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Mary Cheh wants to change the definition of assaulting a police officer. Here's why that's important.

On Tuesday, Ward 3 DC Councilmember Mary Cheh introduced a bill to reform some elements of criminal justice procedure. It would change the law around "assaulting a police officer," strengthen prosecutors' duty to turn over evidence to defendants, and other things. Why does Cheh feel these laws need reforming, and what will her bill do?

Image by chriswhite313 on YouTube.

First, a quick quiz: Which of the following would be considered "assaulting a police officer"?

  1. Punching a police officer in the face.
  2. Standing behind a gate holding it closed while an officer tries to push it open.
  3. Sitting in your car grabbing the steering wheel while an officer tries to drag you out of your car.
  4. Standing at a Metro station with your hands in your pockets, refusing to take them out of your pockets when an officer commands you to.
  5. Being a Metro passenger and having transit police drag you from your wheelchair and smash your face into the ground.

If you guessed just #1, you are wrong.

All of these are cases which happened in recent years and where people were charged with Assaulting a Police Officer (APO). The DC Court of Appeals upheld APO convictions in #1, #2, and #3. The US Attorney argued #4 was APO, but the appeals court said no. In #5, charges were dropped after the incident was caught on video.

This post revises and expands on one from 2011 on this issue, when incident #5, above, was in the news.

When assault means assault

#1 is obvious. If you do that you can be charged with a felony APO. DC law § 22-405, "Assault on member of police force, campus or university special police, or fire department," reads:

(c) A person who violates subsection (b) of this section and causes significant bodily injury to the law enforcement officer, or commits a violent act that creates a grave risk of causing significant bodily injury to the officer, shall be guilty of a felony and, upon conviction, shall be imprisoned not more than 10 years or fined not more than $10,000, or both.
But the law contains another kind of APO, a misdemeanor, which most of us would probably not consider "assaulting" a police officer. It's more like what we think of as "resisting arrest."
(b) Whoever without justifiable and excusable cause, assaults, resists, opposes, impedes, intimidates, or interferes with a law enforcement officer on account of, or while that law enforcement officer is engaged in the performance of his or her official duties shall be guilty of a misdemeanor and, upon conviction, shall be imprisoned not more than 180 days or fined not more than $1,000, or both.
To be guilty of misdemeanor APO, someone might need to only "oppose" a law enforcement officer without cause. Courts have drawn a distinction between "passive" resistance, like slumping to the ground when being arrested in a protest, versus "active" resistance against the officer's actions. That's why the court overturned a conviction in Ava Howard v. United States (#4 in the quiz), where a trial court only found Howard guilty of refusing to sit down and take her hands out of her pockets.

Riot image from 1000 Words /

When it's really just resisting arrest

But in other cases, the Court of Appeals has upheld APO convictions even without evidence of actions that the average person might consider "assault." In Dolson v. United States, Dolson ran from police and went to his own house, where he went inside a chain link fence. Dolson pushed the gate closed while the officer tried to push it open. The Court of Appeals upheld Dolson's conviction just based on this action, finding it constituted misdemeanor APO.

In Coghill v. United States, the court upheld a conviction for misdemeanor APO. Coghill was stopped by police while driving a car and refused to let police search it. He got out of the car at their instruction, but at some point got back in. Officers tried to drag him out of the car, but he braced himself against the floorboards and gripped the steering wheel.

The court held that it counts as "assaulting a police officer" just to be "actively interposing some obstacle that precluded the officer from questioning him or attempting to arrest him" and upheld Coghill's conviction.

Why does this matter?

If someone is convicted of misdemeanor APO, a future employer might look at their record and think they're quite a violent person if they assaulted a police officer. But they might have just panicked and resisted, without even touching or hitting an officer.

If the police respond to someone resisting arrest by savagely beating him or her on the ground, as has happened in some places, it can be very difficult to file a civil rights lawsuit with a conviction for "assaulting a police officer," even if it's again not really what most people consider "assaulting."

In one incident, New Jersey police beat a Rutgers student who was lying on the ground, all the while yelling "stop resisting." And in 2011, a shocking video showed transit police roughly dragging Dwight Harris, a homeless man in a wheelchair, out of his chair. They charged him with APO, but dropped the charges after the video surfaced.

It's important to keep in mind that some people really do hit police officers, and many who do should be prosecuted. Legally, "assault" also covers more than just physically punching; it includes spitting on someone or threatening to cause physical injury, for example.

Dolson, for instance, did end up hitting an officer in the face and breaking his nose later on, after the chain link fence shoving match. Neighbors say this was self-defense and the officer was choking Dolson. Without video, we can't really know.

If there hadn't been video of Dwight Harris, the charges might have stuck, too. This is the same pattern we've been seeing in high-profile cases around the country, where the presence of bystanders with camera phones belies a police claim of why they had to hit, shoot, or even kill someone.

(Disclosure: My wife works for the DC Public Defender Service. She did not work on any of the cases listed in this article, and nothing here represents the official opinion of the Public Defender Service.)

