State v. McNally

314 April 20, 2017 No. 20
IN THE SUPREME COURT OF THE
STATE OF OREGON
STATE OF OREGON,
Respondent on Review,
v.
SEAN MICHAEL McNALLY,
Petitioner on Review.
(CC 111152528; CA A150977; SC S063644)
On review from the Court of Appeals.*
Argued and submitted May 10, 2016.
Andrew D. Robinson, Deputy Public Defender, Salem,
argued the cause and filed the briefs for the petitioner on
review. Also on the briefs was Ernest G. Lannet, Chief
Defender, Office of Public Defense Services.
Jamie K. Contreras, Assistant Attorney General, Salem,
argued the cause and filed the brief for the respondent on
review. Also on the brief were Ellen F. Rosenblum, Attorney
General, and Benjamin Gutman, Solicitor General.
Before Balmer, Chief Justice, and Kistler, Walters,
Landau, Brewer, and Flynn, Justices, and Baldwin, Senior
Justice pro tempore.**
BALMER, C. J.
The decision of the Court of Appeals is reversed in part
and affirmed in part. The case is remanded to the circuit
court for further proceedings.
KISTLER, J., concurred in the judgment and filed an
opinion in which Landau and Brewer, JJ. joined.
______________
**  Appeal from Multnomah County Circuit Court, Alicia A. Fuchs, Judge.
272 Or App 201, 353 P3d 1255 (2015)
**  Nakamoto, J., did not participate in the consideration or decision of this
case.
Cite as 361 Or 314 (2017) 315
Case Summary: After defendant refused to leave a bus station, a police officer
charged him with Interfering with a Peace Officer under ORS 162.247(1)(b). The
trial court later refused defendant’s request to instruct the jury that it should
find defendant not guilty of the crime of Interfering with a Peace Officer if it
found that he had engaged in passive resistance, and defendant was convicted of
the charge. The Court of Appeals affirmed that ruling. Held: The trial court erred
in refusing to give the jury defendant’s requested passive resistance instruction,
because there was evidence in the record that defendant engaged in inactive,
nonviolent noncooperation when the police officer ordered him to leave the bus
station, and that error was not harmless.
The decision of the Court of Appeals is reversed in part and affirmed in part.
The case is remanded to the circuit court for further proceedings.
316 State v. McNally
BALMER, C. J.
After defendant refused to comply with a police offi-
cer’s order to leave a bus station, the officer arrested him and
charged him with, among other things, the misdemeanor
offense of interfering with a peace officer. ORS 162.247(1)(b).
At defendant’s subsequent trial, defendant asked the trial
court to instruct the jury that it should acquit him of the
charge of interfering with a peace officer if it found that he
had engaged in passive resistance. See ORS 162.247(3)(b)
(providing that person who is engaging in “passive resis-
tance” does not commit crime of interfering with a peace
officer). The trial court refused to give that instruction, and
the jury found defendant guilty on all charged counts. On
defendant’s appeal, the Court of Appeals affirmed defen-
dant’s conviction for interfering with a peace officer, holding
that defendant had not been entitled to a passive resistance
instruction, because only someone who is performing specific
acts or techniques commonly associated with governmental
protest or civil disobedience can be said to be engaged in
“passive resistance.” State v. McNally, 272 Or App 201, 207,
353 P3d 1255 (2015).
We allowed defendant’s petition for review and now
hold that the phrase “passive resistance” refers to noncoop-
eration with a peace officer that does not involve violence
or other active conduct by the defendant. Accordingly, we
reverse the Court of Appeals’ decision affirming defendant’s
conviction for interfering with a peace officer and remand
the case to the trial court for further proceedings; we other-
wise affirm the decision of the Court of Appeals.
The relevant facts are not in dispute. Defendant
began arguing with a ticket agent at a Greyhound bus sta-
tion in Portland and the ticket agent asked defendant to
leave the station. When defendant refused, the ticket agent
called over a security guard, who also asked defendant to
leave. When defendant again refused, the security guard
called the police, and some time later, two officers arrived.
One of the officers told defendant to leave. Defendant tried
to describe his dispute with the ticket agent, but the police
officer picked up defendant’s belongings and carried them
outside. Defendant followed. When the officer repeated his
Cite as 361 Or 314 (2017) 317
order to defendant to leave, defendant continued to refuse,
insisting that the officer “couldn’t make him leave,” and he
continued to explain his situation.
The officers decided to arrest defendant. Rather
than inform defendant that he was under arrest, the officers
communicated with each other by means of a code number
that they intended to arrest him. When defendant’s atten-
tion was diverted, one officer placed defendant in a head-
lock. Defendant pulled away and the officer attempted to
regain physical control. The second officer joined the fray
and all three tumbled to the ground. Defendant was eventu-
ally handcuffed and arrested.
Defendant was charged with second-degree crim-
inal trespass, interfering with a peace officer, and resist-
ing arrest. At the ensuing jury trial, defendant contended
that he should be acquitted of the crime of interfering with
a peace officer because his refusal to leave the station con-
stituted “passive resistance.” See ORS 162.247(3)(b) (provid-
ing that person who is engaging in passive resistance does
not commit the crime of interfering with a peace officer).
Defendant asked the court for the following special instruc-
tion to the jury:
“If you find that [defendant] engaged in activity that would
constitute * * * passive resistance then you should find
[defendant] not guilty of Interfering with a Peace Officer.”
The trial court refused to give that instruction.1 Defendant
also had raised the defense of self-defense to the charge of
resisting arrest, and he asked the court for a special self-
defense jury instruction. See ORS 161.209 (providing that a
person may use “physical force upon another person for self-
defense * * * from what the person reasonably believes to be
the use or imminent use of unlawful physical force”). The
court also declined to give that requested special instruc-
tion. The jury found defendant guilty of all three charges.
Defendant appealed his convictions for interfer-
ing with a peace officer and for resisting arrest, assigning
error in each instance to the trial court’s failure to give the
1
Defendant did not offer an instruction that defined the term “passive
resistance.”
318 State v. McNally
requested special instruction. The Court of Appeals agreed
with defendant that the trial court erred in failing to give
the requested self-defense instruction on the resisting arrest
charge and that that error was not harmless. Accordingly,
the Court of Appeals reversed defendant’s conviction for
resisting arrest. McNally, 272 Or App at 209-10. Neither
party challenges that result in this court.
With respect to defendant’s contention that the trial
court erred in failing to give the jury his proposed special
instruction stating that a person does not commit the offense
of interfering with a peace officer if the person is engag-
ing in passive resistance, the state conceded error in the
Court of Appeals. The Court of Appeals, however, rejected
that concession. Id. at 207. The court stated that, under its
then-recent decision in State v. Patnesky, 265 Or App 356,
335 P3d 331 (2014), the phrase “passive resistance” in ORS
162.247(3)(b) applies only to “specific acts or techniques
that are commonly associated with governmental protest
or civil disobedience.” McNally, 272 Or App at 207 (quoting
Patnesky, 265 Or App at 366).2 The court then held that
“there was no evidence from which the jury could find that
defendant was engaged in an act or technique that is asso-
ciated with government protest or civil disobedience[,] * * *
[and e]ven assuming that the jury credited defendant’s
version of the events, nothing suggests that defendant was
engaging in a non-cooperative technique or act known to
be used to protest government action. Therefore, the trial
court correctly refused to give defendant’s proposed pas-
sive-resistance instruction.”
McNally, 272 Or App at 207.
On review, defendant argues that he was entitled
to the passive resistance instruction because the term “pas-
sive resistance” in ORS 162.247(3)(b) refers to any interfer-
ence or disobedience that is not physical or active; a political
motive is not required, nor is the term limited to specific
“acts” or “techniques.” Alternatively, defendant argues that,
2
The Court of Appeals in Patnesky also stated that, to be “engaging in * * *
passive resistance” for purposes of ORS 162.247 a person must take “purposeful,
deliberate, planned, or coordinated action that represents something more than
the mere refusal to obey a particular order during a particular police encounter.”
Patnesky, 265 Or App at 362 n 3.
Cite as 361 Or 314 (2017) 319
even if passive resistance must be part of a political pro-
test, the evidence in this case supported the passive resis-
tance instruction. Defendant notes that he told the police
officer that the officer “couldn’t make him leave,” and that
he testified at trial that he viewed the police officer’s order
to leave the bus station as a “huge injustice”; therefore, he
argues, viewing the evidence in the light most favorable to
him, a reasonable juror could have concluded that defendant
refused to obey the order to leave the bus station at least in
part as a political protest against that injustice.3
In its response in this court, the state raises a new
and novel interpretation of the phrase “passive resistance.”
The state now contends that the legislature intended a defi-
nition of passive resistance that is more restrictive than
the one that the Court of Appeals identified. According to
the state, the scope of the passive resistance exception in
ORS 162.247 is limited to passive resistance to an arrest.
