This bulletin is intended to make police officers and municipalities aware of the potential civil liability associated with arresting individuals for obstruction of a public official when performing their police duties.
Introduction
Officers routinely encounter individuals who are disrespectful, challenge their authority and criticize their actions. General criticism of the police, even if expressed in abusive or disrespectful terms, is not obstruction and is generally protected free speech. The Supreme Court requires substantial justification before police can interfere with the right to free speech or make an unlawful arrest. Making inappropriate arrests of individuals for obstructing a police officer in circumstances where courts will find their actions to be merely an exercise of their First Amendment right to free speech can be counter-productive, both in terms of community relations and potential civil liability.
Oklahoma law
Oklahoma law provides that “[a]ny person who willfully delays or obstructs any public officer in the discharge or attempt to discharge any duty of his office, is guilty of a misdemeanor.” 21 O.S. § 540. The Oklahoma Court of Criminal Appeals defined obstruction of a public officer to mean “to oppose” the officer. Knoff v. State, 192 P. 596, 597, 1920 OK CR 187. “It does not mean to oppose or impede the process with which the officer is armed, or to defeat its execution, but that the officer himself shall be obstructed.” Ratcliffe v. State, 158 P. 293, 1916 OK CR 65.
In 1988, the Oklahoma Court of Criminal Appeals, in Marsh v. State, 761 P.2d 915, 916, 1988 OK CR 206, held that there is no requirement that a defendant use physical force against an officer before he may be charged with violating 21 O.S. § 540. In fact, “words alone may suffice to support a conviction of obstructing an officer.” Trent v. State, 777 P.2d 401, 402, 1989 OK CR 36.(1) These rulings have broadened the definition of obstruction to include such acts as impeding an officer’s ability to serve a search warrant, using profanity at an officer, giving an officer false information, questioning an officer’s authority, inciting others dealing with an officer, or refusing to accept a ticket from an officer.
The Oklahoma Courts interpret 21 O.S. § 540 to allow for any type of interference with police work, whether physical or verbal. However, the decision to arrest an individual for obstruction must be reasonable based on the circumstances of each case. Unfortunately, with that discretion comes a higher degree of potential civil liability because what an officer may deem as obstruction of his duties, an individual may deem as exercising their constitutional rights to freedom of speech or rights to be free from unreasonable search and seizure. Individuals can file civil lawsuits in state or federal court against municipalities and/or police officers if they feel their constitutional rights have been violated. These lawsuits are usually filed under federal statute, 42 U.S.C. § 1983 and are commonly referred to as Section 1983 lawsuits.(2)
Lawful arrest
In Oklahoma federal courts, officers have been successful in defending against Section 1983 lawsuits for arrests made pursuant to 21 O.S. § 540. For example:
In Koch v. City of Del City, 660 F.3d 1228 (10th Cir. 2011), an officer was dispatched to a residence to check on the subject of a “pickup order” under the Protective Services for Vulnerable Adults Act. The officer understood the order directed authorities to locate Ms. Lance and take her into custody. The order specifically directed Ms. Koch, a friend to Ms. Lance, to immediately disclose the whereabouts of Ms. Lance and authorized the assistance of law enforcement to do whatever was necessary to find her. Officers went to Ms. Koch’s house to ask her if she knew where Ms. Lance was located. Ms. Koch refused to tell officers where Ms. Lance was located and advised officers to get off her property and call her attorney. Ms. Koch was arrested and charged with obstruction under 21 O.S. § 540 for refusing to answer questions regarding Ms. Lance’s whereabouts.(3) Ms. Koch then brought a Section 1983 civil action in federal court against the city and the officer, alleging false arrest. The federal court found that the officer had a reasonable basis to believe Ms. Koch had information about Ms. Lance’s whereabouts and was obstructing officers when she would not answer questions about Ms. Lance’s location.
In Ballard v. Frazier, 2008 WL 4447056 (N.D. Okla. 2008), Mr. Ballard was a passenger in a vehicle that was driving past an intersection where he observed two police officers attempting to arrest a suspect. Mr. Ballard exited the vehicle and yelled to the police officers to ‘stop beating that man,’ ‘he’s not resisting,’ and ‘he didn’t do anything.’ The officers instructed another officer to arrest Mr. Ballard while they struggled with the suspect. Mr. Ballard ran and was eventually taken into custody and charged with obstructing an officer. Mr. Ballard filed a Section 1983 lawsuit against the municipality and the officers alleging unlawful arrest. The court ruled in favor of the officers and said it was objectively reasonable for the officers to conclude that Mr. Ballard was interfering with the arrest by yelling at officers while they were attempting to arrest the suspect.
In Fitzgerald v. Board of County Comm'rs for County of Pottawatomie County, 2010 WL 1410979 (W.D. Okla., 2010), the sheriff’s office received a teletype from officials in Alaska listing Ms. New, the sister of Ms. Fitzgerald, as “missing person endangered” and her daughter as “missing person juvenile.” Sheriff’s deputies saw two adult females, a small child, and what appeared to be two teenagers walk into Ms. Fitzgerald’s house. Deputies went to the door and told Ms. Fitzgerald he was there to take a child. Ms. Fitzgerald would not confirm or deny the presence of Ms. New or the child in her home and denied deputies entry into her home. The deputies contacted the judge, who gave the authorization to forcibly enter the home and check on the welfare of the missing child. Ms. Fitzgerald was handcuffed while the deputies searched the home, locating Ms. New, her daughter, and Ms. Fitzgerald's two children in the attic. Ms. Fitzgerald was arrested and charged with obstructing an officer in violation of 21 O.S. § 540. Ms. Fitzgerald sued the county and the deputies under Section 1983 alleging false arrest. The district court found in favor of the deputies and stated the deputies had probable cause to arrest Ms. Fitzgerald because she obstructed and delayed their attempts to locate and ascertain the safety of the missing individuals.
