State v. Davis

I respectfully dissent from the majority's decision because, in my view, the evidence was insufficient to convict Davis of obstructing official business in violation of R.C. 2921.31.

According to the testimony of the police, Davis was not charged with obstructing official business because he had resisted the officers' efforts to handcuff him. Rather, the officers testified that they had decided to charge Davis before the handcuffing because, by walking an extra distance after they had ordered him to stop, Davis was obstructing their effort to give him a ticket for jaywalking. As I see it, a conclusion that Davis's failure to stop sooner "hamper[ed] or impede[ed] a public official in the performance of his lawful duties" permits the law to reach beyond what is reasonable.

Discussing the scope of R.C. 2921.31 in State v. Stayton (1998),126 Ohio App. 3d 158, 164, 709 N.E.2d 1224, 1227, we said in language that is particularly appropriate here,

Certainly there is a level of hindrance which is simply too casual, remote or indirect to be punishable under the statute. Although entitled to full respect of the badge and uniform in the execution of his or her duty, a police officer is expected to tolerate a certain level of uncooperativeness, especially in a free society in which the citizenry is not obliged to be either blindly or silently obeisant to law enforcement. Interference with the police by citizens must, therefore, be necessarily viewed as a continuum along which, at a certain point, the line is crossed.

The reason that the arresting officers charged Davis with a violation of R.C. 2921.31 was not that he did not stop, but that he did not stop quickly enough. Significantly, one arresting officer acknowledged that when he first called out to Davis, "he [Davis] might not have heard me." When asked on cross-examination why the officers had arrested him, the officer testified, "By not stopping, as we were yelling for him to stop, by not stopping, by turning around and looking at us and keeping going, he was obstructing our official business * * *."

There is no requirement that citizens stop on a dime when beckoned by the police. The distance between Officer Cassidy's initial order to stop and the point where Davis actually did stop, turn around, and wait for the officers (a block or less) was insufficient to give rise to criminal conduct. Significantly, Davis, though he may have quickened his pace, never attempted to run. Davis's words to the police after he did stop were rude, disrespectful, and ill chosen, but they were within the orbit of speech that police officers must expect and tolerate in the course of their official duties. To criminalize this type of behavior suppresses a person's legitimate right to protest his or her detention, while threatening to impose a code of strict, if not absolute, obedience upon the citizenry when confronted by the police.

Significantly, the Third and Fourth Appellate Districts have held that actually fleeing from a request to stop does not "constitute the type of affirmative act required by the legislature to sustain a conviction for the specific offense of obstructing official business." See State v.Smith (Mar. 31, 2000), Allen App. No. 1-99-65, unreported (citing analogous decisions); State v. Gillenwater (Mar. 27, 1998), Highland App. No. 97CA0935, unreported. In Gillenwater, the court observed, "If the legislature had intended such conduct to constitute an offense, we believe that it would have enacted legislation to that effect, as it has with other flight situations and failure to comply with an officer's order." We need not reach this issue here, however, because Davis did not even flee from the request to stop; he merely took more time to stop than the police thought necessary. But it is noteworthy that even if Davis had turned and ran, according to the Third and Fourth Appellate Districts, he would not have been guilty of obstructing official business.

Admittedly, the situation escalated after Davis was (wrongly, in my view) charged with obstructing official business. I could perhaps agree with the majority if Davis's conviction arose out of his belligerent behavior following his decision to stop. My reading of the record, however, convinces me that Davis's arrest and conviction arose out of his failure to stop quickly enough to satisfy the officers' sense of their own authority. Such was not a crime. Accordingly, I would reverse and discharge Davis from further prosecution.