The state asserts that the legislative history of ORS 162.247
shows that the legislature did not intend for the exception
to apply at all in situations when a person passively refuses
to obey a lawful order that does not involve an arrest. Thus,
because defendant refused to obey an order that did not
involve an arrest—the arrest in this case took place later—
the state contends that defendant was not entitled to the
passive resistance instruction.
The state also offers an alternative argument that
nods at the Court of Appeals’ analysis but, ultimately, again
3
We note that defendant characterizes the question presented as whether
passive resistance must be “politically motivated.” However, neither the Court of
Appeals nor the state clearly takes the position that passive resistance, for pur-
poses of ORS 162.247(3)(b), requires a distinct political motivation. In Patnesky,
the Court of Appeals adverted to that interpretation, stating that what the leg-
islature “had in mind to protect [were] refusals to move or to stand when an
individual is engaging in governmental protest or civil disobedience—an under-
standing in accord with the term’s common meaning.” Patnesky, 265 Or App at
365. Elsewhere in Patnesky, however, and in the Court of Appeals’ decision in
this case, as discussed in the text, the court focused on conduct, rather than
motivation, interpreting “passive resistance” to mean ‘specific acts or techniques
that are commonly associated with governmental protest or civil disobedience,’
McNally, 272 Or App at 207 (emphasis added; quoting Patnesky, 265 Or App at
366) (emphasis added). The state’s (alternative) position in this court is that,
although the term arises out of “the civil-rights context,” it refers generally to “a
refusal to comply [with a lawful order] that is deliberate, open, and motivated by
conscience or principle.”
320 State v. McNally
concedes error. The state asserts that, assuming for pur-
poses of argument that the passive resistance exception
applies in non-arrest situations, the Court of Appeals was
correct that “passive resistance” means more than merely
non-physical interference or disobedience. However, the
state goes on, rather than requiring the existence of “spe-
cific acts or techniques that are commonly associated with
civil disobedience,” “passive resistance” means a refusal to
comply that is deliberate, open, and motivated by conscience
or principle. The state thus agrees with defendant that (if
the passive resistance exception applies in non-arrest situ-
ations) the trial court erred in refusing to give defendant’s
proposed special instruction, because there was some evi-
dence in the record that defendant’s refusal to comply with
the officer’s order was motivated by principle, pointing to
defendant’s trial testimony that the order was an “injustice.”
This court reviews a trial court’s refusal to give a
requested jury instruction for errors of law. State v. Reyes-
Camarena, 330 Or 431, 441, 7 P3d 522 (2000). A criminal
defendant is entitled to have the jury instructed in accor-
dance with his or her theory of the case if the instruction
correctly states the law and there is evidence to support giv-
ing it. State v. Simonov, 358 Or 531, 533, 368 P3d 11 (2016).
Defendant was charged with interfering with a
peace officer under ORS 162.247(1)(b), for refusing to obey
the police officer’s lawful order to leave the bus station. ORS
162.247 provides:
“(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:
“(a)  Intentionally acts in a manner that prevents, or
attempts to prevent, a peace officer or parole and probation
officer from performing the lawful duties of the officer with
regards to another person; or
“(b)  Refuses to obey a lawful order by the peace officer
or parole and probation officer.
“* * * * *
“(3)  This section does not apply in situations in which
the person is engaging in:
Cite as 361 Or 314 (2017) 321
“(a)  Activity that would constitute resisting arrest
under ORS 162.315; or
“(b)  Passive resistance.”
Defendant’s theory of the case is that he is not guilty
of the crime of interfering with a peace officer because, in
refusing to obey the officer’s order, he was engaged in pas-
sive resistance. Defendant’s proposed special instruction on
the passive resistance exception to the offense of interfering
with a peace officer was in accordance with that theory of
the case. Moreover, there is no dispute that the proposed
instruction was consistent with ORS 162.247 and, therefore,
was a correct statement of the law. Thus, the only question
presented is whether there was some evidence in the record
to support giving that instruction. And the answer to that
question depends on what it means to be engaged in “pas-
sive resistance” under ORS 162.247(3)(b).
Our task in interpreting the meaning of the phrase
“passive resistance” in the statute is to discern the legisla-
ture’s intent in drafting ORS 162.247, looking primarily to
the statute’s text, context, and legislative history. State v.
Gaines, 346 Or 160, 171-72, 206 P3d 1042 (2009). We begin
with the text of the statute, because the words that the leg-
islature uses in a statute are the most persuasive evidence
of the legislature’s wishes. Alfieri v. Solomon, 358 Or 383,
392, 365 P3d 99 (2015).
The phrase “passive resistance” is not defined in
ORS 162.247 or elsewhere in the statutes. In such a cir-
cumstance, we first consider the “plain, natural, and ordi-
nary” meaning of the phrase. DCBS v. Muliro, 359 Or 736,
745-46, 380 P3d 270 (2016) (when legislature has not defined
a phrase, court assumes, at least initially, that the word or
phrase has its plain, natural, and ordinary meaning); State
v. Walker, 356 Or 4, 14, 333 P3d 316 (2014) (because term
was not defined in statute, court considered its ordinary
meaning). As the court explained in Muliro, to understand
the “plain, natural and ordinary meaning” of a phrase, the
court “frequently consult[s] dictionary definitions of the
terms, on the assumption that, if the legislature did not give
the term a specialized definition, the dictionary definition
reflects the meaning that the legislature would naturally
322 State v. McNally
have intended.” 359 Or at 746. When the phrase is a term of
art, drawn from a specialized field, courts “look to the mean-
ing and usage of those terms in the discipline from which
the legislature borrowed them.” Comcast Corp. v. Dept. of
Rev., 356 Or 282, 296, 337 P3d 768 (2014). And, specifically,
when the phrase is a legal term of art, courts turn to legal
dictionaries to understand the established legal meaning.
Id.; Muliro, 359 Or at 746.
The phrase “passive resistance” is a term of art that
has the same meaning whether considered in a lay or a legal
context. For example, Webster’s Third New International
Dictionary defines “passive resistance” as follows:
“resistance (as to a government or an occupying power)
that does not resort to violence or active measures of
opposition but depends mainly on techniques and acts of
noncooperation.”
Webster’s Third New Int’l Dictionary 1651 (unabridged ed
2002). Black’s Law Dictionary defines the phrase similarly:
“[o]pposition by noncooperation; specif., a method of pro-
testing something, esp. a government, by refusing to coop-
erate while using no violence.”
Black’s Law Dictionary 1299 (10th ed 2014).4 Under both
of those definitions, passive resistance is opposition to an
exertion of a government or occupying power—a refusal
to cooperate with that government or occupying power—
without use of violence or active conduct. Although the defi-
nition in Black’s provides, as an example, “a method of pro-
testing something,” neither definition requires a specific
political purpose. Rather, both dictionaries support a poten-
tially broader interpretation of “passive resistance” as, sim-
ply, resistance or “refus[al] to cooperate” with a government
power that does not involve violence or active measures.
Similarly, although those dictionaries mention
“techniques and acts” and “methods” as illustrations of the
means by which a person may engage in passive “resistance”
or “noncooperation,” the focus of the definition is on those
4
The edition of Black’s that was published in 1999, the year that the relevant
statutory wording was adopted, did not define the phrase “passive resistance.”
Black’s Law Dictionary (7th ed 1999).
Cite as 361 Or 314 (2017) 323
ends. Thus, 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. 5
That said, there is some tension inherent in the
phrase “passive resistance,” in that the word “passive” con-
notes “not active” or “unresisting,” see Websters at 1651,
while at least some definitions of the word “resistance”
include activity or engagement. See id. at 1932 (defining
“resist” to mean “to exert oneself to counteract or defeat
: strive against : OPPOSE”) Thus, it is not entirely clear
from the text of ORS 162.247(3) whether every instance of
noncompliance or noncooperation with the lawful order of
a peace officer may constitute “passive resistance,” and we
return to that question below.
In Patnesky, the Court of Appeals held that the term
“passive resistance” describes a narrower range of behavior
than we tentatively have identified. The court first noted,
as we have, that Webster’s defines “passive resistance” as
resistance that depends mainly on “techniques and acts
of noncooperation.” 265 Or App at 360. It then turned to
Webster’s for the definition of “noncooperation”—a word
that does not appear in ORS 161.247. Although Webster’s
defines “noncooperation” generally as a “failure or refusal
to cooperate,” the court focused not on that general defini-
tion but on an example used to illustrate the definition: the
“ ‘refusal through civil disobedience * * * of a people to coop-
erate with the government of a country—used esp. of the
policy of Gandhi and his followers in India.’ ” Id. at 360-61
(quoting Webster’s at 1536).6 From there, the court turned
5
Defendant argues that we should not interpret the compound noun “passive
resistance” itself, but rather should consider separately the dictionary definitions
of the words “passive” and “resistance.” The legislative history, discussed below,
indicates that the legislature used the two words as a single term. Even consid-
ering the words separately, however, as we do shortly, leads to a definition that
is similar to that of the term “passive resistance.” Nothing in those definitions
suggests that passive resistance must be part of a political protest or is limited to
specific methods associated with civil disobedience.
