State v. Bledsoe ( 2021 )

183
Argued and submitted September 9, 2020, affirmed May 5, petition for review
denied October 14, 2021 (368 Or 637)
STATE OF OREGON,
Plaintiff-Respondent,
v.
TIESHA L. BLEDSOE,
Defendant-Appellant.
Washington County Circuit Court
17CR73158; A168021
487 P3d 862
Defendant refused to show proof of her Tri-Met train fare and kept walking
despite a police officer ordering her to stop. She was convicted of interfering with
a peace officer, ORS 162.247(1)(b), for refusing to obey the order. On appeal, she
assigns error to the trial court’s denial of her motion for judgment of acquittal.
She contends that she was engaged in “passive resistance,” which is exempted
from the crime of interfering with a peace officer under ORS 162.247(3)(b),
because she continued on her course without altering her conduct in response to
the officer’s order. Held: The trial court did not err in denying the motion. ORS
162.247(3)(b)’s exemption for “passive resistance” does not apply to active, phys-
ical conduct like walking away from an officer. Defendant’s proposed approach
based on whether an individual alters his or her conduct is problematic both
because it would permit an individual engaged in unlawful conduct to walk away
from police when they approach and because it would criminalize several “text-
book” passive resistance techniques that the legislature sought to protect.
Affirmed.
Andrew Erwin, Judge.
Anne Fujita Munsey, Deputy Public Defender, argued
the cause for appellant. Also on the briefs was Ernest G.
Lannet, Chief Defender, Criminal Appellate Section, Office
of Public Defense Services.
Daniel Norris, Assistant Attorney General, argued
the cause for respondent. Also on the brief were Ellen F.
Rosenblum, Attorney General, and Benjamin Gutman,
Solicitor General.
Before Lagesen, Presiding Judge, and James, Judge, and
Kamins, Judge.
184 State v. Bledsoe
KAMINS, J.
Affirmed.
James, J., concurring.
Cite as 311 Or App 183 (2021) 185
KAMINS, J.
Defendant refused to show proof of her TriMet train
fare and kept walking despite a police officer ordering her
to stop. She was convicted of interfering with a peace offi-
cer for refusing to obey the order and now assigns error to
the trial court’s denial of her motion for judgment of acquit-
tal. On appeal, she contends that she was engaged in “pas-
sive resistance,” which is not punishable under the statute,
because she continued on her course without altering her
conduct in response to the officer’s order. Because we con-
clude that walking away is active, not passive, conduct, we
affirm the trial court’s denial of the motion for judgment of
acquittal.
The relevant facts in this case are undisputed.
Defendant was riding a TriMet train when she was
approached by a TriMet rail supervisor and asked to show
proof of fare. Defendant ignored the TriMet employee and,
when the train arrived at the transit center, walked off the
train away from the employee. The TriMet employee sig-
naled uniformed police officers at the station, and one of the
officers ordered defendant to stop and show fare. Defendant
continued walking at a steady pace, despite the officer
ordering defendant to stop and show proof of fare three more
times. Eventually, two officers each took one of defendant’s
arms and stopped her forward motion.
Defendant was charged with interfering with a
peace officer, ORS 162.247, for refusing to obey the officer’s
order.1 She was tried by a jury, and, at the end of the state’s
case, she moved for a judgment of acquittal on the charge of
interfering with a peace officer. As relevant here, defendant
argued that, by continuing to walk away from the police offi-
cers, she was engaged in “passive resistance” which, under
ORS 162.247(3)(b), exempts a person from the crime of inter-
fering with a peace officer.
1
Defendant was also charged with several other offenses relating to her
failure to pay her fare and for kicking one of the arresting officers, including
interfering with public transportation, ORS 166.116, harassment, ORS 166.065,
criminal trespass in the second degree, ORS 164.245, and theft of services, ORS
164.125. The trial court granted a judgment of acquittal on the charge of second-
degree criminal trespass, and the jury convicted defendant on all other counts.
Defendant does not assign error to those convictions.
