Jurco v. State , 1992 Alas. App. LEXIS 13 ( 1992 )

BRYNER, Chief Judge,

dissenting.

I disagree with the court’s decision to affirm Jurco’s disorderly conduct conviction. In my view, Jurco was entitled to an instruction on his theory of defense on this charge: that he was seeking to protect his property from what he reasonably believed to be an unlawful taking.

Under Alaska law, the right to use force in defense of property is expressly defined by statute. In AS 11.81.350(a), Alaska’s legislature has explicitly authorized a person to “use nondeadly force upon another when and to the extent the person reasonably believes it is necessary to terminate what the person reasonably believes to be ... an unlawful taking ... of property....”

The majority of this court effectively amends the defense of property statute by engrafting to it an exception that the legislature evidently chose not to include. The court does so in reliance on its own notions of desirable social policy. It is not this court’s prerogative, however, to substitute its political views for those expressed by the legislature in the clear and unrestricted language of AS 11.81.350(a).

The court attempts to justify its decision by reliance on Miller v. State, 462 P.2d 421, 426-27 (Alaska 1969). That case dealt with an individual’s right to use force to resist an unlawful, but peaceable arrest by a police officer. When Miller was decided, no legislative enactment defined the right to use force in self-defense. Under the common law rule, applicable by default in the absence of controlling statute, individuals were allowed to defend themselves against unlawful arrests. The Alaska Supreme Court, however, noted a recent trend away from the traditional common law rule. Finding strong social policies supporting this trend, the court modified the common law rule and precluded the use of force in self-defense against a police officer attempting to make a peaceable arrest, regardless of the legality of the officer’s conduct.

We no longer operate in a statutory void. The Alaska legislature has spoken, adopting a comprehensive statutory scheme that defines the extent to which force may be used in self-defense, as well as in defense of property. See AS 11.81.330 (use of non-deadly force in self-defense); AS 11.81.335 (use of deadly force in self-defense); AS 11.81.340 (use of force in defense of a third person); AS 11.81.350 (use of force in defense of property and premises); AS 11.81.-400 (use of force in resisting or interfering with arrest).

As an integral part of this scheme, the legislature has adopted a specific statutory provision that embodies the rule adopted in Miller, precluding the use of self-defense against a police officer who attempts to make a peaceable but unlawful arrest. See AS 11.81.400. In contrast to this limitation on the use of force against a police officer in self-defense, the legislature has notably omitted any comparable restriction on the permissible use of force to prevent the unlawful taking of property by an officer.

Given the legislature’s enactment of a comprehensive scheme regulating permissi-

ble use of force in defense of both persons and property, its inclusion in that scheme of a restriction against use of self-defense against police officers, and its omission of any comparable restriction for use of force in defense of property, this court is no longer free, as was the supreme court in Miller, to modify the law simply because we believe it is a good idea. Nor are we free to modify the law simply because we believe the legislature may have acted unwisely.

We may not simply assume that the legislature acted in ignorance in failing to include additional limitations in AS 11.81.-350(a). Absent compelling evidence to the contrary, we must presume that the legislature knew what it wanted and that its enactments accurately reflect its intent. Yet there is no indication here — let alone any compelling evidence — that the legislature’s failure to limit the defense of property statute was inadvertent or the product of misdirection or miscalculation.

The legislature was fully aware of Miller when it enacted the current statutory scheme. As pointed out in the majority opinion, the legislature initially declined to follow Miller, omitting restrictions both as to self-defense and defense of property. It ultimately elected to adopt Miller’s restrictions on self-defense. Had the legislature wanted to take the same course of action with respect to the right to use force in defense of property, it could have, and presumably would have done so.¹

The presumption that the legislature knew what it was doing in omitting any exception from the defense of property statute would be overcome if the omission were irrational. But it is not. The majority opinion suggests that it makes no sense to apply the Miller rationale to self-defense without extending it to the defense of property. In fact, however, the two defenses are different and have historically been accorded disparate treatment.

Professor LaFave, for example, discusses the modern trend toward restricting the use of force in self-defense against an officer making a peaceable but unlawful arrest. See W.R. LaFave & A.W. Scott, Substantive Criminal Law § 5.7(h), at 663 (1986). LaFave makes no mention of any trend to apply similar restrictions to the defense of property. See id. at § 5.9. See also P.H. Robinson, Criminal Law Defenses §§ 131(e) & 134 (1984) (to the same effect as LaFave). Similarly, the Model Penal Code provision on the use of force in self-protection explicitly provides that use of force is not justified against a peace officer. Model Penal Code § 3.04(2)(a)(i) (1962). The code’s provision on use of force for protection of property, however, while enumerating other limitations, contains no comparable prohibition. Id. at § 3.06(3).²

The majority opinion also suggests that, unless limited in the same way as the self-defense statute, the defense of property provision would necessarily undermine the rationale of Miller. This is simply incorrect.

Millet* s primary concern was the inherent potential for mutually escalating violence arising from the conflict between an officer’s right to use all force reasonably necessary to effect an arrest and the individual’s common law right to use all force reasonably necessary to defend against an unlawful arrest:

Because officers will normally overcome resistance with necessary force, the danger of escalating violence between the officer and the arrestee is great. What begins as an illegal misdemeanor arrest may culminate in serious bodily harm or death.

Miller, 462 P.2d at 426. No similar concern arises in the context of use of force to defend property.