6
Interestingly, the first definition of “noncooperation” in Black’s does not
import any notion of political protest or civil disobedience. Rather, it is simply
“[t]he refusal to work with someone else to achieve some mutually beneficial
result or to do as someone else requests.” Black’s Law Dictionary at 1214.
324 State v. McNally
to the Webster’s definition of another term that does not
appear in the statute, “civil disobedience,” which, the court
observed, includes a political element.7 265 Or App at 361.
Although the Court of Appeals did not go so far as to
state that “passive resistance” requires a showing that the
defendant was engaged in a political protest, it limited the
reach of that term to “acts and techniques commonly asso-
ciated with governmental protest or civil disobedience,” id.,
at least suggesting that the exception in ORS 162.247(3)(b)
might be available only in the context of a political protest.8
Certainly, aspects of the dictionary definitions and the
common understanding of “passive resistance” support the
notion that the legislature intended the exception to apply
when a person’s conduct and motivation bear the hallmarks
of classic acts of civil disobedience, such as sit-in demonstra-
tions in support of civil rights. But the question is whether
the term is limited to such conduct and motivation. As dis-
cussed above, the term “passive resistance” is at least capa-
ble of an interpretation that includes conduct in addition to
“acts and techniques” commonly associated with civil dis-
obedience and motivations in addition to explicitly political
protest. To determine whether we should adopt that more
expansive interpretation, we must look beyond the statutory
text.
To that end, we note that dictionaries do not tell
the whole story of statutory interpretation. State v. Cloutier,
351 Or 68, 96, 261 P3d 1234 (2011) (court does not interpret
statutes solely on the basis of dictionary definitions); State
v. Glushko/Little, 351 Or 297, 311, 266 P3d 50 (2011) (stat-
utes are not interpreted by culling dictionaries for favorable
7
Webster’s defines “civil disobedience” as the “refusal to obey the demands
or commands of the government esp. as a nonviolent collective means of forcing
concessions from the government.” Id. at 413. We note that the “refusal to obey
the demands or commands of the government” does not by itself convey a polit-
ical element (except to the extent that than every refusal to obey a government
demand might be considered “political”). An inference of political motivation may
only be found in the example given—”esp. as a nonviolent collective means of
forcing concessions from the government.”
8
Moreover, as noted previously, 361 Or at 319 n 3, after considering the legis-
lative history, the court stated in Patnesky, that the legislature intended “passive
resistance” to refer to “refusals to move or to stand when an individual is engag-
ing in governmental protest or civil disobedience.” 265 Or App at 365.
Cite as 361 Or 314 (2017) 325
definitions). Rather, context and legislative history also
inform our view of the meaning of the words used. Gaines,
346 Or at 171-72. Context includes both related statutes and
earlier versions of the statute at issue. State v. Klein, 352 Or
302, 309, 283 P3d 350 (2012) (a statute’s context includes
related statutes); State v. Bailey, 346 Or 551, 561, 213 P3d
1240 (2009) (relying on closely related statute as context);
State v. Ziska/Garza, 355 Or 799, 806, 334 P3d 964 (2104)
(analysis of the context of a statute may include prior ver-
sions of the statute). In this case, context includes a related
statute, ORS 162.315, which defines the crime of resisting
arrest and also uses the phrase “passive resistance.” Context
also includes earlier versions of ORS 162.247.
The state contends that, as the Court of Appeals
held, context and legislative history show that the legisla-
ture intended the phrase “passive resistance” to have a more
specific meaning than the dictionaries provide. In the state’s
primary argument, it contends that context and legislative
history show that the phrase “passive resistance” is limited
to passive resistance to arrest. The Court of Appeals, relying
on its earlier decision in Patnesky, concluded that essentially
the same context and legislative history show that “passive
resistance” means “specific acts or techniques that are com-
monly associated with government protest or civil disobedi-
ence.” McNally, 272 Or App at 207 (quoting Patnesky, 265 Or
App at 366). As we will explain, both of those analyses miss
the mark. We start with the state’s preferred interpretation
of the statute.
The state’s argument can be summarized as fol-
lows: the phrase “passive resistance” in the resisting arrest
statute, ORS 162.315, refers only to passive resistance to
arrest, and the legislature intended that phrase to have the
same meaning in ORS 162.247. ORS 162.315 provides:
“(1)  A person commits the crime of resisting arrest if
the person intentionally resists a person known by the per-
son to be a peace officer or parole and probation officer in
making an arrest.
(2)  As used in this section:
“* * * * *
326 State v. McNally
“(c)  ‘Resists’ means the use or threatened use of vio-
lence, physical force or any other means that creates a sub-
stantial risk of physical injury to any person and includes,
but is not limited to, behavior clearly intended to prevent
being taken into custody by overcoming the actions of the
arresting officer. The behavior does not have to result in
actual physical injury to an officer. Passive resistance does
not constitute behavior intended to prevent being taken into
custody.”
(Emphasis added.)
The state begins by observing that a person “resists”
arrest under ORS 162.315 when he or she intentionally
engages in any activity during the course of an arrest that
creates a substantial risk of injury to any person, but not
when the person is engaging in “passive resistance.” The
state then points out that that definition of “resists” in ORS
162.315 was in effect in 1997, when the legislature origi-
nally criminalized interfering with a peace officer by enact-
ing ORS 162.247. The state acknowledges that, in its first
iteration in 1997, the prohibition on interfering with a peace
officer did not use either the phrase “passive resistance” or
“resisting arrest.” Rather, the statute provided that “[t]his
section does not apply in situations in which a peace offi-
cer is making an arrest.” ORS 162.247 (1997). As the state
explains, in enacting that version of ORS 162.247, the legis-
lature was concerned with ensuring that a person could not
be charged with both resisting arrest and interfering with
a peace officer based on the same conduct. Tape Recording,
Senate Committee on Judiciary, Subcommittee on Crime
and Corrections, SB 423, Feb. 19, 1997, Tape 13, Side A
(statement of Rep. Floyd Prozanski). However, the exception
for “situations in which a peace officer is making an arrest”
proved too broad in practice to accomplish that goal. Tape
Recording, House Committee on Judiciary, Subcommittee
on Criminal Law, HB 3374, May 4, 1999, Tape 178, Side B
(statement of counsel John Horton) (so stating). Therefore,
two years later, the legislature proposed an amendment to
ORS 162.247—HB 3374—that eliminated that wording and
inserted in its place a provision that ORS 162.247 would
not apply “in situations in which the person is engaging
in activity that would constitute resisting arrest under
Cite as 361 Or 314 (2017) 327
ORS 162.315.” Exhibit P, House Committee on Judiciary,
Subcommittee on Criminal Law, HB 3374, May 4, 1999.
Thus, as originally proposed, HB 3374 clarified that
ORS 162.247 could not be used to charge an individual with
interfering with a peace officer, if the individual was being
charged with resisting arrest based on the same conduct.
However, that version of HB 3374 did not include an express
exception for passive resistance. The reference to passive
resistance was added in a later amendment to HB 3374.
Exhibit G, House Committee on Judiciary, Subcommittee
on Criminal Law, HB 3374, May 6, 1999 (adding second
exemption, for “passive resistance”). As the bill’s sponsor,
Representative Floyd Prozanski, explained,
“[T]he intent of all this previous legislation including
resisting arrest, was that if someone was passively resist-
ing they would not be, let’s say, subject to a charge of either
resisting arrest, and it’s always been intended that they
not be subject to a charge for interfering with a peace offi-
cer. And this basically clarifies that if someone is passively
resisting, such as in a protest situation, they would not be
subject to this law. Specifically, as if an officer asks them
or orders them to stand up to be arrested, that could be
interpreted as a refusal to obey a lawful order of an officer.
And since this was supposed to protect the safeguards of
the individuals that are peacefully, without any violence,
protesting, that they would not be held accountable as long
as it was only passive resistance.”
