saying, and then gets to give his statement of the story of what happened with you, with his lawyer there, and having already seen everything and everyone’s claims and take. That is not the end. As things arise in the litigation (i.e. Judge making certain pre-trial rulings on search & seizure issues, or admissibility of evidence issues) the police version of the events slowly but surely, morph and evolve. Ladies and Gentlemen, beginning with your unlawful arrest, and changing all the way through trial, a version of the “story” will be created, that accounts for the legal import of the undeniable facts (i.e. anything recorded, like radio transmissions and Patrol Video System video / audio recordings), and then essentially, the officer will be directed, by the way that they are led and directed by the ”Creative Division” of the officer’s employing agency, to create a fabricated and twisted version of the events, that accounts for what cannot be denied, and denies or fabricates the rest. The cops are led through the questions by the Professional Standards / Internal Affairs Division investigators (i.e. the cops is then told that must have felt that he had to protect himself from the threat of you looking at him cross-eyed, so his beating his beating your brains in was the only means available to protect the cops from your potential threat. It’s really scary how creepy the Professional Standards / Internal Affairs Division investigators really are.)
For example, say the police were actually looking for a white male in a gray suit and a white shirt, medium height and weight, with brown hair. The Gentleman who the cops are looking for just robbed a liquor store, five minutes before you happen to show-up at the sandwich shop. That sidewalk / street intersection is very busy with pedestrian foot traffic, and there are lots of white males who are walking around wearing a gray suit, a white shirt and a tie, who is medium height (i.e. 5’9″) and medium weight (i.e. 160 lbs..) Now you happen to show-up at the sandwich shop. So, instead of having lunch with your pals at the sandwich shop, where every there could vouch for you, you’re accosted by uniformed police.
The police order you to lay down on the ground and to spread your arms and legs out, face down. You have done nothing wrong, but the cops and the DA will claim that you “resisted” a “lawful order” (whatever that is; the only crime under California law for disobedience of a peace officer, is for failing to obey a traffic officer; Vehicle Code Section 2800) by not immediately proning yourself down on the ground. When they then grab your forearm and you pull your arm away, the cops / DAs will claim that you resisted a detention. When you ask the cops what’s going on, and why does he want you to get on the ground, the cops and the DAs will say that you “obstructed” and “delayed” the police investigation, because the cops will claim that they wanted to ask you about the robbery, but that they couldn’t ask you questions without first ensuring their safety, and, therefore, your verbal protest or questioning of the police was a crime; violation of Section 148(a)(1.)
In fact, the misuse of Section 148(a)(1) is so bad, that recently a California Highway Patrol Officer arrested a fireman for violation of Section 148(a)(1), for refusing the Officers demand that the fireman move his firetruck, when the fireman was rendering medical aid to another; something clearly not a crime.
BECAUSE CAL. PENAL CODE SECTION 148(A)(1) IS SO VAGUE, IT IS THE MOST ABUSED STATUTE IN THE CALIFORNIA PENAL CODE, USED EVERYDAY TO PROTECT THE POLICE.
The facial and obvious ambiguity of Section 148(a)(1), along with the refusal of the politicians to do anything about it, is one of the fundamental problems that face us as a free people; Americans or “Trans-Americans” (Americans without rights.) There is no clear answer. The answer is purely a policy decision by that branch of government (i.e. the judiciary), because the other branches haven’t dealt with basic policy issues. If the jury believes that they would have immediately, and without question, and that it would have been unreasonable for you not to have done so, then your goose is cooked. Guilty, of behavior unbecoming those jurors. That’s how petty this issue gets. The practical answer is, that if you get a sympathetic jury, you may not get convicted; especially if you catch the cops lying and ditching evidence (standard operating procedure; really; this is no joke.) The cops’ stories in these cases typically are a work in progress; they change depending on what comes up. If you (by some miracle, even though you’re entitled to it) obtain the Internal Affairs Investigation of the same incident that you’re being prosecuted for (See, Rezek v. Superior Court, ); you’re supposed to get it, but in the real world, you almost always never do), and the story that the cops told the Professional Standards / Internal Affairs Division Investigators doesn’t jive with the present one, then they’ll just make something up; all with the guidance of the DA’s office. Really.
They fabricate enough around their prior conflicting statements, to get some “police procedures expert” to justify the unjustifiable. Please think back to the last time that you heard a police spokesman/lady tell an initial version of the police version of shooting a civilian on the news. Then, think later on, how different the adjudicated version comes out. There are many answers to that question; whether you committed a crime under the scenario described above. For example, if the officer didn’t have sufficient legal grounds to have detained you to begin with (i.e. “reasonable suspicion of criminality afoot”), the answer is generally “No”; you didn’t commit a crime, because if the officer was unlawfully detaining you, then he, by definition, was not engaged in the lawful performance of his duties, People v. Curtis, 70 Cal.2d 347 (1969) Therefore, as a matter of law, you can’t be convicted of violation of Section 148(a)(1) if you either didn’t know, or reasonably shouldn’t have known, that the officer was acting lawfully, at the time that you dared to ask him/her why they think that they can order you to prone yourself out on the ground.