To begin with, the right to use force in defense of property, as set forth in AS 11.81.350(a), has been carefully circumscribed: except in cases of arson and burglary, only nondeadly force may be used to defend property. This limitation in itself greatly reduces the potential that, in any given situation, violence might escalate to the point of death or serious bodily harm.

Even more significant is the relationship between the defense of property statute and the restriction against the use of force to defend against an unlawful arrest, as set forth in AS 11.81.400 — a relationship that the legislature was certainly aware of when it decided the extent to which a person could permissibly use force in defense of property. An officer who is authorized to seize the property of another person, or who reasonably believes that such authority exists, will always be empowered to order the other person to refrain from any act impeding the seizure. Upon the issuance of such an order,, the person would have a legal duty to obey. See AS 11.56.-720(a). Any resistance from the person that created a hazardous condition for the officer would provide grounds for an arrest for disorderly conduct, a class B misdemeanor. See AS 11.61.110(6). Resistance to the seizure by word or conduct that placed the officer in fear of imminent physical injury would provide grounds for arrest for the more serious misdemeanor of fourth-degree assault. AS 11.41.230(a)(3). Once placed under arrest, the person’s right to use any further force against the officer would immediately be extinguished under AS 11.81.400, regardless of whether the person believed the officer to be acting lawfully or unlawfully.

Thus, given the statutory restriction against use of force to defend against an unlawful arrest, police officers already have the ability to avoid the potential for the type of escalating violence that was the root of the court’s concern in Miller. The addition of similar restrictions to the defense of property provision is simply unnecessary to achieve this goal.

Jurco’s case provides an excellent illustration of the point. When Jurco resisted the seizure of his truck by conduct that Trooper Kallus believed created a hazardous condition, Kallus placed him under arrest for disorderly conduct. At that point, AS 11.81.400 cut off Jurco’s right to use any force against Kallus. Jurco’s decision to persist in his resistance subjected him to conviction for resisting arrest, regardless of the lawfulness or unlawfulness of Kal-lus’ efforts to seize Jurco’s property or to make the ensuing arrest.

The only realistic potential for escalating violence under these circumstances was the potential arising from Jurco’s decision to continue resisting Kallus’ attempt to arrest him. Yet this is precisely the same potential for violence that will exist in any situation in which a person chooses to act in defiance of the law. It has no connection to and could not be eliminated or reduced by redefining the right to defend property.

I do not mean to suggest that the defense of property statute, as currently written, is more desirable than it would have been had the legislature restricted it in the same way as it restricted the self-defense statute. My sole point is that the statute in its present form, without a judicially-engrafted exception, is not irrational. Because it is not irrational, it is the legisla1 ture’s prerogative, not this court’s, to decide whether it ought to be changed as a matter of public policy.

Since Jurco was given no defense of property instruction, I would reverse his disorderly conduct conviction.³

1 . The majority opinion suggests that the legislature may not have thought it necessary to enact a specific limitation to the defense of property provision because it believed that Miller modified the common law rule with regard to both self-defense and defense of property. The opinion posits that the legislature may have concluded that the courts, through application of the common law on a case-by-case basis, would preclude the use of force against police officers, both in cases of self-defense and defense of property. To explain why, under these circumstances, the legislature saw fit to adopt AS 11.-81.400, which expressly deals with use of force against an officer in self-defense, while neglecting any similar restriction as to defense of property, the majority theorizes that AS 11.81.400 was seen not as a limitation on the right to self-defense set out in AS 11.81.330 and .335, but rather as a necessary modification of the limitation on self-defense adopted as a matter of common law in Miller. Thus, in the majority's view, in enacting AS 11.81.350(a), the legislature meant to leave intact the limitation on defense of property applicable via the common law, as modified by the supreme court in Miller.

This theory is untenable. Miller did not purport to deal with defense of property. It addressed only the issue of self-defense. The case did not decide, consider, or even mention defense of property. Moreover, the majority’s theory ignores the basic nature of the current statutory scheme that defines use of force in self-defense, defense of property, and defense of others. The comprehensive nature of this legislation makes it apparent that the legislature meant to address this subject fully and did not merely intend to address specific issues not adequately covered by common law. In fact, if the majority view were correct in suggesting that the legislature was content with what it understood to be the common law rule of defense of property, as modified by Miller, then not only would it have been unnecessary to enact an exception to the common law rule, it would also have been unnecessary to enact the common law rule itself, which the legislature did in AS 11.81.350(a). For the legislature to have assumed, under these circumstances, that no statutory limits to the defense of property were needed because the courts could be counted on to apply Miller in defense of property cases would have evinced a virtually unprecedented degree of faith by the legislature in the judiciary.

2 . It is interesting to note, in this regard, that the supreme court of Connecticut has explicitly recognized and upheld an individual’s common law right to resist the unlawful police entry of a residence to make an arrest, even though the court acknowledged that, under state law, the individual was precluded from resisting the unlawful arrest itself. See State v. Gallagher, 191 Conn. 433, 465 A.2d 323, 328 (1983). The Connecticut Supreme Court’s willingness to give separate consideration and disparate treatment to self-defense and defense of property in this context hardly supports the conclusion that the Alaska legislature’s failure to adopt statutes treating the two defenses identically was irrational.

3 . I agree with the majority’s resolution of the remaining issues in this case.