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Can the Assertion of a Constitutional Right be a Crime? By: Timothy Healy; March 1997 n some maverick jurisdictions, when law enforcement officers don't have probable cause to arrest a person whom they believe committed a crime, the officers often find probable cause to arrest for resisting arrest or obstruction of justice when the person exercises his or her constitutional rights. In such a situation, can a person's assertion of his or her constitutional rights be a crime? In a recent case, the State charged my client with resisting. My client was standing next to his front door when several police officers began walking through his gate onto his property. The officers did not have a warrant and there were no exigent circumstances. My client stated to the officers that they were not to come onto his property without a warrant and that he would be glad to talk to the officers where they were. However, the officers kept coming. Feeling that the officers did not have the right to come onto his property without a warrant and because he was afraid for his safety, my client went inside his home and shut the door. Twenty to thirty seconds later, his client opened the door. The officers forced their way into his residence and maced him in the face, before tackling him in his living room in front of his five year old daughter. My client was subsequently arrested and charged with resisting arrest. RCW 9A.76.040(1). Said statute requires that the suspect intentionally prevent or attempt to prevent a peace officer from lawfully arresting him or her. As the statute requires the arrest to be lawful, and the arrest in the present case was not1, the prosecutor's office dismissed the resisting charge and amended the charge to obstructing. Obstructing a law enforcement officer in his official duties does not explicitly contain the element of lawfulness. The statute states in pertinent part: A person is guilty of obstruction if the person willfully hinders, delays, or obstructs any law enforcement officer in the discharge of his or her duties. RCW 9A.76.020(3). Given that the statute does not explicitly contain the element of lawfulness, in some jurisdictions the prosecutor's office will amend the complaint to obstructing when the officer's conduct has been arguably unlawful or unconstitutional. In such a case, the statute must be attacked as unconstitutional. See State v. Lalonde, 35 Wn.App. 54, 665 P.2d 421 (1983) (in order to determine whether the obstruction statute is unconstitutional in a particular case, the statute must be examined in light of the facts in the case at issue). Other persuasive authority, although not controlling, is found in Am.Jur. See 58 Am.Jur.2d Obstructing Justice § 92 citing Ohio v. Neftzer, 62 Ohio Misc. 2d 384, 598 N.E.2d 938 (1992), wherein the court stated: The extent of the privilege to resist unlawful entry into the home has yet to be dealt with...The United States Supreme Court has repeatedly held, however, that searches and seizures inside a home without a warrant are presumptively unreasonable. Steagald v. United States, 451 U.S. 204, 101 S.Ct. 1642, 68 L.Ed.2d 38 (1981)...An occupant can act upon that presumption and refuse admission. The Fourth Amendment gives him a constitutional right to refuse to consent to entry and search. The assertion of that right cannot be a crime.... It is clear from these cases that an individual can lawfully refuse to consent to a warrantless search. Further, we recognize, consistent with the aforementioned cases, that there exists at least some limited right to resist entrance, such as locking or closing the door or physically placing oneself in the officer's way. (Emphasis added.) Id. at 387. As in Neftzer, if you find yourself in a jurisdiction which attempts to criminalize your client's assertion of his or her constitutional rights, your client's assertion these rights cannot be a crime. ______________________________ NOTES: 1The arrest of my client inside his house was unlawful because Washington law is clear that without a warrant and absent exigent circumstances, the police are prohibited from arresting a suspect while the suspect is standing in the doorway of his house or inside of his house. See State v. Holeman, 103 Wn.2d 426, 693 P.2d 89 (1985). Moreover, the warrantless entry of law enforcement officers onto a constitutionally protected portion of the curtilage of a home is invalid unless justified under an exception to the warrant requirement. State v. Mierz, 72 Wn.App. 783, 866 P.2d 65 (1994). |
