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State v. McNally

Supreme Court of Oregon

April 20, 2017

STATE OF OREGON, Respondent on Review,
v.
SEAN MICHAEL McNALLY, Petitioner on Review.

          Argued and submitted May 10, 2016

         On review from the Court of Appeals, CC 111152528, CA A150977. [*]

          Andrew D. Robinson, Deputy Public Defender, Salem, argued the cause and fled the briefs for the petitioner on review. Also on the briefs was Ernest G. Lannet, Chief Defender, Offce of Public Defense Services.

          Jamie K. Contreras, Assistant Attorney General, Salem, argued the cause and fled 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. [**]

         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.

          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 affrmed in part. The case is remanded to the circuit court for further proceedings.

          BALMER, C. J.

         After defendant refused to comply with a police officer'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 resistance" 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 defendant'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 P.3d 1255 (2015).

         We allowed defendant's petition for review and now hold that the phrase "passive resistance" refers to noncooperation 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 otherwise 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 station 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 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 attention 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 eventually handcuffed and arrested.

         Defendant was charged with second-degree criminal trespass, interfering with a peace officer, and resisting 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 constituted "passive resistance." See ORS 162.247(3)(b) (providing 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 instruction 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 instruction. The jury found defendant guilty of all three charges.

         Defendant appealed his convictions for interfering with a peace officer and for resisting arrest, assigning error in each instance to the trial court's failure to give the 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 engaging 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 P.3d 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 associated 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 passive-resistance instruction."

McNally, 272 Or.App. at 207.

         On review, defendant argues that he was entitled to the passive resistance instruction because the term "passive resistance" in ORS 162.247(3)(b) refers to any interference 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, even if passive resistance must be part of a political protest, the evidence in this case supported the passive resistance 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 definition 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 concedes error. The state asserts that, assuming for purposes 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 "specific 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 situations) the trial court erred in refusing to give defendant's proposed special instruction, because there was some evidence 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 P.3d 522 (2000). A criminal defendant is entitled to have the jury instructed in accordance with his or her theory of the case if the instruction correctly states the law and there is evidence to support giving it. State v. Simonov, 358 Or 531, 533, 368 P.3d 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:
"(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 passive 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 "passive 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 legislature'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 P.3d 1042 (2009). We begin with the text of the statute, because the words that the legislature uses in a statute are the most persuasive evidence of the legislature's wishes. Alfieri v. Solomon, 358 Or 383, 392, 365 P.3d 99 (2015).

         The phrase "passive resistance" is not defined in ORS 162.247 or elsewhere in the statutes. In such a circumstance, we first consider the "plain, natural, and ordinary" meaning of the phrase. DCBS v. Muliro, 359 Or 736, 745-46, 380 P.3d 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 P.3d 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 have intended." 359 Or at 746. When the phrase is a term of art, drawn from a specialized field, courts "look to the meaning 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 P.3d 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 protesting something, esp. a government, by refusing to cooperate 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 definition in Black's provides, as an example, "a method of protesting something, " neither definition requires a specific political purpose. Rather, both dictionaries support a potentially broader interpretation of "passive resistance" as, simply, 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 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" connotes "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 definition but on an example used to illustrate the definition: the "'refusal through civil disobedience *** of a people to cooperate 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 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 associated 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 demonstrations in support of civil rights. But the question is whether the term is limited to such conduct and motivation. As discussed above, the term "passive resistance" is at least capable of an interpretation that includes conduct in addition to "acts and techniques" ...


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