CALL OR TEXT FOR THE HELP YOU NEED NOW Call559.540.8899 Text559.233.8886

An Arresting Affair

Yesterday, I was sitting in court waiting for a case to be called when I became aware that the accused minor in custody was in the process of making an admission to a crime.

What caught my attention is the nature of the crime.

The minor was apparently arrested for the crime that — and here I have to quote the judge verbatim because otherwise I don’t really know what to call the crime — “he delayed the officer being able to make contact with him.”

That’s right. According to what was said in court, a police officer wanted to talk to the minor. The minor apparently knew that the officer wanted to talk to him and the minor walked away from the officer.

Now I don’t know the details of this case. It wasn’t my case. I didn’t see the police reports. But what I’ve written above is what was said in court. When the judge asked the minor to allocute, the minor began a story that — frankly — sounded to me like he was saying the only thing that happened was the police officer called his name and he walked away because he didn’t want to talk to the officer.

The charge was a violation of Penal Code section 148(a)(1), which reads:

Every person who willfully resists, delays, or obstructs any public officer, peace officer, or an emergency medical technician, as defined in Division 2.5 (commencing with Section 1797) of the Health and Safety Code, in the discharge or attempt to discharge any duty of his or her office or employment, when no other punishment is prescribed, shall be punished by a fine not exceeding one thousand dollars ($1,000), or by imprisonment in a county jail not to exceed one year, or by both that fine and imprisonment.

WTF?! Delays?!

Since “delays” is in there, the judge’s words accurately describe a potential crime. But, seriously, the cop wants to talk to you and you clearly don’t want to talk to him so you walk away, and that’s against the law? Yet that’s all it can be: too often I see this “crime” charged by itself. Usually, in most courtrooms, the crime is described as “resisting arrest.”

The problem is that, as here, the obvious question — “what ‘arrest’ was being resisted?” or “what was the basis for the arrest?” — is seldom given a good answer an answer that makes sense.

In this instance, the kid was basically arrested for not wanting to talk to a police officer. Does the law really require a person to talk to a police officer?

If it does, that law is unconstitutional. Consider, first off, that under the obscure and little known legal doctrine of the so-called “Miranda warning,”

You have the right to remain silent. Anything you say can and will be used against you in a court of law. You have the right to an attorney. If you cannot afford an attorney, one will be appointed to you. Do you understand these rights as they have been read to you?

So if you don’t want to talk to a police officer, you don’t have to do so. You have the right to remain silent.

Secondly — and, as I said, I don’t know all the details of this case, but I did hear what the kid was saying during his allocution, until it was stopped because it was going down a “I didn’t do anything illegal” path — there is no legal requirement that a person remain in the presence of a police officer when one does not want to do so, unless the officer has specifically ordered you to stop and remain in his presence. However, as noted above, even if you are ordered to stop, there is no requirement that you then talk to the police officer. (Certain exceptions regarding providing your identity under certain circumstances apply.) Normally, if the police walk up to me and start chatting, I have every right under the law to just walk away. Normally, if I’m ordered to remain in the presence of the police officer, I have “the right to remain silent.”

At least, that’s what I’ve always believed and told people.

The United States Constitution seems to support that, as well. The Fifth Amendment, for example, is usually interpreted as indicating the aforementioned right to remain silent. The Amendment itself arguably limits itself to “criminal cases,” but I have a hard time believing that police officers have a right to force me to discuss the weather with them.

The First Amendment would appear to provide a basis for this, as well. The constitutionally-protected right to freedom of speech has more than once been interpreted to include freedom from speech. Admittedly, this usually means freedom from being forced to say specific things, like having a license plate that communicates a message of which you disapprove. I see no reason it shouldn’t include the freedom from having to speak to particular types of people. Similarly, the freedom to associate includes the freedom to choose with whom not to associate.

Then, of course, there are so-called penumbral rights — a misnomer to anyone who actually knows how to read (as in, hey, judges, how about you start reading the Constitution for a change?) — which include the right to privacy and the right to be left alone. I shouldn’t have to become a hermit to be able to avoid contact with people I don’t wish to contact; going out on the street doesn’t mean I’m inviting a conversation with every Tom, Dick and Harriett I pass along the way.

Nor am I simply the oddball criminal defense attorney holding this viewpoint from an overzealous dislike of law enforcement. Numerous attorneys both in Fresno, where I practice criminal defense, and across the country — I communicate with the latter via Twitter, blogs, or email — are apparently of the belief that if you don’t want to talk to a police officer, you can walk away when an officer attempts to talk to you. In fact, the response to my “tweeting” about the minor “admitting” to a crime for not wanting to a police officer was met with responses like,

  • “That’s a statute in CA?”
  • “!!!?!”
  • “:-/ that’s frustrating.”


But apparently the law in California is that you can be charged with a crime where the only crime is not allowing an officer to try to talk to you.

If the officer “has a legal right” to do so, then the officer may detain anyone. If you know that he’s trying to detain you, then — believe it or not — you have a “duty to permit [your]self to be detained.” (People v. Allen (1980) 109 Cal.App.3d 981, 985 [167 Cal.Rptr. 502], emphasis added.)

Even more remarkable, the officer doesn’t have to tell you that he’s trying to detain you. In the Allen case just cited, the officer never said a word; he was in a police car. The defendant-appellant in that case was assumed to know the police officer wanted to talk to him:

Appellant knew full well, and counsel conceded so at argument, that the officer’s attention was centered on him and that the officer wanted to talk with him. When appellant saw the police car he slammed the trunk lid down and took off at a high step. As he left the scene he continued to look back nervously toward the officers as he hurried away. Finally, as the officers closed in, he broke into a run and eventually attempted to hide from the officers. Bystanders knew appellant was aware of the officers’ desire and that appellant was attempting to escape from the officers. Officer Barron testified “…numerous subjects were pointing in the same direction, stating he was running from us.” Under the ambient circumstances here involved and the totality of facts of this case, we believe that it was unequivocally clear to appellant that the object of the police’s attention was appellant as an individual. (Allen, supra, 109 Cal.App.3d at 987.)

As stated more succinctly in a footnote, “Appellant could refuse to cooperate, but could not run and hide.”

So, yes, in California it is entirely possible to be arrested for walking away from a police officer who wants to make contact with you.

It is, of course, an utterly stupid rule when it allows a citizen who has committed no other crime except to believe he lived in a free republic to be arrested just because he did not wish to interact with the police. It clearly demonstrates that we do, indeed, live in a police state.

But until the citizens of the police state throw off the shackles of the police state — and, increasingly, that probably means until there is a bloody revolution — that’s the law.

At least in California.