Cheh's bill makes APO into two offenses

Among other changes, Mary Cheh's bill deletes the "assaults, resists, opposes, impedes, intimidates, or interferes with a law enforcement officer" language. Instead, it creates two, separate misdemeanor offenses, both punishable to the same degree (up to $1,000 or six months in prison).

One, Assaulting a Police Officer, would get narrower. Instead of "assaults, resists, opposes, impedes, intimidates, or interferes with a law enforcement officer..." the law would read just "knowingly assaults a law enforcement officer." Someone accused of this would also have the right to a jury trial.

But the bill also adds language saying, "A person may not intentionally resist a lawful arrest; or prevent an individual who the person has reason to know is a law enforcement officer from making or attempting to make a lawful arrest or detention of another person."

It'd still be illegal, and a misdemeanor, to resist arrest. However, this would only apply while an officer is trying to make a "lawful arrest," not at any time whatsoever as under current law.

That's not all

APO and resisting arrest represent just one of the sections of the bill. Another would codify and expand prosecutors' duty to turn over evidence, especially evidence that could help the defendant. One section would make more information available to the Office of Police Complaints, which handles—you guessed it—complaints against police.

Another would set stricter standards for how police get eyewitnesses to make identifications, ensuring that if the witness is looking at a set of photos, for instance, the process doesn't unfairly bias the witness toward picking out the person the police have in mind.

This bill is just one of many that councilmembers introduced at the latest legislative session. Kenyan McDuffie (Ward 5) now chairs the judiciary committee and will decide whether to hold a hearing on the bill. If he does (and he ought to), prosecutors and/or police may oppose some provisions, and the legislative process will determine what, if anything, becomes law.


To bike without worrying about nearby cars, I'm happy on the MBT

In recent years, a number of people riding bikes on the Metropolitan Branch Trail have been robbed or assaulted. But the trail is still a generally safe and, compared to city streets, comfortably pleasant place to ride.

A pedestrian bridge went up over the MBT at Rhode Island Avenue in December. Photo by Ranpuba on Flickr.

Recently, a neighbor of mine was riding on the MBT when they saw some young people in ski masks. This understandably prompted fear that they were about to get mugged, so they turned around and got off the trail as quickly as possible, warning other cyclists about the potential danger ahead. My neighbor later emailed our list serve vowing never to ride the trail alone again. Others replied with claims that the MBT is "not safe and never will be."

I use the MBT at least five days a week, during both morning and evening rush hours. I use it on the sunny days when the MBT is full of people and I use it on the cold, rainy days when I often only see one or two other people on the trail. I also use it at night if I am coming home from a friend's house or bar.

Sometimes I'm lucky enough to ride with one or two other people, but I usually ride alone.

I don't want to downplay someone's fear or dismiss their feelings. But I do want to counter the idea that a robbery (or even a handful of robberies) means that the MBT is unsafe.

To me, city streets feel far more dangerous than the MBT

I feel unsafe while riding on Michigan Avenue during rush hour, especially with the potholes that sometimes mean I have to swerve at the last second not to hit a six-inch bump. I'm afraid that I will get hit by a busy driver who is texting or talking on their phone as they come around the turn near South Dakota Avenue.

I feel unsafe crossing the Franklin Avenue bridge, where drivers seem convinced that they fit in the lane with me. They probably don't know that the right half of the lane is filled with broken glass and grates that could easily catch a bike tire. I feel afraid that I will get side-swiped by someone who sees me too late and instead of slowing down, decides to change lanes and doesn't make it all the way over before hitting me.

The end of my commute means getting off the trail and riding on Florida Avenue for one block before I turn onto P Street NE. That block is the scariest part of my commute. I have to take one hand off my handlebars to signal my intention to turn left, which means I have half as much control over my bike. I hear cars whizzing up behind me, and I pray that the car coming up behind me is in the right lane rather than mine.

I see the MBT as a safe haven

To me, the MBT is a sanctuary. For 15 minutes, I can stop being afraid of a car hitting me. When it's snowy or a little bit icy, I can ride my bike anyway because if I wipe out, I'll get scraped up but I won't get run over by a car passing me by at 30 mph.

This is what I tell my friends who are afraid to ride on the MBT: I feel a much more real and present danger of getting hit by a car when I ride on the streets than I do of getting mugged by some punk kid on the trail.

According to Lauren Cardoni, an associate at Nelson\Nygaard, 37 reported crimes happened within 100 feet of the trail in 2014; in 2013 there were 26. The stretch of Rhode Island Avenue between 7th Street NW and 2nd NE, by comparison, had 301 reported crimes in 2014 and 244 in 2013.

While Cardoni noted that the crime locations in this data aren't completely precise, just looking at them as approximations gives some valuable perspective.

Yes, I keep my eyes open when I'm riding the MBT. Yes, I am ready to turn around if I see a group of kids split up on either side of the trail. I am aware of the dangers, I am on the lookout, and I am ready to call the police if I feel unsafe.

But to me, getting hit by a car is a lot scarier than getting mugged.

The NoMa Business Improvement District is currently running a survey on MBT safety, and they're hosting a workshop on the trail tomorrow, from 5-8 pm. Note that the workshop was previously scheduled for today, but it's been moved because of a forecasted thunderstorm.

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