Jurco v. State

825 P.2d 909, 1992 Alas. App. LEXIS 13, 1992 WL 25146
CourtCourt of Appeals of Alaska
DecidedFebruary 14, 1992
DocketA-3382
StatusPublished
Cited by17 cases

This text of 825 P.2d 909 (Jurco v. State) is published on Counsel Stack Legal Research, covering Court of Appeals of Alaska primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Jurco v. State, 825 P.2d 909, 1992 Alas. App. LEXIS 13, 1992 WL 25146 (Ala. Ct. App. 1992).

Opinions

OPINION

Mannheimer, Judge.

David Jurco was convicted, following a jury trial in district court, of disorderly conduct, AS 11.61.110(a)(6), and resisting arrest, AS 11.56.700(a)(1). These offenses resulted from a confrontation between Jur-co and members of the State Troopers who had come to Jurco’s residence to serve a court order directing them to take possession of Jurco’s truck. The Kenai District Court had ordered seizure of the truck in connection with a civil action filed by the State seeking forfeiture of the vehicle because it had been used in furtherance of a violation of the fish and game laws.

Unbeknown to the troopers, Jurco had recently filed for bankruptcy. The federal bankruptcy court had directed Jurco not to sell or transfer any of his property or allow creditors to take any of his property without court order. Jurco believed that the [911]*911bankruptcy court’s directive obliged him to resist the troopers’ attempt to seize his truck. At first, Jurco argued with the troopers. Finding he could not dissuade them, Jurco got into the truck and started it. With Trooper Eugene Kallus trying to hang on to the side of the truck, Jurco drove the truck away to a different location on his property. Jurco then got out of the truck, removed the battery from the vehicle, and began to let the air out of the. truck’s tires.

At this point, Trooper Kallus informed Jurco that he was placing him under arrest for disorderly conduct. Kallus attempted to handcuff Jurco, but Jurco resisted; he broke free from Kallus’s hold and ran into his house. Eventually, after Jurco spoke on the telephone with Kallus’s superior officer, Jurco decided to come out of the house and surrender himself.

1. Regardless of the Validity of the District Court’s Order to Seize Jur-co’s Truck, Jurco Was Properly Convicted of Disorderly Conduct and Resisting Arrest

Jurco argues that the criminal prosecution against him should have been dismissed under the supremacy clause of the United States Constitution (Art. VI, clause 2). He asserts that, because he had filed for bankruptcy, the Alaska District Court lacked power either to order forfeiture of his truck or to issue a warrant for its seizure.

But even if we assume for purposes of argument that Jurco’s interpretation of bankruptcy law is correct, the question remains whether Jurco was entitled to forcibly resist the troopers when they came to execute the Kenai District Court’s warrant. We conclude that Jurco was not entitled to forcibly resist the troopers even if he reasonably believed that the seizure of his truck was illegal.

As a preliminary matter, even if Jurco were legally entitled to forcibly resist the troopers’ taking of his truck — so that his attempts to thwart this taking did not constitute the crime of disorderly conduct — Jurco would still be properly charged with resisting arrest. As will be discussed in more detail below, even if a person is being subjected to unlawful arrest by police officers, Alaska law does not allow that person to use force to resist the arrest (so long as the officers do not use excessive force in making the arrest). AS 11.81.-400(a). Once the troopers undertook to arrest Jurco for disorderly conduct, Jurco was obliged not to resist this arrest even if the disorderly conduct charge was invalid. Thus, Jurco’s claim that he was entitled to forcibly resist the taking of the truck calls into question only his conviction for disorderly conduct, not his conviction for resisting arrest.

Jurco was charged with disorderly conduct under AS 11.61.110(a)(6), the provision of the statute which forbids a person from “recklessly [creating] a hazardous condition for others by an act which has no legal justification or excuse”. The State argued that Jurco had put Trooper Kallus at risk when he drove the truck across the property. Jurco responded that his obstruction of the troopers was legally justified or excused because he acted under a reasonable belief that the Kenai District Court (and thus the officers executing that court’s order) had no authority to seize his truck.

At common law, a public officer was authorized to use reasonable force against other persons when executing a court order requiring or authorizing the officer to seize another person’s property. LaFave and Scott, Substantive Criminal Law (1986), § 5.5(a), Vol. 1 at 641. This common-law rule has been codified in Alaska; AS 11.81.-420 provides:

Justification: Performance of public duty.
(a) Unless inconsistent with AS 11.81.-320 — 11.81.410, conduct which would otherwise constitute an offense is justified when it is required or authorized by law or by a judicial decree, judgment, or order.
(b) The justification afforded by this section also applies when ... the person reasonably believes the conduct to be required or authorized by a decree, judg[912]*912ment, or order of a court of competent jurisdiction or in the lawful execution of legal process, notwithstanding lack of jurisdiction of the court or defect in the legal process[.]

Under this statute, law enforcement officers are empowered to use force to execute court decrees, even if it is later shown that the court had no authority to issue the decree. Thus, in Jurco’s case, the State Troopers were authorized to use all reasonable force to execute the Alaska District Court’s order to seize Jurco’s vehicle, even if Jurco was correct in claiming that the pendency of his bankruptcy petition deprived the state district court of the judicial authority to issue orders affecting his property.

However, the common law also recognized a principle that is seemingly in contradiction to the rule just discussed: a property owner was entitled to use force to resist an unlawful taking of his property. “One whose lawful possession of property is threatened by the unlawful conduct of another, and who has no time to resort to the law for its protection, may take reasonable steps, including the use of force, to prevent or terminate such interference with the property.” LaFave and Scott, Substantive Criminal Law, § 5.9(a), Yol. 1 at 668. This second common-law rule has also been codified in Alaska; AS 11.81.-350(a) provides:

Justification: Use of force in defense of property and premises.
(a) A person may use nondeadly force upon another when and to the extent the person reasonably believes it is necessary to terminate what the person reasonably believes to be the commission or attempted commission by the other of an unlawful taking or damaging of property or services.

For purposes of deciding this appeal, we assume that Jurco reasonably believed that the Kenai District Court’s order to seize his truck ran afoul of the federal bankruptcy court’s order to keep his property together. In such a situation, the joint operation of AS 11.81.420 and 11.81.350(a) would seemingly allow Jurco to use force against the troopers to resist the taking of his truck while at the same time authorizing the troopers to respond with force of their own against Jurco — creating an escalating confrontation that would end only when the troopers resorted to deadly force against Jurco. (The statute allowing Jurco to use force, AS 11.81.350(a), authorizes only the use of “nondeadly force”, while the statute allowing the troopers to use force, AS 11.-81.420, contains no such limitation.)

This could not have been the legislature’s intention.

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Jurco v. State
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Cite This Page — Counsel Stack

Bluebook (online)
825 P.2d 909, 1992 Alas. App. LEXIS 13, 1992 WL 25146, Counsel Stack Legal Research, https://law.counselstack.com/opinion/jurco-v-state-alaskactapp-1992.