Tape Recording, House Committee on Judiciary, Subcom-
mittee on Criminal Law, HB 3374, May 6, 1999, Tape 185,
Side B (statement of Rep. Floyd Prozanski).9 As the state
characterizes the foregoing statement, the amendments to
ORS 162.247 were intended to exempt not only activity that
was punishable under the resisting arrest statute, but also
activity that was not punishable under that statute because
it fell within the passive resistance exception in ORS
9
During committee hearings in 1999, Representatives Prozanski and
Mannix both discussed at various times the meaning of “passive resistance” in
terms of the intent behind legislation adopted in 1997. Ordinarily, of course, “a
legislator’s views on the meaning of existing law are of little, if any, probative
value.” Brown v. SAIF, 361 Or 241, 269, ___ P3d ___ (2017). Here, however, that
discussion is relevant because it informs their intent in using that term in the bill
before the committee that was enacted into law in 1999.
328 State v. McNally
162.315. According to the state, the original version of ORS
162.247, the legislative history of the amendments to that
statute, and the related crime of resisting arrest together
show that the legislature added the passive resistance
exception to ORS 162.247 to ensure only that a person who
passively resists an arrest would not be prosecuted for inter-
fering with a peace officer for that conduct. Thus, the state
continues, because defendant was not under arrest when he
refused to comply with the police officer’s lawful order to
leave the bus station, it follows that the passive resistance
exception in ORS 162.247 did not apply to him.
The state’s argument fails for several reasons. First,
as the state has conceded, the text of ORS 162.247 does not
expressly provide that passive resistance is limited to arrest
situations. It is axiomatic that this court does not insert
words into a statute that the legislature chose not to include.
See ORS 174.010 (“In the construction of a statute, the office
of the judge is simply to ascertain and declare what is, in
terms or in substance, contained therein, not to insert what
has been omitted, or to omit what has been inserted[.]”).
Second, the state’s argument relies on a faulty
assumption. That is, the state’s unspoken premise is that
the meaning of the phrase “passive resistance” in ORS
162.315—the resisting arrest statute—is necessarily lim-
ited to passive resistance to arrest and not to resistance to
other kinds of government authority. However, the resisting
arrest statute, like ORS 162.247, does not define the phrase
“passive resistance.” And, as we have stated, the “plain,
natural, and ordinary” meaning of the phrase “passive
resistance” is broader, connoting noncooperation with a gov-
ernment power without use of violence or active measures;
nothing in the term suggests that it is limited to arrest
situations. To be sure, in the context of the statute defin-
ing the crime of resisting arrest, ORS 162.315, the passive
resistance exception, whatever else it might mean, plainly
applies to passive resistance to arrest. But there is nothing
in the text or context of the resisting arrest statute to sug-
gest that the legislature intended to confine the meaning
of the phrase “passive resistance” for all purposes, includ-
ing interfering with a peace officer, to passive resistance to
arrest.
Cite as 361 Or 314 (2017) 329
In fact, the context of the phrase “passive resis-
tance” in the resisting arrest statute—in the paragraph
defining “resists”—suggests the opposite. To repeat, ORS
162.315(2)(c) provides,
“ ‘Resists’ means the use or threatened use of violence,
physical force or any other means that creates a substantial
risk of physical injury to any person and includes, but is not
limited to, behavior clearly intended to prevent being taken
into custody by overcoming the actions of the arresting offi-
cer. The behavior does not have to result in actual physical
injury to an officer. Passive resistance does not constitute
behavior intended to prevent being taken into custody.”
As the italicized wording provides, under that defini-
tion, “resistance”—the noun form of the word “resists”—
“includes, but is not limited to, behavior clearly intended to
prevent being taken into custody by overcoming the actions
of the arresting officer.” That is, even under ORS 162.315,
“resistance” is not limited to arrest situations. And nothing
in the resisting arrest statute as a whole suggests that the
legislature intended the phrase “passive resistance” in that
paragraph to be construed more narrowly.
Third, although the legislative history of the
amendments to ORS 162.247 shows that Representative
Prozanski understood that the passive resistance excep-
tion in ORS 162.247 would apply to a person who passively
resists arrest, the state has pointed to nothing in the legis-
lative history that suggests that that exception would apply
only when the person passively resisting was under arrest.
In fact, Representative Prozanski testified on another occa-
sion that the legislature’s intention behind the amendments
to ORS 162.247 was simply to ensure that peaceful protes-
tors were not exposed to arrest for interfering with a peace
officer:
“I wanted to make certain that the law itself, that the
crime of interfering, would not include a passive civil dis-
obedience protestor. So if an order comes in to move, they’re
not going to be cited for this particular crime.”
Tape Recording, House Committee on Judiciary, Subcom-
mittee on Criminal Law, HB 3374, May 4, 1999, Tape 179,
Side B (statement of Rep. Floyd Prozanski). Similarly,
330 State v. McNally
Representative Kevin Mannix explained the legislative
intention behind the amendments as follows:
“[W]e were trying to respect what I call the traditional civil
rights passive resistance when you just say, ‘we’re protest-
ing, and will not move.’ ”
Tape Recording, House Committee on Judiciary, Subcom-
mittee on Criminal Law, HB 3374, May 4, 1999, Tape 179,
Side B (statement of Rep. Kevin Mannix). For all of the fore-
going reasons, we have no trouble rejecting the state’s inter-
pretation of the phrase “passive resistance” in ORS 162.247
as applying only to passive resistance to arrest.
We return to the Court of Appeals’ interpretation.
As we have stated, the Court of Appeals held that “passive
resistance” refers only to “specific acts or techniques that are
commonly associated with governmental protest or civil dis-
obedience.” McNally, 272 Or App at 207 (quoting Patnesky,
265 Or App at 366). The court based that conclusion on two
factors, neither of which ultimately is persuasive.
First, as we have already discussed, we disagree
with the Court of Appeals that the ordinary meaning of
“passive resistance” requires consideration of particular
“acts or techniques of noncooperation.” The court took that
phrase from the Webster’s definition of “passive resistance”
as “resistance (as to a government or an occupying power)
that does not resort to violence or active measures of oppo-
sition but depends mainly on techniques and acts of non-
cooperation.” Webster’s at 1651. The words “techniques and
acts of noncooperation” themselves, however, are very broad,
and would apply to virtually any conduct through which a
person demonstrates noncooperation. It almost goes with-
out saying that the passive refusal to comply with a lawful
order from a peace officer itself is a classic example of an
“act” or “technique” commonly associated with civil disobe-
dience. Moreover, the focus on “acts” and “techniques” gives
insufficient weight to the central aspect of the definition—
“resistance * * * that does not resort to violence or other mea-
sures of opposition.” Similarly, in emphasizing the references
to particular “methods” in the dictionary definitions of “pas-
sive resistance,” the Court of Appeals loses sight of the core
concept of “opposition by noncooperation.” The court’s focus
Cite as 361 Or 314 (2017) 331
on particular “acts,” “techniques” and “methods,” therefore,
provides limited assistance in understanding the meaning of
“passive resistance,” the dictionary definitions of which turn
on conduct that constitutes “resistance” or “noncooperation.”
Second, the Court of Appeals found that the legis-
lative history contains “clear declarations from legislators
during [ORS 162.247’s] enactment that what they had in
mind to protect are refusals to move or to stand when an
individual is engaging in governmental protest or civil dis-
obedience.” Patnesky, 265 Or App at 365 (emphasis added).
It is true that the legislative history of the amendments to
ORS 162.247 is replete with statements indicating the legis-
lature’s interest in ensuring that nonviolent political protes-
tors would not be punished under ORS 162.247. The opinion
in Patnesky contains the following examples from the House
Judiciary Committee discussion of the reasons for the 1999
amendments to ORS 162.247:
“ ‘In my community there are a lot of people that want to
have passive resistance under the MLK approach or the
Gandhi approach of just basically being there as a pres-
ence but not doing anything physically in the way of waving
arms or swinging stuff. * * * That’s the other reason that I
wanted to make certain that the crime of interfering would
not include a passive civil disobedience protestor. So if an
order comes in to move, they’re not going to be cited for this
particular crime.’
“Tape Recording, House Judiciary Committee, HB
3374, May 4, 1999, Tape [179], Side B (statement of Rep
Prozanski). In response to an inquiry by Representative Jo
Ann Bowman about whether civil disobedience would still
be protected under the amendment, Committee Chair and
Representative Kevin Mannix replied:
“ ‘So if you were lying down and officers had to pick you up,
that was okay. On the other hand, if they were trying to
pick you up and you started swinging at them or whatever,
doing something physically * * * that that became at least
interference if not resistance, but you had to be doing some-
thing physically to resist or to interfere, but, just being pas-
sive was not. Because we were trying to respect what I call
the traditional civil rights. Passive resistance when you
just say, ‘we’re protesting, and we will not move.’
332 State v. McNally
“Tape Recording, House Judiciary Committee, HB 3374,
May 4, 1999, Tape [179], Side B (statement of Chair
Mannix). Prozanski added:
“ ‘This is where we would be holding someone accountable
for interfering with a peace officer and the intent of all the
previous legislation including resisting arrest that if some-
one was passively resisting they would not be subject to
a charge of either resisting arrest or and it’s always been
intended that they would not be subject to a charge of inter-
fering with a peace officer and this basically clarifies that if
someone is passively resisting such as in a protest situation
they would not be subject to this law, specifically if an offi-
cer asked them or ordered them to stand up to be arrested.
