City of Salem v. Wolf

Court of Appeals of Oregon

City of Salem v. Wolf

766 P.2d 1051, 94 Or. App. 654

CourtCourt of Appeals of Oregon

DecidedJanuary 11, 1989

Docket87D-101400; CA A46107

StatusPublished

This text of 766 P.2d 1051 (City of Salem v. Wolf) is published on Counsel Stack Legal Research, covering Court of Appeals of Oregon primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

City of Salem v. Wolf, 766 P.2d 1051, 94 Or. App. 654 (Or. Ct. App. 1989).

Pincite

Opinion

WARREN, J.

Defendant appeals his conviction under Salem Revised Code § 95.430(a) for resisting a peace officer. He contends that the court erred in denying a motion to dismiss the accusatory instrument, arguing that the ordinance is unconstitutionally overbroad. We affirm.

The facts are not in dispute, and the details are not essential to the legal issues raised by defendant. Defendant was tried before a jury and convicted.

Defendant argues that section 95.430(a) is unconstitutionally overbroad in that it reaches behavior protected under the search and seizure and free speech provisions of the Oregon and United States constitutions. Section 95.430(a) provides:

“It shall be unlawful for any person acting intentionally, knowingly, or recklessly:

“a) to resist any person known to him to be a peace officer acting in the discharge or apparent discharge of his duty.”

We first consider defendant’s state constitutional claims. State v. Kennedy, 295 Or 260, 262, 666 P2d 1316 (1983). He contends that section 95.430(a) violates his right under Article I, section 9, of the Oregon Constitution to be secure from unreasonable seizure,¹ because it does not explicitly permit resistance to an officer’s use of excessive force during arrest. We have interpreted the resisting arrest statute, ORS 162.315,² as not prohibiting resistance to exces[657]*657sive force. State v. Crane, 46 Or App 547, 552-53, 612 P2d 735, rev den 289 Or 903 (1980). A municipal criminal ordinance may not criminalize acts that the state has chosen not to criminalize. City of Portland v. Dollarhide, 300 Or 490, 501-02, 714 P2d 220 (1986). We construe the ordinance, consistently with ORS 162.315, to permit resistance to an arrest made with excessive force. Thus, defendant’s claim under Article I, section 9, fails.³

Defendant also argues that section 95.430(a) violates the constitutional right to free speech and expression. He gives four examples of constitutionally protected speech that he states would be forbidden: a suspect’s invocation of the right against self-incrimination; an attorney advising a client to assert constitutional rights against self-incrimination, search or an arrest without probable cause; the refusal to comply with a warrantless search; and protesters who clench fists and sing “we shall not be moved” in response to a declaration that they are under arrest.

The Oregon resisting arrest statute defines “resist” as “the use or threatened use of violence, physical force, or any other means that creates a substantial risk of physical injury to any person.” ORS 162.315(2). Physical force or a substantial risk of injury is an element of resistance. We construe the word “resist” in section 95.430(a) as it is defined in ORS 162.315(2).⁴ See note 2, supra. None of plaintiffs examples even arguably fits the definition. Therefore, they are not within the scope of the ordinance, and plaintiffs constitutional challenges under Article I, section 8, and the First Amendment fail.

Affirmed.

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WARREN, J.

Defendant appeals his conviction under Salem Revised Code § 95.430(a) for resisting a peace officer. He contends that the court erred in denying a motion to dismiss the accusatory instrument, arguing that the ordinance is unconstitutionally overbroad. We affirm.

The facts are not in dispute, and the details are not essential to the legal issues raised by defendant. Defendant was tried before a jury and convicted.

Defendant argues that section 95.430(a) is unconstitutionally overbroad in that it reaches behavior protected under the search and seizure and free speech provisions of the Oregon and United States constitutions. Section 95.430(a) provides:

“It shall be unlawful for any person acting intentionally, knowingly, or recklessly:

“a) to resist any person known to him to be a peace officer acting in the discharge or apparent discharge of his duty.”

We first consider defendant’s state constitutional claims. State v. Kennedy, 295 Or 260, 262, 666 P2d 1316 (1983). He contends that section 95.430(a) violates his right under Article I, section 9, of the Oregon Constitution to be secure from unreasonable seizure,¹ because it does not explicitly permit resistance to an officer’s use of excessive force during arrest. We have interpreted the resisting arrest statute, ORS 162.315,² as not prohibiting resistance to exces[657]*657sive force. State v. Crane, 46 Or App 547, 552-53, 612 P2d 735, rev den 289 Or 903 (1980). A municipal criminal ordinance may not criminalize acts that the state has chosen not to criminalize. City of Portland v. Dollarhide, 300 Or 490, 501-02, 714 P2d 220 (1986). We construe the ordinance, consistently with ORS 162.315, to permit resistance to an arrest made with excessive force. Thus, defendant’s claim under Article I, section 9, fails.³

Defendant also argues that section 95.430(a) violates the constitutional right to free speech and expression. He gives four examples of constitutionally protected speech that he states would be forbidden: a suspect’s invocation of the right against self-incrimination; an attorney advising a client to assert constitutional rights against self-incrimination, search or an arrest without probable cause; the refusal to comply with a warrantless search; and protesters who clench fists and sing “we shall not be moved” in response to a declaration that they are under arrest.

The Oregon resisting arrest statute defines “resist” as “the use or threatened use of violence, physical force, or any other means that creates a substantial risk of physical injury to any person.” ORS 162.315(2). Physical force or a substantial risk of injury is an element of resistance. We construe the word “resist” in section 95.430(a) as it is defined in ORS 162.315(2).⁴ See note 2, supra. None of plaintiffs examples even arguably fits the definition. Therefore, they are not within the scope of the ordinance, and plaintiffs constitutional challenges under Article I, section 8, and the First Amendment fail.

Affirmed.

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Bluebook (online)

766 P.2d 1051, 94 Or. App. 654, Counsel Stack Legal Research, https://law.counselstack.com/opinion/city-of-salem-v-wolf-orctapp-1989.

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