186 State v. Bledsoe
The trial court denied the motion, concluding that
“[t]he charge is not resisting arrest, the charge is inter-
fering with a lawful order, and here, there’s sufficient evi-
dence before this jury to determine that there was a lawful
order given.” The state asked the court to “make a specific
finding as to this issue of passive versus active resistance,”
but the trial court refused “because resistance hasn’t been
charged.” The jury convicted defendant of interfering with
a peace officer, and she appeals that conviction, assigning
error to the trial court’s denial of her motion for judgment of
acquittal.
In reviewing the denial of a motion for judgment
of acquittal, we determine whether, viewing the evidence
in the light most favorable to the state, any rational fact-
finder could have found the elements beyond a reasonable
doubt. State v. Simmons, 279 Or App 756, 758-59, 379 P3d
580, rev den, 360 Or 697 (2016). When the dispute centers on
the meaning of a statute, however, the issue is one of stat-
utory construction, which we review for legal error. State v.
Hirschman, 279 Or App 338, 344, 379 P3d 616 (2016).
On appeal, defendant renews her argument that
her behavior of continuously walking before, during, and
after the officer ordered her to stop was simply passive
resistance that is exempted from criminal liability under
ORS 162.247(3)(b).2 The state responds that the trial court
was correct to deny defendant’s motion because continu-
ing to move away from a police officer after being ordered
to stop is “active” and therefore cannot constitute passive
resistance.3
2
We recently held that an officer’s order for a passenger to show proof of fare
is not lawful unless it is supported by an individualized reasonable suspicion
that the passenger has committed a crime. State v. Almahmood, 308 Or App 795,
807, 482 P3d 88 (2021). Although defendant does not challenge the lawfulness
of the officer’s order to stop, the officer’s testimony indicated that he developed
individualized reasonable suspicion that defendant had not paid the fare when he
heard the TriMet employee asking defendant to show proof of fare but observed
her ignore the employee and walk away.
3
The state also argues, for the first time on appeal, that passive resistance
is an affirmative defense that defendant had the burden to prove at trial or even
if passive resistance is a standard, not an affirmative defense, defendant did not
properly “raise” it. Because we affirm the denial of the motion for judgment of
acquittal, we do not address this argument.
Cite as 311 Or App 183 (2021) 187
The parties’ arguments present conflicting inter-
pretations of the conduct that is subject to liability under
ORS 162.247. ORS 162.247(1)(b) provides that a person com-
mits the crime of interfering with a peace officer when the
person, “knowing that another person is a peace officer,”
“refuses to obey a lawful order” given by that peace officer.4
ORS 162.247(3)(b) creates an exemption, providing that the
statute “does not apply” to “[p]assive resistance.” To resolve
this dispute, we must determine the meaning of “passive
resistance” for purposes of ORS 162.247(3)(b).
Our goal in construing the statute is to “discern the
legislature’s intent * * * looking primarily to the statute’s
text, context, and legislative history.” State v. McNally, 361
Or 314, 321, 392 P3d 721 (2017) (citing State v. Gaines, 346 Or
160, 171-72, 206 P3d 1042 (2009)). The Supreme Court has
already had the opportunity to interpret the phrase “pas-
sive resistance,” although for a different reason—to deter-
mine whether a defendant’s conduct must involve an act or
technique used during governmental protests to qualify as
“passive resistance.” McNally, 361 Or at 318, 321. Because
“passive resistance” is undefined in the statute, the court
looked to its “plain, natural, and ordinary meaning.” Id. at
321. Finding the phrase to be a term of art, the court con-
sulted both Webster’s Third New Int’l Dictionary and Black’s
Law Dictionary, observing that the phrase has “the same
meaning whether considered in a lay or a legal context.”
Id. at 322. Under either definition, “passive resistance
is opposition to an exertion of a government or occupying
4
ORS 162.247 provides that,
“(1) A person commits the crime of interfering with a peace officer or
parole and probation officer if the person, knowing that another person is a
peace officer or a parole and probation officer as defined in ORS 181A.355:
“* * * * *
“(b) Refuses to obey a lawful order by the peace officer or parole and pro-
bation officer.