That could be interpreted as refusal to obey a lawful order
of an officer and since this was supposed to protect the safe-
guards of the individuals that are peacefully without any
violence protesting that they would not be held accountable
so long as it was only passive resistance.’
“Tape Recording, House Judiciary Committee, HB
3374, May 6, 1999, Tape [185], Side B (statement of Rep
Prozanski).”
Patnesky, 265 Or App at 364–65 (internal quotation marks
omitted).
However, as this court has stated, the fact that
the legislature had a specific concern in mind in enacting
legislation does not mean that the legislature necessarily
intended the legislation to address only that concern:
“What the legislature ‘had in mind,’ however, often is not
realistically the right question. Statutes ordinarily are
drafted in order to address some known or identifiable
problem, but the chosen solution may not always be nar-
rowly confined to the precise problem. The legislature may
and often does choose broader language that applies to a
wider range of circumstances than the precise problem
that triggered legislative attention. * * * When the express
terms of a statute indicate such broader coverage, it is not
necessary to show that this was its conscious purpose.”
South Beach Marina, Inc. v. Dept. of Rev., 301 Or 524, 531,
724 P2d 788, 792 (1986). See also Hamilton v. Paynter, 342
Or 48, 55, 149 P3d 131 (2006) (legislative history of statute
spoke only of problem as it related to insurers, but statutory
Cite as 361 Or 314 (2017) 333
text—which used the word “person”—showed that, even if
the legislature only had that particular problem of insur-
ers in mind, it chose to use broader solution); Clackamas
County v. 102 Marijuana Plants, 323 Or 680, 688, 920 P2d
149 (1996) (upholding broad interpretation of statutory
wording notwithstanding legislative “findings” in first sec-
tion of statute indicating that legislature intended narrower
scope; those findings were reasons to vote for bill, but were
not stated to be limits on the broader wording actually used
in the operative section of the statute).
In this case, although the legislative history of
the amendments to ORS 162.247 shows that those amend-
ments were enacted with the objective of protecting people
engaged in some kind of civil disobedience from arrest for
interfering with a peace officer, the legislative history does
not suggest that the legislature intended the phrase “pas-
sive resistance” to apply only in a political protest situation.
And, importantly, nothing in the legislative history suggests
that only a person who is performing certain “acts” or using
certain “techniques” commonly associated with governmen-
tal protests or civil disobedience can be said to be engaging
in “passive resistance” under ORS 162.247.
Defendant acknowledges that the legislative record
does contain one piece of evidence that might support the
notion that the legislature intended a narrower interpre-
tation of the phrase “passive resistance.” The Senate staff
measure summary of HB 3374 provides that “the ‘passive
resistance’ exception to the Interfering with a Police [sic]
Officer statute is intended to be narrowly construed as refer-
ring to situations where there is organized civil disobedi-
ence or civil protest, and/or passive resistance to an arrest.”
Staff Measure Summary, Senate Committee on Judiciary,
HB 3374C, July 6, 1999 (emphasis added). We do not find
that statement dispositive. The legislative history reveals
that there were no discussions in the Senate about the
amendments to ORS 162.247 before that measure summary
was entered into the record. At most, therefore, the mea-
sure summary expresses the understanding of the author
of that document. It is only one comment in a much larger
body of commentary by legislators, a body of commentary
334 State v. McNally
that otherwise does not suggest any limitation of the statute
to “organized” protests. And even if the Senate Judiciary
Committee actually intended to limit the applicability of the
exception to “organized” political protest, that limitation is
inconsistent with the wording of the exception. Moreover,
it would not protect individuals or indeed anyone sponta-
neously resisting what he or she perceives as injustice, and
thus would be of doubtful constitutionality, insofar as it
would subject a significant subset of nonviolent political pro-
test to criminal liability.
To summarize, although the term “passive resis-
tance” in ORS 162.247(3)(b) may be susceptible to different
readings, our review of the statute and its context leads us
to conclude that that phrase refers to noncooperation with a
peace officer’s lawful order that does not involve violence or
active measures, whatever the motivation for the noncoop-
eration and regardless of whether the noncooperation takes
the form of acts, techniques, or methods commonly associ-
ated with civil rights or other organized protest.
The state, in its alternative argument, asserts that,
even if an organized political protest or a strictly political
motive is not required, the legislature had to have intended
“passive resistance” to mean more than the mere nonviolent
refusal to comply with a lawful order, because, the state con-
tends, defining the exception that way “would largely elim-
inate the crime of interfering with a peace officer by refus-
ing to comply with a lawful order.” According to the state,
“[t]ypically, a person refuses to comply with an order ver-
bally, or by refusing to act. * * * Thus, the exception would
largely swallow the rule.”10 Because the state views it
unlikely that the legislature intended that result, the state
examines the legislative history for an alternative inter-
pretation. After discussing references in the legislative his-
tory to “civil disobedience” and one legislator’s mention of
“passive resistance under the MLK approach or the Gandhi
approach,” the state concludes that the legislature intended
“passive resistance” to mean an “intentional violation of the
10
The Court of Appeals made the same point in Patnesky: “Defendant’s pos-
ited definition of passive resistance * * * would, if not swallow whole the prohibi-
tion of refusing to comply with a peace officer’s lawful order, render it ineffectual
to an extent not contemplated by the legislature.” Patnesky, 265 Or App at 365.
Cite as 361 Or 314 (2017) 335
law that is inactive in nature, public, and motivated by rea-
sons of principle or conscience.” The concurring opinion gen-
erally parallels the state’s argument, although it eschews
the state’s proposed focus on motivations of “principle or
conscience,” and would require instead that the reason for
the passive noncooperation be “to express a position on a
governmental or other policy choice.” 361 Or ___ (Kistler, J.,
concurring in the judgment).
As an initial matter, we cannot accept the state’s
premise regarding the effect of rejecting its proposed inter-
pretation of “passive resistance.” While, at first blush, it
might seem intuitively true that “passive” refusals to obey
orders are more typical than “active” refusals, we have not
been presented with any evidence that that is actually the
case. And even if statistics bore out that impression, it would
not prove that the legislature cannot have intended “passive
resistance” to have a broader meaning. There are plenty of
instances in the criminal code in which the legislature crim-
inalizes certain behavior while exempting the vast majority
of people engaged in that behavior from criminal liability.
To take just one example, the criminal code criminalizes
possession of a controlled substance, but exempts from crim-
inal liability anyone who has a valid prescription for the con-
trolled substance. ORS 475.752(3). Perhaps the majority of
refusals to obey a lawful order of a peace office are in fact
passive, but it also is not difficult to conceive of scenarios
in which a person actively, physically, refuses to obey. For
example, 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 resistance.
This is not, then, a situation in which our construc-
tion violates the interpretive imperative in ORS 174.010 to
“give effect to all” provisions, or, in other words, not to inter-
pret statutes in such a way as to make parts of them mean-
ingless. ORS 174.010 (“[W]here there are several provisions
or particulars such construction is, if possible, to be adopted
as will give effect to all.”); State v. Clemente-Perez, 357 Or
745, 755, 359 P3d 232 (2015) (under ORS 174.010, we gener-
ally “assume that the legislature did not intend any portion
of its enactments to be meaningless surplusage”). Therefore,
even if passive refusals to obey lawful orders are more
336 State v. McNally
common than active refusals, it does not follow that defin-
ing “passive resistance” without reference to motivation—to
mean simply noncooperation with a government power or
without using violence or active measures—would “largely
eliminate the crime” of refusing to obey a peace officer.
The state and the concurring opinion are correct
that their arguments find some support in the legislative
history. The legislative history includes multiple references
to protests and civil disobedience and “the MLK approach or
the Gandhi approach.” We agree that, when the legislature
enacted the amendments to ORS 162.247, it had in mind
protecting from arrest individuals who were engaged in a
peaceful political protest or some other kind of nonviolent
civil disobedience. However, as we have stated, the legisla-
tive history does not suggest that the legislature intended
the phrase “passive resistance” to apply only in those
situations.
Moreover, confining our understanding of the
phrase “passive resistance” even in the limited way that the
state urges—to public conduct that is motivated by “con-
science” or “principle”—borders on the unworkable. If pas-
sive resistance were interpreted to mean more than merely
nonviolent or inactive noncooperation, then courts would be
required to consider the bona fides or legitimacy of the moti-
vation for the refusal in order to decide which beliefs are
properly considered matters of conscience or principle and
which are not. That inquiry would certainly have constitu-
tional implications.
