People in Interest of JJC

854 P.2d 801, 1993 WL 255185
CourtSupreme Court of Colorado
DecidedJuly 12, 1993
Docket92SC254
StatusPublished
Cited by5 cases

This text of 854 P.2d 801 (People in Interest of JJC) is published on Counsel Stack Legal Research, covering Supreme Court of Colorado primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
People in Interest of JJC, 854 P.2d 801, 1993 WL 255185 (Colo. 1993).

Opinion

854 P.2d 801 (1993)

The PEOPLE of the State of Colorado, Petitioner, in the Interest of J.J.C., A Juvenile and Concerning, W.C., Respondent.

No. 92SC254.

Supreme Court of Colorado, En Banc.

July 12, 1993.

*802 Robert R. Gallagher, Jr., Dist. Atty., James C. Sell, Chief Deputy Dist. Atty., Patryce S. Engel, Intern Deputy Dist. Atty., Englewood, for petitioner.

Andrea Beckman, Englewood, for respondent.

Karen Johnson, Littleton, Guardian Ad Litem.

Justice SCOTT delivered the Opinion of the Court.

We granted the People's request for certiorari review in order to examine a court of appeals decision upholding the judgment of the district court, sitting as a juvenile court, which held that resisting detainment by a privately employed security guard, who is also a uniformed off-duty peace officer, does not constitute the commission of an act which would be deemed the crime of "resisting arrest" within the meaning of section 18-8-103(1)(a), 8B C.R.S. (1986) if committed by an adult. People in Interest of J.J.C., 835 P.2d 553 (Colo.App.1992). Because there was no evidence presented to show that the off-duty peace officer in question was acting in the regular course of his assigned duties, we affirm the court of appeals decision.

I.

On March 9, 1990, J.J.C., a juvenile, paid the admission fee and was allowed to enter Skate City, an indoor skating rink in Aurora, Colorado. However, after an employee identified J.J.C. as the same person who, during the previous week, was suspended from the use of the rink for thirty days for misconduct, the rink's manager refunded the admission fee and requested that J.J.C. leave the skating rink. Upon the manager's request, J.J.C. left the skating rink premises.[1]

A short while later, a number of skates were discovered missing and the manager went outside to investigate, accompanied by William F. Wehmer (Wehmer), the security guard working at the rink that evening. Wehmer was also employed as an Aurora Police Department detective at the time and, although off-duty from the Department, was in full police uniform. While returning to the front of the building, the manager observed J.J.C. near the rink's parking lot, but off the Skate City premises. The manager pointed J.J.C. out to Wehmer, and asked Wehmer to accompany him to the adjacent lot so that Wehmer could serve as a witness while the manager issued a warning that J.J.C. was not to return to Skate City.

The manager, accompanied by Wehmer, confronted J.J.C. and told him that he was indefinitely barred from the skating rink. In response, J.J.C. began using obscene language and stated that because he was not on Skate City property, he did not have *803 to leave. Believing J.J.C. was acting "belligerent," Wehmer "grabbed" him and "told him he was under arrest." J.J.C. fell to the ground and began "rolling around" in an apparent attempt to prevent Wehmer from handcuffing him.

While attempting to secure J.J.C., Wehmer sent the manager back to Skate City to "call for a police officer." Before an on-duty police officer arrived, however, J.J.C. freed himself from Wehmer's grasp and ran away. Shortly thereafter, an on-duty officer, accompanied by Wehmer, arrested J.J.C.

Based on the events of that evening, J.J.C. was charged under a delinquency petition with having committed acts that, if committed by an adult, would constitute the following three offenses: third-degree criminal trespass in violation of section 18-4-504, 8B C.R.S. (1986), a class one petty offense; disorderly conduct in violation of section 18-9-106(1)(b), 8B C.R.S. (1986), a class one petty offense; and resisting arrest in violation of section 18-8-103(1)(a), 8B C.R.S. (1986), a class two misdemeanor.[2]

At the juvenile proceeding, J.J.C. argued, inter alia, that because Wehmer was off-duty at the time of the attempted arrest, it was "questionable whether or not [he] was acting under color of his official authority," especially in light of the evidence offered by Wehmer's own testimony that he instructed the manager to call on-duty Aurora police officers to effect the arrest. J.J.C. thus maintained that the "resisting arrest" charge should be dismissed. The juvenile court agreed with J.J.C. and in dismissing the "resisting arrest" charge, found that the evidence adduced at trial was insufficient to show, beyond a reasonable doubt, that Wehmer was acting "under color of his official authority" at the time of the attempted arrest, as required by section 18-8-103(1)(a), the so-called "resisting arrest" statute. As that court explained,

[t]he testimony was that [Wehmer] was off-duty, was acting in a private employment capacity, that he was not acting in the regular course of his assigned duties, and I believe, therefore, based on [the language of section 18-8-103(1)(a) ], that the burden of proof has not been sustained beyond a reasonable doubt on Count Three, resisting arrest.

(Brackets added.)

The People appealed the juvenile court's dismissal of the charge against J.J.C. for "resisting arrest" to the court of appeals, and that court affirmed the juvenile court's ruling, based on a similar construction of the resisting arrest statute. Specifically, the court of appeals relied on language of the resisting arrest statute which expressly limits its application to those situations in which a police officer is attempting an arrest "while acting under color of his official authority." J.J.C., 835 P.2d at 555. The court of appeals reasoned that Wehmer

was not acting in his capacity as a police officer for the Aurora Police Department at the time he attempted to effect an arrest. The Aurora police department [sic] had not assigned him to function as a guard for Skate City, nor did his regularly assigned duties for the Aurora Police Department include any at the skating arena. Thus, the off-duty officer, in attempting to make an arrest, was acting solely in his capacity as a citizen whose job title was that of a security guard.

J.J.C., 835 P.2d at 555-56. Thus the court of appeals held that one who resists an arrest by an off-duty officer has not resisted any official authority, and hence cannot be guilty of the crime of resisting arrest.

The People subsequently sought review by this court of the court of appeals decision, arguing that Wehmer's efforts to preserve the peace were undertaken "in the course of [his] regularly assigned duties, not those duties empowered to him by a private employer, but by the state," and that therefore Wehmer was acting under *804 color of his official authority when he attempted to arrest J.J.C. The People argue further that because Wehmer was in standard police uniform at the time he attempted to arrest J.J.C., "the public, the juvenile and the world was [sic] on notice that this was an officer of the law."

We granted certiorari to determine first, "whether the court of appeals erred in ruling that an off-duty police officer does not act `under color of his official authority' when making an arrest for misdemeanors or petty offenses committed in his presence," and next, "whether the court of appeals erred in not finding unlawful the resisting of an arrest by an off-duty police officer while in uniform or, if not in uniform, who discloses his identity while acting `under color of his official authority.'"

II.

Section 18-8-103(1), 8B C.R.S. (1986) of the so-called "resisting arrest" statute, provides as follows:

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Bluebook (online)
854 P.2d 801, 1993 WL 255185, Counsel Stack Legal Research, https://law.counselstack.com/opinion/people-in-interest-of-jjc-colo-1993.