“* * * * *
“(3) This section does not apply in situations in which the person is
engaging in:
“(a) Activity that would constitute resisting arrest under ORS 162.315;
or
“(b) Passive resistance.”
188 State v. Bledsoe
power—a refusal to cooperate with that government or occu-
pying power—without use of violence or active conduct.” Id.Because the legislative history discussed a desire
to insulate protest or civil disobedience from liability, the
court acknowledged that the legislature “had in mind pro-
tecting from arrest individuals who were engaged in a
peaceful political protest or some other kind of nonviolent
civil disobedience.” Id. at 336. However, the court observed
that this “legislative history does not suggest that the legis-
lature intended the phrase ‘passive resistance’ to apply only
in those situations.” Id. (emphasis in original).
Accordingly, the court concluded that, for purposes
of ORS 162.247(3)(b), passive resistance encompasses “non-
cooperation with a lawful order of a peace officer that does
not involve active conduct.” Id. at 339. Put another way, “the
two central elements of ‘passive resistance,’ as used in ORS
162.247(3)(b), are the ‘passive,’ as opposed to active, nature
of the defendant’s conduct, and the notion of noncooperation
with or refusal to obey a government agent’s order.” Id. at
323.
As there is no dispute that defendant was nonco-
operative with the officer’s order, our inquiry is focused on
the first element: “passive, as opposed to active” conduct. As
passive is defined by what it is not—active—we turn to a dic-
tionary to understand the term “active.” In a lay dictionary,
active is defined as “characterized by action rather than by
contemplation or speculation; productive of action or move-
ment; expressing action as distinct from mere existence or
state.” Webster’s Third New Int’l Dictionary 22 (unabridged
ed 2002).5 The legal dictionary defines “active conduct” as
“[b]ehavior that involves a person doing something by exert-
ing will on the external world.” Black’s Law Dictionary 370
(11th ed 2019).
These definitions, requiring physical movement or
other impact on the external world, are consistent with the
analysis in McNally. Although the court did not define the
meaning of “active,” it acknowledged that “a person who
runs away when lawfully ordered by a peace officer to stop”
5
Webster’s example of an “active verb” is “walks.” Id.Cite as 311 Or App 183 (2021) 189
is not passively resisting. McNally, 361 Or at 335. On several
occasions, the court equated “active” conduct with “physical”
conduct. In acknowledging the state’s concern that many
cases involving interfering with a police officer involve pas-
sive resistance, the court noted that, “[p]erhaps the majority
of refusals to obey a lawful order of a peace officer are in
fact passive, but it also is not difficult to conceive of scenar-
ios in which a person actively, physically, refuses to obey.”
Id.This case presents one of these “scenarios.” Id.There is no dispute that defendant was engaged in active,
physical movement—the activity of walking. And there is no
dispute that she refused to obey the order to stop.
An examination of the McNally concurrence con-
firms this understanding. 361 Or at 344-45 (Kistler, J., con-
curring). Three justices concurred, parting ways with the
majority over whether the exception was limited to activities
associated with governmental protest. In so concluding, the
concurrence observed that the term consisted of two com-
ponents: “passive,” which describes “the type of resistance,”
and “resistance,” which implies “a requirement that a per-
son refuse to comply with an officer’s order for some reason,
not for any reason or no reason at all.” Id. at 341. Because
the majority’s focus was on “the nature of the resistance
(passive as opposed to active) as the sole defining element,”
the concurrence disagreed with its construction. Id. at
344-45.
Of note, the concurrence worried that if any instance
of a person “passively declin[ing] to comply” with an officer
amounts to passive resistance, then “little is left” of the pro-
hibition on interfering with a peace officer:
“It may be, as the majority notes, that a defendant can
actively but peaceably refuse to comply with a lawful order.
And it may follow that, as a result, the majority’s defini-
tion of ‘passive resistance’ does not leave the prohibition in
ORS 162.247(1)(b) completely devoid of content. However,
the fact that the majority’s interpretation does not eviscer-
ate the prohibition is hardly a reason for embracing it if
another interpretation reasonably gives greater effect to
the prohibition.”