Passive noncooperation motivated by principle or
conscience would include the kinds of civil disobedience
described in the legislative history, essentially protecting
such protests as a form of expressive conduct. But under the
state’s (and the concurrence’s) proposed tests, the statute
would not protect identical conduct by an individual who
simply wanted to impress a friend or to achieve the fame
of appearing on the evening news. Assuming that a jury or
judge could divine the individual’s single, actual motivation,
would a conviction for interfering with a peace officer for
the latter reasons not potentially involve punishing certain
conduct on the basis of its expressive content—that is, an
Cite as 361 Or 314 (2017) 337
expression of personal, private desire, rather than principle
or conscience—in violation of the Oregon and United States
constitutions?11 See R.A.V. v. St. Paul, 505 US 377, 393-94,
112 S Ct 2538, 120 L Ed 2d 305 (1992) (holding unconsti-
tutional ordinance that prohibited symbols or displays that
insult or might provoke violence “on the basis of race, color,
creed, religion, or gender;” because the ordinance proscribed
“messages of racial, gender, or religious intolerance,” but not
other messages that insult or might provoke violence, it con-
stituted impermissible content discrimination).
Permitting some expressive conduct because it is
motivated by conscience or principle while punishing identi-
cal conduct that is motivated by more private desires raises
the issue of potentially impermissible content-based restric-
tions on speech. Such concerns are one reason that courts
often avoid an interpretation of a statute that would raise
constitutional problems in application, if another reasonable
interpretation of the statute would not. See DeBartolo Corp.
v. Florida Gulf Coast Trades Council, 485 US 568, 575, 108
S Ct 1392, 99 L Ed 2d 645 (1988) (“[W]here an otherwise
acceptable construction of a statute would raise serious con-
stitutional problems, the Court will construe the statute to
avoid such problems unless such construction is plainly con-
trary to the intent of Congress”); see also Adrian Vermeule,
Saving Constructions, 85 Geo L J 1945, 1949 (1997) (modern
application of “saving construction” canon “requires only a
determination that one plausible reading [of the statute]
might be unconstitutional” as opposed to requiring deter-
mination that one plausible reading “would be unconstitu-
tional.”) (emphasis in original). That consideration supports
the interpretation that we adopt here.
Finally, in response to the state’s argument that the
legislature intended “passive resistance” to encompass only
a refusal to obey a peace officer’s order that is motivated
by “principle” or “conscience,” we observe that anyone who
11
Article I, section 8, of the Oregon Constitution, provides: “No law shall
be passed restraining the free expression of opinion, or restricting the right to
speak, write, or print freely on any subject whatever, but every person shall be
responsible for the abuse of this right.” The First Amendment to the United
States Constitution provides, in part, “Congress shall make no law * * * abridging
the freedom of speech, or of the press [.]”
338 State v. McNally
refuses to obey such an order is motivated by something and
that neither of the words that the state suggests as determi-
native appear in the statute.
Our construction of the passive resistance excep-
tion in ORS 162.247 as referring to noncooperation with a
government power that does not involve violence or active
measures, whatever the motivation for the noncooperation,
avoids, to some extent, the pitfalls described above. It is con-
sistent with the ordinary meanings of the words used, and it
is not foreclosed by anything in the legislative history. That
interpretation criminalizes 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.
We recognize that this interpretation of “passive
resistance” as applying to noncooperation beyond well-
recognized protest activities, such as sit-ins, may reduce the
circumstances in which an individual may successfully be
prosecuted for failing to obey the lawful order of a peace offi-
cer under ORS 162.247(b). This case provides one example.
Similarly, depending on the facts, if individuals blocking a
street simply fail to clear the street in response to a police
order to move, their actions may constitute “passive resis-
tance” and therefore not violate the statute.
However, even a person who refuses to obey a lawful
order of a peace officer by engaging in passive resistance
may, depending on the facts, appropriately be charged with
other crimes, just as defendant here also was charged with
criminal trespass and resisting arrest. Or, to take the exam-
ple cited in the concurring opinion, 361 Or at ___, although
a driver who passively declines to provide his or her driver’s
license because the license is suspended could perhaps raise
passive resistance as a defense to prosecution for refus-
ing to comply with the lawful order of a peace officer, that
driver nevertheless could be charged with the misdemeanor
offense of failing to present a driver’s license. ORS 807.570.
And, of course, if the legislature determines that passive
resistance, as interpreted and applied here, unduly compli-
cates the work of peace officers in protecting public safety
and enforcing the law, it can amend ORS 162.247 to strike
Cite as 361 Or 314 (2017) 339
a different balance between the requirement to obey a peace
officer’s lawful order and the individual’s existing statutory
right passively to resist such an order.
For the reasons described above, we hold that the
phrase “passive resistance” in ORS 162.247 refers to nonco-
operation with a lawful order of a peace officer that does not
involve active conduct. Because there was evidence in the
record that defendant engaged in inactive, nonviolent non-
cooperation when the police officer ordered him to leave the
bus station, defendant was entitled to his proposed special
instruction stating that a person does not commit the offense
of interfering with a peace officer if the person is engaging
in passive resistance. The trial court erred in refusing to
give that instruction.
That error was not harmless. Evidence at trial
showed that defendant refused to leave the bus station when
the police officer ordered him to do so, and that defendant
had done no more than refuse to move in accordance with
the officer’s order. When viewed in the light most favorable
to defendant, that evidence would have allowed a reasonable
juror to conclude that, in defying the police officer’s order
to leave the bus station, defendant was engaged in passive
resistance and that he had not, therefore, violated ORS
162.247.
The decision of the Court of Appeals is reversed in
part and affirmed in part. The case is remanded to the cir-
cuit court for further proceedings.
KISTLER, J., concurring in the judgment.
ORS 162.247(3)(b) makes “passive resistance” a
defense to the crime of refusing to obey the lawful order
of a peace officer. The question that this case presents is
what “passive resistance” means.1 The majority holds that
1
The issue in this case arises in an odd posture. The trial court refused to
give defendant’s requested instruction: “If you find that [defendant] engaged in
activity that would constitute * * * passive resistance then you should find [defen-
dant] not guilty of Interfering with a Peace Officer.” The state has not argued that
that instruction was incorrect, and the issue has become whether the trial court’s
instructional ruling should be affirmed because there was no evidence from which
a reasonable juror could have found that defendant engaged in passive resistance.
That, in turn, has led to an inquiry into what “passive resistance” means.
340 State v. McNally
every instance in which a defendant declines, peaceably or
passively, to comply with an officer’s order constitutes “pas-
sive resistance” within the meaning of the statute. Under
the majority’s reasoning, a driver who declines, for any rea-
son or no reason, to provide his or her driver’s license to an
officer during a lawful traffic stop has engaged in “passive
resistance” and, as a result, has a complete defense to the
charge of refusing to comply with the officer’s order.
Not only is that result counterintuitive, but the
majority’s reasoning is difficult to reconcile with the text,
context, and legislative history of ORS 162.247. Textually,
the majority equates noncompliance with resistance, even
though the latter term is logically and linguistically nar-
rower than the former. As a matter of context, equating non-
compliance with passive resistance effectively eliminates
the crime of refusing to obey a lawful order of a peace officer,
contrary to the principle that we should give effect to all the
terms of a statute. Finally, the legislative history demon-
strates that whether a person is engaging in “passive resis-
tance” turns on two issues: (1) the nature of the resistance
(whether it is peaceable or passive) and (2) the reason for the
resistance (whether the person acts to express a position).
The majority is legitimately concerned about interpreting
“passive resistance” to avoid viewpoint discrimination, but
we can and should answer that concern in a way that gives
greater effect to the rest of the statute than the majority’s
interpretation does.
ORS 162.247(1) prohibits interfering with a police
officer and identifies two types of interference. Subsection
(1)(a) prohibits “[i]ntentionally act[ing] in a manner that pre-
vents, or attempts to prevent,” an officer from performing his
or her lawful duties. Subsection (1)(b) prohibits “[r]efus[ing]
to obey a lawful order” by the officer. One subsection prohib-
its certain types of actions while the other prohibits certain
One might question, however, the terms of the requested instruction. Within
a single encounter, a defendant may engage in multiple acts that could give rise
to separate charges of interfering with a peace officer. Some of those acts may be
active; others, passive. Contrary to the assumption that underlies the requested
instruction, even if one of those acts could constitute passive resistance, it does
not necessarily follow that none of those acts would constitute interfering with
a peace officer. However, that is what the instruction literally and, in my view,
incorrectly said.
Cite as 361 Or 314 (2017) 341
types of inaction. The statute also sets out two exceptions to
those prohibitions. It provides that “[t]his section does not
apply in situations in which the person is engaging in: (a)
[a]ctivity that would constitute resisting arrest under ORS
162.315; or (b) [p]assive resistance.” ORS 162.247(3).