So, you can’t kill a dead man. You can’t interfere with a cop that’s acting unlawfully, because the statute only proscribes interference with lawful police action. So, for example, if you are walking down the street, and you see that a police officer has an arrestee lying on the sidewalk, with his hands cuffed behind him, and his feet similarly shackled. You also see the police officer then take out his nightstick , and repeatedly, and seemingly not stopping in the near future, bash the man’s skull with the club. Because the crime (148(a)(1)) requires that you either knew, or reasonably should have known, that the cop was acting lawfully, and because it’s pretty evident from this hypothetical that the cop wasn’t acting lawful, that you wouldn’t be guilty. However, people get convicted of this every day.
How about, however, a situation that’s a lot less subtle. Should you really know that the cops are, or are not, acting lawfully, when they kick your door in, point guns at you, and start ordering you to lie on the floor? Are you committing a crime by insisting that the cops tell you what’s going on, before you prostrate yourself on the floor? Why is simple negligence, a crime? Who is this hypothetical “reasonable person”? However, politics is always the rule in public life, as state court judges are either elected into office, or must run for office when reelection time comes. Often a lawyer trying a misdemeanor Section 148(a)(1) case in front of a “good old boy” judge, must deal with a judge, who doesn’t want you to win. A lot of the career hard core former Deputy District Attorney or Assistant United States Attorney, as so brainwashed by their ascension up the political and social ranks, that they actually believe the lies of their pals; the police. They also feel like they are going to preponderate in favor of the prosecution, because he doesn’t want to see some upstart sue his deputy or officer pals. He / She becomes their self-appointed guardians; especially if they want the police endorsements for reelection, as a “tough on crime” judge.
When you instinctively pulled your arm away from the police officer, you had no intention of “resisting or delaying or obstructing” a peace officer. You don’t really even know what that means. You don’t have any idea why you’re being grabbed, or, whether any such grabbing is lawful. You couldn’t possibly know whether the officer had sufficient legal grounds to have “seized” you. Since a person being charged with Section 148(a)(1) must have either known, or reasonably should have known, that the person who they were dealing with was a peace officer, who was engaged in the [lawful] performance of his/her duties, one would think that there would be, a published appellate decision involving that issue. However, there are none; only on the performance of duties issue (i.e. CALCRIM 2670 – Lawful Performance Of Duties); not on the issue of whether the defendant’s knowledge of the lawfulness of the police conduct, that you supposedly “resisted or obstructed or delayed”, is either an element of that offense, or, is an affirmative defense in a Section 148(a)(1) case.
It is “self-evident” that if a Cal. Penal Code Section 148(a)(1) criminal defendants of the lawfulness of the police action such knowledge by the defendant charged with violating Section 148(a)(1) of the lawfulness of the police actions, is, logically, should be a discrete element of the offense. Also, this standard of a person being charged with Section 148(a)(1) must have known, or reasonably should have known that the person who they were dealing with was a peace officer, engaged in the performance of his/her duties, is criminalizing what is really simple negligence. This issue also (should simple negligence be a crime) is also not yet developed under California law. The moral of this story is this. The government can demean you for no particular reason, other than, that the cops wanted a little action on Saturday night. If you dare not immediately comply with anything that they tell you to do, their “persecutor” pals at the DA’s office, is going to get a little ambitious, and coming running to the aid of the officer who just kicked your ass (for fun)
Police Create The Conditions That “Necessitated” Any Use Of Force; Often For Fun.
Take the scenario shown above. Under the modern American rules of engagement (i.e. how police officers really react in the real world), the police now are angry, and this time, the officer tases you. When you scream-out in pain, the police proceed to beat you up. According to modern police protocol, if they beat, tase, slam, bam, pepper-spray, club other ways physically harm you, they will then arrest you, take you to jail, and then get with their Sergeant and fellow officers, and start to concoct a false version of the events. That is reality, and no one cares. The Judges don’t care. The DA’s don’t care. The politicians don’t care. The police don’t care. The body politic does not care. The only people who do care, are your friends and relatives.
If it was unreasonable to grab you or to make you prone-out on the ground, the officer was acting unlawfully by his manner of restraining you, and, therefore, you are not guilty of any crime that requires the officer to be acting lawfully, to be considered to be engaged in the lawful performance of his duties. See, People v. Curtis, 70 Cal.2d 347 (1969) (cops must be acting lawfully, to be “engaged in the performance of their duties”, so if cop using unreasonable force on civilian, civilian cannot be guilty of any crime where the lawful performance of duties required.) Also, the choke-out is unreasonable force, and, therefore, again, the officer is not engaged in the performance of his duties.