190 State v. Bledsoe
Id. at 341-42. If defendant’s active, peaceable conduct qual-
ifies as passive resistance, then what “little is left” of the
prohibition on interfering with a peace officer would vanish.
Indeed, such an interpretation would mean that someone
engaged in unlawful conduct who sees an officer approach
can simply walk away—even if the officer has reasonable
suspicion that they are committing a crime and orders them
to stop as a result of that suspicion. So long as they began
walking before the officer issues an order, they would be free
to walk away.
Even more problematic, an approach like the one
defendant proposes that turns on the cessation or continua-
tion of conduct—as opposed to whether it is “active”—would
criminalize conduct that the legislature sought to protect.
If an officer attempts to direct a person who is already in
motion, the person could not passively resist the order by
stopping, sitting down, or taking any action that typically
amounts to passive conduct. See, e.g., Saulny v. New Orleans
Police Dep’t, ___ So3d ___, 2020 WL 1173590 at *4 (La Ct
App 2020) (recognizing “ ‘text book’ passive resistance” as
folding one’s arms and refusing to comply). If the person
decides to stop at that point, it would amount to a cessation
of prior conduct and would, under defendant’s rationale, not
constitute passive resistance.
Excluding walking and other active, physical con-
duct from “passive resistance” is faithful to the McNally
court’s effort to “criminalize[ ] the obstruction of the work of
the government and peace officers through active physical
conduct, while at the same time broadly respecting constitu-
tional principles of freedom of speech and assembly.” 361 Or
at 338. Although defendant did not alter her conduct when
the order to stop came, passive resistance does not turn on
the cessation or the continuation of conduct. Conduct that
is active and noncooperative does not amount to passive
resistance.6
Affirmed.
6
We share the significant concerns raised by the concurrence about the ineq-
uities in the administration of justice which, as the concurrence acknowledges,
are outside our scope of review in this case.
Cite as 311 Or App 183 (2021) 191
JAMES, J., concurring.
On the discrete legal issue presented on appeal—
whether, when faced with an order to stop, a defendant’s
continued walking qualifies as “passive resistance” such
that the conduct does not constitute the crime of interfering
with a peace officer (IPO), ORS 162.247—I concur with the
majority that it does not. Based upon the Oregon Supreme
Court’s interpretation of “passive resistance” in State v.
McNally, 361 Or 314, 335, 392 P3d 721 (2017), in particular
the court’s observation that “a person who runs away when
lawfully ordered by a peace officer to stop would violate ORS
167.247(1)(b) and would not be engaged in passive resis-
tance,” the majority correctly reasons that “active” conduct
is not passive resistance, and movement is, by definition,
active. I agree that McNally appears to dictate the result
here. Accordingly, after being given an order to stop, defen-
dant’s continued movement, no matter how leisurely, and
no matter that it in no way seriously threatened to inter-
fere with the officer’s ability to ultimately take defendant
into custody, was not passive resistance, and that continued
movement could constitute a refusal to obey a lawful order
sufficient to sustain a conviction of interfering with a peace
officer. I write separately, however, for two reasons. First, I
write to illuminate the challenges that ORS 162.247 poses
to the equitable administration of justice in Oregon. Second,
I write to illuminate what this record reflects about the way
the law was applied to this particular defendant.
The defendant in this case, Tiesha Bledsoe, is a
Black woman who grew up in Oregon. At the time of this
incident, she was 38 years old and appears to have had no
Oregon criminal record for the first 36 years of her life.
However, beginning in 2016, Ms. Bledsoe began to have
a series of encounters with law enforcement resulting in
arrest—almost all for low-level offenses mostly involving
TriMet. The vast majority of those arrests, for petty crimes
like failure to pay a fare, or trespass in the second degree,
either were not prosecuted, or prosecution began but then
the case was dismissed.