The phrase at issue in this case—“passive
resistance”—consists of two words. “Passive” defines the
type of resistance, while resistance means “the act or an
instance of resisting: passive or active opposition.” Webster’s
Third New Int’l Dictionary 1932 (unabridged ed 2002) (defin-
ing resistance). Resistance, by definition, connotes more
than the passive failure to comply with a lawful request. It
connotes opposition to something. See id. (defining “resist”
as “to exert oneself to counteract or defeat : strive against
: OPPOSE”).” Implicit in that concept is a requirement that
a person refuse to comply with an officer’s order for some
reason, not for any reason or no reason at all.
The accepted use of the phrase reinforces that con-
clusion. As the majority notes, the phrase “passive resis-
tance” has become a term of art and, as such, has its own
particular significance. Webster’s defines the phrase as
meaning “resistance (as to a government or an occupying
power) that does not resort to violence or active measures
of opposition but depends mainly on techniques and acts of
noncooperation.” Id. at 1651. “Passive resistance,” as that
phrase has come to be used, means something more than
a mere passive failure to comply with a lawful order. It
denotes resistance or opposition (albeit passive and peace-
able) to a government or an occupying power. To be sure, a
person may decline to comply with a lawful order as a way of
expressing opposition. But the reason for the noncompliance
is what distinguishes passive noncompliance from passive
resistance.
The context points in the same direction. As noted,
ORS 162.247(3)(b) excepts “passive resistance” from the
prohibition in ORS 162.247(1)(b) against refusing to comply
with the lawful order of a peace officer. If the majority is cor-
rect that “passive resistance” includes all instances in which
a person passively declines to comply with an officer’s lawful
order, then little is left of the prohibition in ORS 162.247(1)(b).
342 State v. McNally
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 definition
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 eviscerate the pro-
hibition is hardly a reason for embracing it if another inter-
pretation reasonably gives greater effect to the prohibition.
After all, we should interpret the terms of a statute to give
effect to all its parts. See Vsetecka v. Safeway Stores, Inc.,
337 Or 502, 510, 98 P3d 1116 (2004) (stating that principle).
Moreover, if a person actively refuses to comply
with an officer’s lawful order, that conduct would seem to
fall more naturally within the prohibition in subsection
(1)(a) against “act[ing] in a manner that prevents, or
attempts to prevent,” an officer from carrying out his or her
lawful duties. Put differently, if, as a result of the majority’s
interpretation of passive resistance, the only content that it
can give the prohibition in subsection (1)(b) consists of con-
duct that more naturally comes within the prohibition in
subsection (1)(a), then we should think twice before accept-
ing the majority’s interpretation.
In my view, the majority’s interpretation is also
difficult to square with the legislative history. The major-
ity opinion sets out the legislative history in pieces, partly
because it relies on individual pieces of the history to rebut
the parties’ various arguments. Although the majority ends
up setting out almost all the relevant history by the end of
its opinion, the manner in which it recounts that history
may obscure rather than clarify the legislature’s intent.
Accordingly, I first describe chronologically the legislative
history that gave rise to the amendment at issue in this
case. I then explain the inferences that I draw from that
history.
In 1997, the legislature enacted what is now codi-
fied as ORS 162.247. Or Laws 1997, ch 719, § 1. As initially
enacted, that statute prohibited, as it does today, interfer-
ing with a peace officer either by “act[ing] in a manner that
prevents, or attempts to prevent,” the officer from carrying
out his or her lawful duties or by “refus[ing] to obey a lawful
Cite as 361 Or 314 (2017) 343
order” by the officer. Id. § 1(1). As initially enacted, subsec-
tion (3) of the statute set out a single exception to those two
prohibitions. It provided that “[t]his section does not apply in
situations in which a peace officer is making an arrest.” Id.
§ 1(3). The purpose of subsection (3) was to prevent a person
for being convicted twice for the same conduct—namely, to
prevent the person from being convicted for resisting arrest
and also for interfering with a peace officer.
Two years later, there was a concern that the excep-
tion set out in subsection (3) “ha[d] been construed a bit too
broadly,” and the House Subcommittee on Criminal Law
considered an amendment that narrowed the exception.
Tape Recording, House Judiciary Committee, Subcommittee
on Criminal Law, HB 3374, May 4, 1999, Tape 178, Side B.
The proposed amendment provided that the prohibitions in
ORS 162.247(1) do “not apply in situations in which the per-
son is engaging in activity that would constitute resisting
arrest under ORS 162.315.” Exhibit P, House Committee on
Judiciary, Subcommittee on Criminal Law, HB 3374, May 4,
1999. Having discussed the amendment, the subcommittee
voted to approve it.
After the subcommittee approved the amendment
and was about to move on to another issue, Representative
Bowman asked if she could raise a question about the
scope of the amendment that the subcommittee had just
approved. Tape Recording, House Committee on Judiciary,
Subcommittee on Criminal Law, HB 3374, May 4, 1999, Tape
178, Side B. She asked whether the amendment “change[s]
current law so that—so that passive resistance or civil dis-
obedience is now prohibited [by ORS 162.247(1)].” Id.
Both Representatives Mannix and Prozanski
responded that it did not. Each of them explained that, in
his view, the 1997 legislature had intended to exempt pas-
sive resistance from the prohibition against interfering with
a police officer and that the 1999 amendment to subsection
(3) did not eliminate that exemption. Id. Representative
Mannix, the chair of the subcommittee, explained:
“We were careful, if I may, I can answer that. I was around
when we were dealing with these statutes in Judiciary a
few years back. We went through true civil disobedience,
344 State v. McNally
the lying down, and tried to craft it so that if you were lying
down and the officers had to pick you up, that was okay. On
the other hand, if they tried to pick you up and you started
swinging at them or whatever, doing something physically,
we made a good record on that too, that that became at
least interference if not resistance, but you had to be doing
something physically to resist or to interfere, but just being
passive was not—because we were trying to respect what
I call the traditional civil rights passive resistance where
you just say you’re protesting and will not move.”
Id. Representative Prozanski added:
“Mr. Chair, we have also when the bill [regarding inter-
fering with a peace officer] was before the committees last
time I made that a very clear record because in my com-
munity there are a lot of people that do want to have a
passive resistance under the MLK approach or the Gandhi
approach of just basically—just being there as a presence
but not doing anything physically to a—in a way of waiving
your arms or swinging stuff and that was made clear. And
that’s the other reason that I wanted to make certain that
this—that the law itself, the crime of interfering, would not
include a passive civil disobedience protester.”
Id. In their view, the amendment that the subcommittee
had just approved did not eliminate passive resistance as a
defense to interfering with a peace officer. Id. Representative
Bowman said that those assurances answered her concern.
Id.
The colloquy among Representatives Bowman,
Mannix, and Prozanski is significant for two reasons. First,
Representatives Mannix and Prozanski explained that
“passive resistance” consisted of two elements: responding
passively (not actively) to the officer’s orders and doing so,
as Representative Mannix put it, as a part of “true civil
disobedience” or, as Representative Prozanski put it, “as a
passive civil disobedience protester.” That is, each represen-
tative took the view that “passive resistance” turned both on
the nature of the resistance (passive or peaceable) and the
reason for the resistance (to express a position regarding
a governmental or other policy). The reason for the resis-
tance was as integral to the concept of “passive resistance”
as the nature of the resistance. In my view, you cannot
Cite as 361 Or 314 (2017) 345
read Representatives Mannix and Prozanski’s responses
to Representative Bowman’s question and conclude that
either person viewed the nature of the resistance (passive
as opposed to active) as the sole defining element of passive
resistance.
There is a second reason why the colloquy among
the three representatives is significant: It turns out that
Representative Bowman’s concern was well-founded. As
Representative Bowman’s question recognized, by nar-
rowing the exception in ORS 162.247(3), the subcommit-
tee inadvertently had removed “passive resistance” as a
defense to a charge of interfering with a police officer.2 As a
result, two days later, on May 6, the subcommittee amended
subsection (3) again to restore “passive resistance” as a
defense to that crime. Tape Recording, House Committee on
Judiciary, Subcommittee on Criminal Law, HB 3374, May 6,
1999, Tape 179, Side B. In explaining the need for the May 6
amendment, Representative Prozanski stated:
“Mr. Chair the [proposed amendment] basically cover[s]
an area that you and I had spoken about and was brought
to [our] attention after we talked [about this issue] at our
last hearing [on May 4]. This is where we would be holding
someone accountable for interfering with a peace officer.
And the intent of all this previous legislation, including
resisting arrest, [was] that if someone was passively resist-
ing they would not be, let’s say, subject to a charge of either
resisting arrest and it’s always been intended that they not
be subject to a charge for interfering with a peace officer.