The DA’s and the police agencies really don’t care. They’ll try to get you prosecuted for Section 148(a)(1) if they can. Many people take a plea bargain of pleading straight-up to the charge, or to disturbing the peace. They don’t realize that they’re pleading their civil rights away. You are now the enemy of the government; right or wrong, good or bad.
Step Two; The Constables Write False Police Reports To Get You Criminally “Persecuted.”
In the often twisted legal analysis in the minds of young and ambitious Deputy District Attorneys, defending the honor and virtuous image of a police agency, is indeed a rewarding and career enhancing endeavor. It is prestigious, it familiarizes a particular law enforcement with the young and ambitious Deputy District Attorney. Therefore, the police will almost always attempt to protect themselves from you by convicting you for a crime that didn’t commit against the police, but the police committed against you. Cal. Penal Code § 148(a)(1), otherwise known as “Contempt of Cop”, is the most vague, and definitely the most abused criminal statute in California, simply because it’s so vague. It’s like “Alice in Wonderland”; it means everything and it means nothing. It’s over inclusive; it’s under inclusive. It means whatever the jury wants it to mean.
For example, what does “resisting” an officer mean? Is not immediately dropping to the ground on one’s belly and putting one’s hands behind one’s back, after being ordered to do so by a peace officer, a crime? If so, why? Is failing to open the door to one’s home when directed to do so by a peace officer a crime? Warrant in hand or not? If so, why? Is failing to exit one’s residence when ordered to do so by a peace officer a crime? Is demanding to know what’s going on before complying with police orders a crime? Is failing to identify oneself to a peace officer upon a demand to do so, a crime? Is verbally challenging a peace officer’s authority to do something, a crime? Is arguing with a police officer “delaying” an officer’s investigation? Is causing an officer to deal with you “delaying” a peace officer? How do you know if the peace officer is engaged in the lawful performance of his/her duties; something necessary for that crime to be committed? People v. Lopez, 188 Cal. App. 3d 592 (1986.)
Since the officer is not engaged in the lawful performance of his/her duties if they’re acting unlawfully in any manner (i.e. cops don’t have duty to violate the law, so they’re not in the performance of their duties if they’re acting unlawfully; See, People v. Curtis, and you don’t know while you’re being held at now gunpoint and being ordered to prone-out on dirty ground in your nice suit or dress. How can anyone be guilty under these circumstances of anything? Do we have to immediately and without question, obey whatever “commands” that we are given by a Constable? No reasonable person of average intelligence could possibly know the answers to these questions. However, persons are convicted for these very acts and omissions in California every day.
California Penal Code § 148(a)(1) is the quintessential statute that really is “void for vagueness.” See, Skiling v. United States, ___ U.S. ____ (2010.) Section 148(a)(1) is also the statute of choice by police officers to arrest a civilian for violating, for non-criminal conduct, such as for “failing the attitude test“, and other non-criminal actions (i.e. questioning or challenging or protesting police conduct) that lead to Section 148(a) arrests. The ambiguity of Cal. Penal Code § 148(a)(1) creates an opportunity to arrest innocents for “imaginary”(contrived) conduct, that is really no crime at all. Section 148(a)(1) prosecutions are the government’s vehicle to beat-down the victims of the police abuse (i.e. false arrests, excessive force); to use a criminal case to preclude or impair civil redress to those police abuse victims. See, Heck v. Humphrey, 512 U.S. 477 (1994) (can’t sue for false arrest if convicted of crime, even if government didn’t have warrant or probable cause to arrest when arrest was made); See also, Susag v. City of Lake Forest, 94 Cal.App.4th 1401 (2002) (can’t sue cops for excessive force if convicted of resisting arrest.)
There are a variety of Appellate Court cases that provide guidance on what exactly, Section 148(a)(1) prohibits, and what type of conduct is, or is not, proscribed by that statute. So, for example, various California Appellate cases regarding Section 148(a)(1) show guiding lights as to what that statute means, such as: 1) a person need not quickly respond to even lawful police commands, and has a Constitutional right to verbally challenge, dispute or protest police actions; People v. Quiroga, 16 Cal.App.4th 961,966 (1993); 2) such as Section 148(a)(1) being held not to apply to verbal conduct:
“Section 148 deals with core criminal conduct. To characterize it as a statute broadly criminalizing speech directed to an officer or aimed at speech is simply wrong. Section 148 is not substantially overbroad. This is not to say that one could not trudge the path appellant lays out, but that his conclusion is unlikely and the reality of such application minuscule” (In Re Andre P.