On November 1, 2017, Ms. Bledsoe was on a TriMet
train headed to the Beaverton transit station when she was
192 State v. Bledsoe
approached by a fare inspector. The inspector asked to see
her fare, but she did not respond. When the train pulled
into the stop, Ms. Bledsoe exited the train, and calmly
walked towards an officer on the platform. Alerted by the
fare inspector, two officers ordered her to stop and show her
fare. She did not acknowledge them. One officer allowed her
to pass him, then fell in behind her. He ordered her to stop
and show her fare three times, but she did not respond or
acknowledge the officer. Her course and pace of travel did
not change. By all accounts, it was a calm and leisurely
affair that ended in the officers grabbing Ms. Bledsoe’s arms
from behind and arresting her, for, among other things, fail-
ure to pay a fare, and interfering with a peace officer, ORS
162.247, for her refusal to comply with the orders to stop.
The record does not reflect why defendant didn’t
acknowledge the fare inspector or why she continued
to walk away from the officer without speaking to him.
But, by the time of this encounter, she had already been
arrested, jailed, then released, for minor offenses like tres-
pass in the second-degree multiple times. We should not
ignore the backdrop of those encounters: A Black Oregonian
in the Portland metro area is 4.9 times as likely to be
arrested for second-degree trespass as a white Oregonian.
See Racial and Ethnic Disparities in Multnomah County,
2019, https://www.documentcloud.org/documents/6559824-
Multnomah-R-E-D-Analysis-2019-Final-November-19.html
(accessed Apr 4, 2021). And the stakes of those encounters
are higher. Black Americans, on the whole, are at least 2.5
times more likely to be shot and killed in police encoun-
ters than white Americans. United States v. Knights, 989
F3d 1281, 1296 (11th Cir 2021) (Rosenbaum, J., concur-
ring) (citing, in part, Jamison v. McClendon, 476 F Supp 3d
386, 390-91 n 1-19 (SD Miss 2020) (cataloguing some Black
Americans’ deaths in police encounters)).
Ultimately, defendant was incarcerated in the
Washington County Jail. On November 2, 2017, the court
arraigned defendant in her cell. As noted by the public
defender present, “She was lying on her bed with the blan-
ket over her head, so I was unsure about how much she
heard from what we told her.” Defense counsel did not ask
for her release, and no release decision was made at that
Cite as 311 Or App 183 (2021) 193
time. The court set a future status date of November 27,
2017, and defendant remained in jail.
While defendant remained in jail, her court-
appointed attorney attempted to meet with her, but she did
not leave her cell. The records before us on appeal include
no medical records or history to suggest mental illness; it
appears that, based solely on her refusal to leave her cell,
counsel filed a motion asking the court to have defendant
evaluated for her mental capacity to aid and assist in her
defense, under ORS 161.370. On November 27, 2017, defen-
dant again refused to leave her cell and the court ordered
her committed to the Oregon State Hospital for evaluation.
After roughly six weeks at the Oregon State
Hospital, Ms. Bledsoe was evaluated by a psychiatrist.
According to the doctor, Ms. Bledsoe was perfectly cognizant
of her circumstances. When asked about her understand-
ing of the nature of her hospitalization and evaluation, she
responded, “[t]o see if I understand what is going on as far as
court, and if I am able to basically respond. * * * Told I have
to be here. No other choice but to [participate].”
During the interview, the doctor asked Ms. Bledsoe
about her general mood, to which she replied, “Well, I’ve been
in jail so, I wouldn’t say it’s ah down but I’ll say more like
kind of bored. In a cell 24 hours a day.” When asked about
why she remained in her cell, and why she didn’t engage
with people in the jail, Ms. Bledsoe stated, “I do nothing.
Stay to myself. Only way how to do it. Stay to yourself and
stay out of trouble.”
Ultimately, the doctor found Ms. Bledsoe engaging
and informed. She understood the court system, the role of
her attorney, and how to present a defense. She displayed
no symptoms of any mental illness or substance abuse. The
interview ended with Ms. Bledsoe telling the doctor, “Hope I
don’t see you again,” which the doctor found humorous.1
1
It appears from the record that Ms. Bledsoe was at the Oregon State
Hospital at least six weeks. The cost to the State of Oregon to send a defendant
to the hospital for an aid and assist evaluation is approximately $1,324 per day.