“And this basically clarifies that if someone is passively
resisting, such as in a protest situation, they would not be
subject to this law. Specifically, * * * if an officer asked them
2
The explanation runs as follows. As amended by the subcommittee on
May 4, 1999, subsection (3) provided that the prohibition against interfering with
a police officer “does not apply in situations in which the person is engaging in
activity that would constitute resisting arrest under ORS 162.315.” The definition
of resisting arrest in ORS 162.315 does not include “passive resistance”; rather,
it expressly excludes it. See ORS 162.315. It follows that, when the subcommit-
tee provided on May 4 that “engaging in activity that would constitute resisting
arrest under ORS 162.315” was the sole defense to the crime of interfering with
a police officer, that defense did not include engaging in “passive resistance.” Put
differently, Representative Bowman correctly recognized that the May 4 amend-
ment “change[s] current law so that—so that passive resistance or civil disobedi-
ence is now prohibited [by ORS 162.247(1)].”
346 State v. McNally
to stand up and be arrested, that could be interpreted as a
refusal to obey a lawful order of an officer. And since this
was supposed to protect the safeguards of the individuals
that are peacefully, without any violence, protesting, * * *
they would not be held accountable as long as it was only
passive resistance.”
Id.That explanation reflects Representative
Prozanski’s conclusion that it was necessary to add engag-
ing in “passive resistance” to engaging in “resisting arrest”
to restore the defense of “passive resistance” to the charge of
interfering with a peace officer.3 Representative Prozanski’s
explanation also reaffirmed the understanding of “pas-
sive resistance” that he and Representative Mannix had
expressed two days earlier.4 That is, he again made clear
that passive resistance turns on both the nature of the resis-
tance (passive or peaceable) and the reason for the resis-
tance (to express a position regarding a governmental or
other policy). In my view, the legislative history establishes
that both elements must be present before noncompliance
will constitute passive resistance.
The majority is not unmindful of that history. It
recognizes that, “when the [1999] legislature enacted the
amendments to ORS 162.247, it had in mind protecting from
arrest individuals who were engaged in a peaceful politi-
cal protest or some other kind of nonviolent civil disobedi-
ence.” The majority reasons, however, that “the legislative
history does not suggest that the legislature intended the
phrase ‘passive resistance’ to apply only in those situations.”
(Emphasis in original.) In my view, the legislative history
does not suggest that the legislature had anything else in
3
For that reason, the state’s argument that passive resistance is a subset of
resisting arrest is not well taken. There would have been no reason to add “pas-
sive resistance” as an exception to ORS 162.247(1) if the state were correct.
4
On May 4, 1999, Representatives Mannix and Prozanski had expressed
their understanding of the 1997 legislation. Ordinarily, a legislator’s views on
the meaning of an existing statute have little, if any, probative value. Brown v.
SAIF, 361 Or 241, 269, ___ P3d ___ (2017). However, the May 6, 1999, amend-
ment restored the concept of passive resistance that the legislature had enacted
in 1997 and that Representatives Mannix and Prozanski had discussed on
May 4, 1999. For that reason, Representative Mannix and Prozanski’s descrip-
tion of that phrase on May 4 bears on its meaning.
Cite as 361 Or 314 (2017) 347
mind in excepting “passive resistance” from the prohibi-
tion against interfering with a peace officer. Moreover, the
most natural reading of the text and context leads to the
same conclusion that the legislative history does. Reading
the text, context, and legislative history together, I would
hold that passive resistance requires both an act (passive or
peaceable noncompliance) taken for a reason (to express a
position on a governmental or other policy). Passive noncom-
pliance, by itself, is not enough.
The majority identifies another basis for not giving
effect to the legislative history. It notes that our cases have
held that “the fact that the legislature had a specific con-
cern in mind in enacting legislation does not mean that the
legislature necessarily intended the legislation to address
only that concern.” While true, that rule applies when the
text of the measure is unambiguously broader than the spe-
cific situation that prompted the legislature to act. South
Beach Marina, Inc. v. Dept. of Rev., 301 Or 524, 531, 724 P2d
788 (1986). However, we recently explained in Lake Oswego
Preservation Society v. City of Lake Oswego, 360 Or 115, 129,
379 P3d 462 (2016), that “the fact that a statutory provi-
sion describes something in relatively broad terms does not
always mean that the legislature intended the most expan-
sive meaning possible.” Rather, “where there is evidence
[that the] legislature had a more specific meaning in mind
and that meaning is consistent with the text, [a] court may
appropriately construe [the] text as such even if [the text]
permits [a] more expansive interpretation.” Id. (explaining
State v. Walker, 356 Or 4, 17, 333 P3d 316 (2014)).
This case is closer to Lake Oswego Preservation
Society than South Beach Marina. For the reasons explained
above, the text of subsection (3)(b) is, at a minimum, ambig-
uous. It permits (if not requires) a narrower reading than
the majority gives it, as does the context. In this situation,
the interpretative rule stated in South Beach Marina is inap-
plicable. Applying that rule here results in our not giving
effect to the clear intent expressed in the legislative history.
Accordingly, I would hold that the question whether a person
is “engaging in * * * passive resistance” within the meaning
of ORS 162.247(3)(b) turns on two issues: (1) the nature of
the resistance and (2) the reason for it. The resistance must
348 State v. McNally
be peaceable or passive, and reason for it must be to express
a position on a governmental or other policy choice.
The majority raises one final concern. It notes that,
if the phrase “passive resistance” is interpreted to apply
only to the specific examples set out in the legislative his-
tory, the exception would be subject to a claim of viewpoint
discrimination. That is, if the legislature granted an excep-
tion only to those people who engaged in passive resistance
to oppose government action but not to those who engaged in
the same activity to support it, the exception would imper-
missibly favor one viewpoint over another. That same con-
cern presumably led the Court of Appeals to define “pas-
sive resistance” by reference to “specific acts or techniques
that are commonly associated with governmental protest or
civil disobedience” rather than points of view. See State v.
Patnesky, 265 Or App 356, 366, 335 P3d 331 (2014).
I agree with the majority that the Court of Appeals’
solution to that problem—defining passive resistance by
reference to acts or techniques—seems artificial and, more
importantly, may be too narrow. However, in my view, the
majority’s interpretation of passive resistance is too broad.
To save the exception for passive resistance, the majority
sacrifices the prohibition against refusing to comply with
the lawful order of a peace officer. In my view, we need not
interpret “passive resistance” to include all passive or peace-
able noncompliance, as the majority does, to avoid a claim
of viewpoint discrimination. It is sufficient to say that the
phrase “passive resistance” applies to peaceable or passive
noncompliance taken to express a position on a governmen-
tal or other policy. Defining the reason for passive noncom-
pliance neutrally avoids the risk of viewpoint discrimination
that rightly concerns the majority.
Moreover, defining “passive resistance” more nar-
rowly than the majority does gives effect to the legislature’s
intent that “passive resistance” turns on both the nature of
the resistance (passive or peaceable) and the reason for the
resistance (to express a position regarding a governmental
or other policy). Under the narrower interpretation, a driver
who passively declines to provide his or her driver’s license
because the license is suspended will violate the prohibition
Cite as 361 Or 314 (2017) 349
against refusing to comply with the lawful order of a peace
officer. See ORS 162.247(1)(b). However, under the majority’s
interpretation, that driver would have a complete defense to
a charge of violating the statute since, as the majority inter-
prets “passive resistance,” the reason for noncompliance
is irrelevant. Under its interpretation, all that matters is
whether the noncompliance is peaceable.
To be sure, if “passive resistance” turns not only on
the nature of the act but also the reason for it, the trier of
fact will have to determine the reason a defendant declined
to comply with an officer’s request. However, we frequently
ask the trier of fact to make that sort of factual determina-
tion. For instance, we ask juries to decide why an employer
discharged an employee. An otherwise permissible dis-
charge can become impermissible depending on the reason
for the employer’s act. Similarly, the legislature asks juries
to decide why a defendant committed an assault, and it
enhances the penalty if the defendant assaulted a victim
because of the victim’s actual or perceived membership in
a protected class. See State v. Plowman, 314 Or 157, 161-62,
838 P2d 558 (1992) (upholding that reason for enhancing
the penalty against a claim that the statutory scheme was
vague and thus incapable of consistent application). Asking
juries to decide why a defendant declined to comply with an
officer’s request follows that familiar pattern.
In this case, the state concedes that, if “passive
resistance” turns on why the defendant declined to comply
with the officer’s orders, there was evidence from which jury
could have found that he did so to express a position on a
governmental or other policy. Given the state’s concession, I
agree with the majority that the Court of Appeals decision
should be reversed and the case remanded for further pro-
ceedings. Accordingly, I concur in the judgment.
Landau and Brewer, JJ., join in this opinion concur-
ring in the judgment.