and submitted May 10, 2016
review from the Court of Appeals, CC 111152528, CA A150977.
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
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.
Balmer, Chief Justice, and Kistler, Walters, Landau, Brewer,
and Flynn, Justices, and Baldwin, Senior Justice pro tempore.
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.
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.
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.
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.
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).
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.
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.
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.
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
trial court refused to give that instruction. 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.
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.
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). 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.
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.
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.
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
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).
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."
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).
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
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.
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
Third New Int'l Dictionary 1651 (unabridged ed
2002). Black's Law Dictionary defines the phrase
"[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). 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.
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.
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.
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). 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. 265 Or.App. at 361.
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.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" ...