Gordon R. Friedman, Costly, ineffective, cruel: How Oregon ensnares mentally ill
people charged with low-level crimes, The Oregonian (Jan 27, 2019), https://www.
oregonlive.com/news/g66l-2019/01/a646cacb3c6955/costly-ineffective-cruel-
how-oregon-ensnares-mentally-ill-people-charged-with-lowlevel-crimes.html
194 State v. Bledsoe
On February 1, 2018, upon being returned to the
Washington County Jail, the court held a status hearing. At
that time, despite the psychological report, defense counsel
indicated his intent to contest the findings, believing defen-
dant still unable to aid and assist. That further hearing
was set another five weeks out—five weeks defendant would
remain in jail before her trial, unless she began cooperating
with counsel:
“[DEFENSE COUNSEL]: And Your Honor, we are
requesting a contested hearing about five weeks out. That—
that could very well go away, Your Honor. I will note that I
have tried to meet—I or a person from my office has tried
to meet with [defendant] five times during the pendency of
this case, and every time that has been refused. This is the
first time that I’ve actually been able to speak with [defen-
dant]. I’m hoping that we can talk going forward, if—if we
are, we’ll have discussions, then that might go away. But
right now I still have concerns.”
Counsel eventually moved, a second time, to have defen-
dant declared unable to aid and assist, but that motion was
denied.
Eventually, on May 3, 2018, 183 days after she first
entered custody for her suspected failure to pay her TriMet
fare—six times longer than the maximum 30-day sentence
for that crime allowable by law, but within the 364-day max-
imum for IPO—the State of Oregon tried defendant. She
was not present for her trial, remaining instead in her cell.
The jury found her guilty, and the trial court, expressing
some frustration with this case, refused the state’s request
for formal probation, entering a sentence of discharge on all
counts.
Based on a failure to pay a train fare, and her “refusal
to obey” an order by calmly continuing to walk down the
train platform, Ms. Bledsoe spent six months incarcerated
in Oregon awaiting trial. Her experience in the criminal
justice system—and specifically with the charge of IPO—is,
unfortunately, not unique; it is mirrored by many persons
in Oregon who live in the margins, and who find themselves
(accessed Apr 26, 2021). The ballpark cost in Ms. Bledsoe’s case would be, very
roughly, $55,608, or a little over 22,000 TriMet tickets.
Cite as 311 Or App 183 (2021) 195
caught in a revolving door of low-level petty offenses and
frequent police contact. That police contact eventually, and
invariably, gives rise to a charge of IPO. And, as was the
case here, those charges can contribute to extended depriva-
tions of liberty before the charges are even tried.
ORS 162.247 is a challenging law in application. It
aims to protect an officer’s ability to carry out their sworn
duties—an undeniably necessary goal. However, unlike
many crimes, the acts that can support a charge of IPO can
vary widely. The statute offers no limitation on the nature
of the lawful order given by an officer, nor does it limit the
seriousness of the circumstances under which a refusal to
obey the order is a crime. Despite police-citizen encounters
being highly fact specific and often turning on the totality
of the circumstances, for purposes of ORS 162.247, all police
orders are treated the same.
Additionally, the statute offers no guidance on what
it means to “refuse to obey” an order. The statute does not
define what constitutes refusal, nor does it link the refusal
to the creation of an officer or public safety risk. Whether a
person is arrested for IPO largely turns, therefore, on the
subjective perceptions of the officer who is left to differenti-
ate between mere reluctance or delayed acquiescence, from
refusal. As such, ORS 162.247 is, in essence, an attitude
crime.
Whether a defendant is arrested and charged with
IPO, in addition to whatever was the basis of the stop origi-
nally, largely turns on the subjective perceptions of the offi-
cer about the attitude of the defendant during the police-
citizen encounter. That subjective aspect of IPO provides an
open door for implicit bias. As has been acknowledged,
“the enforcement of IPO can at times appear arbitrary, and
even those who believe they are complying with an order
may find themselves subjected to the charge. * * * [T]he
data reflects significant racial disparities in the rela-
tive rates of arrest for the crime of IPO. Per the [Oregon]
Criminal Justice Commission, a Black person is roughly
three and a half times more likely to be arrested for IPO
than their overall representation in Oregon’s census would
suggest.”
196 State v. Bledsoe
Testimony, House Committee on Judiciary, HB 3164, Feb 24,
2021, (statement of Aaron Knott, Multnomah County
District Attorney’s Office).
This subjective aspect of IPO has real world conse-
quences. IPO is a Class A misdemeanor—the most serious
misdemeanor, punishable by up to 364 days in jail. For petty
offenses—Class B and C misdemeanors—it is exceedingly
rare for a defendant to be held in jail. But the presence of
a Class A misdemeanor can, and does, affect release deci-
sions and the setting of bail amounts. The result is that, for
all practical purposes, a defendant can remain incarcerated
awaiting trial not for the crime for which they were stopped,
but for the officer’s subjective interpretation to how they
reacted to being stopped.
Previously, the sole limitation on this otherwise
broad and subjectively applied statute was the exclusion of
passive resistance. There is no dispute that the legislative
intent of the statutory language excluding passive resistance
was to protect peaceful political protest activity. See McNally,
361 Or at 331 (“[T]he legislative history of the amendments
to ORS 162.247 is replete with statements indicating the
legislature’s interest in ensuring that nonviolent political
protestors would not be punished under ORS 162.247.”).
However, in the wake of McNally, the passive resistance
exclusion does not apply for a defendant who makes any kind
of movement. A step forward or back, a turn of the body or
head—these are all actions. Virtually any human act short
of rigid immobility in response to an order does not qualify
as passive resistance under this interpretation. The ironic
end result is that the quintessential peaceful political pro-
test activity—the march—is not protected. Under our rea-
soning in this case, dictated by McNally, a political protestor
engaged in a peaceful march, when lawfully ordered by a
police officer to stop that protest activity, must comply, and
continuing to peacefully march constitutes unlawful active,
not passive, resistance. This is required under McNally, but
it is clearly and obviously contrary to legislative intent.
Whatever minor limitation the legislature’s exclu-
sion of passive resistance placed on this statute has been
effectively undone by the holding in McNally. ORS 162.247
Cite as 311 Or App 183 (2021) 197
will continue to be subjectively applied, disproportionately,
against communities of color, the poor, and the marginal-
ized. IPO charges will continue to accompany smaller petty
offenses, and thereby elevate the seriousness of a crimi-
nal case by virtue of its status as a Class A misdemeanor,
resulting in more people held in jail pretrial, at significant
expense to Oregon taxpayers, and resulting in significant
disruption to lives, families, and communities.
Despite those concerns with ORS 162.247 how-
ever, they are the expressions of one judge on an interme-
diate appellate court positioned in a much wider world. It is
unquestionably the role of the legislature to declare which
acts are so offensive to society that they should be criminal-
ized, and to penalize them accordingly within constitutional
limits. State v. Smith, 128 Or 515, 524, 273 P 323 (1929)
(“The power to declare what punishment may be assessed
against those convicted of crime is not a judicial, but a
legislative, power, controlled only by the provisions of the
Constitution.”). When the legislature has enacted a statute,
it is not the role of a court to “insert what has been omitted,
or to omit what has been inserted.” ORS 174.010; see also
PGE v. Bureau of Labor and Industries, 317 Or 606, 611, 859
P2d 1143 (1993). And when the Supreme Court has inter-
preted a statute, it is the role of lower courts to faithfully
adhere to that ruling.
Accordingly, I concur in the judgment in this case.
But even still, there is a role to play. Judicial opinions serve
many functions, and one of those is journalistic. Our opin-
ions are dispatches from the edge—moments, recounted for
posterity, of how Oregon’s laws—like ORS 162.247—and the
lives of its citizens, intersect. In the case of Ms. Bledsoe—
from her arrest, to her trip to the state hospital, her six
months in jail, and her trial in absentia—the law was ever
present; justice, in my view, not so much.
I respectfully concur.