In Brandon v. Moore, 2012 WL 569163 (N.D. Okla., 2012), a deputy sheriff noticed a car parked on the side of the road with its lights on and engine running. At the time of the incident, the deputy was aware of a series of thefts in the area. The car was occupied by Ms. Brandon who advised the deputy that she had pulled over to finish a telephone call. Ms. Brandon became angry when the deputy wanted to verify her drivers’ license and insurance. While attempting to contact his supervisor to confirm that he could release Ms. Brandon without completing an investigative detention report, she exited her car and approached the deputy’s car yelling “give me back my f***ing license.” The deputy advised Ms. Brandon multiple times to return to her vehicle or she would be arrested. Ms. Brandon continued to approach the deputy and was arrested for obstructing an officer. She sued the deputy in federal court for unlawful arrest. The Court stated a reasonable officer in this situation could have concluded that Ms. Brandon was interfering with his duties by preventing him from contacting his supervisor in order to complete the investigative detention and by obstructing his efforts to secure the safety of the scene.
Unlawful arrest
However, there have been cases in Oklahoma and other jurisdictions where courts have found public officers to have acted unreasonable when arresting individuals for obstructing an officer. For example:
In Guffey v. Wyatt, 18 F.3d 869 (10th Cir. 1994), a police officer requested Mr. Guffey, a basketball referee, to call more fouls in an attempt to settle the crowd and avoid a riot by the agitated fans. In response Mr. Guffey stated “you don’t have any business out here on the basketball court.” The officer arrested Mr. Guffey for obstructing an officer in violation of 21 O.S. § 540. Mr. Guffey sued Officer Wyatt under Section 1983 claiming his constitutional rights were violated. The Tenth Circuit Court of Appeals, using the reasonable officer standard, found that “while plaintiff’s words may have irked the officer, the defendant ‘may not exercise the awesome power at his disposal to punish individuals for conduct that is not merely lawful, but protect by the First Amendment right to free speech.”(4)
In Tinsley v. City of El Reno, et al., CIV-10-636 (W.D. Okla., 2011), officers contended that Mr. Tinsley violated 21 O.S. § 540 by interfering with the detention of his grandmother, specifically, telling officers not to “tase” his grandmother. Mr. Tinsley was arrested for obstructing an officer. He later sued the city and the officers in a Section 1983 action alleging violations of his Fourth and Fourteenth amendment rights for being unlawfully seized. The district court found that if Mr. Tinsley was seized due to verbal criticism or challenge of police action, then he was arrested without probable cause to believe he committed the offense of obstructing a police officer.
In Storey v. Taylor, 696 F.3d 987 (10th Cir. 2012), officers responded to a report of a loud argument at Mr. Storey’s residence. When officers arrived they did not hear an argument and had no other reason to believe that a crime had been committed.(5) The officers knocked on the door and Mr. Storey answered, but refused to come outside. Officers then pulled Mr. Storey outside of his house, handcuffed him and placed him under arrest and charged with resisting, evading and obstruction of an officer. Mr. Storey sued the city and the officers under Section 1983 claiming his Fourth amendment rights had been violated. The Tenth Circuit Court of Appeals agreed with Mr. Storey and found that the problem with the arrest is that it relies on the assumption that the order to exit the house was lawful.
Conclusion
Title 21 O.S. § 540, gives officers the power to arrest individuals for obstructing a lawful order. However, the consequences for arresting an individual who is merely exercising their constitutional right to free speech or against unreasonable seizure could be costly to both the municipality and the officer. Officers must evaluate the facts of each arrest and decide what actions are appropriate for the situation. If the officer reasonably believes that the individual’s actions caused a delay or obstructed his/her ability to perform police work, then an arrest may be warranted. If the individual’s actions did not amount to obstruction, then officers should pursue other possible alternatives to arrest. If an officer can show that his/her actions were reasonable under the circumstances, then there is a greater likelihood of success in court if a lawsuit were to arise out of the incident.
(1) In Marsh, the defendant was charged with negligent homicide after backing over a child who had been riding in the back of his pick-up truck. The defendant gave a false statement to the investigating officer. The officer charged defendant with obstructing an officer in violation of 21 O.S. § 540. Trent v. State, 777 P.2d 401, 402, 1989 OK CR 36 (the court affirmed a conviction where it found the defendant had “harassed” and “hindered” an officer, frustrating his attempts to remove a vehicle from the road and delaying a blood alcohol test).
(2) Constitutional protected rights include free speech under the First Amendment rights, the Due Process Clause and the Equal Protection Clause of the Fourteenth Amendment, or unreasonable search or seizure under the Fourth Amendment. There is no cap on damages in a § 1983 lawsuit and a plaintiff may be awarded punitive damages against an officer, if he can show that the officer’s actions were motivated by reckless indifference to the federally protected right.
(3) The officer referenced other potential bases for his conclusion that Ms. Koch was committing obstruction. In particular, he cites Ms. Koch’s statements to him to get off her property and talk to her attorney, which the officer equated with an attempt to send him on a “fool’s errand.” The court did not believe that a reasonable officer could have viewed either of these statements as constituting obstruction.
(4) While words alone may violate § 540, the nature of the utterances remain critical to the constitutional analysis. The First Amendment protects a significant amount of verbal criticism and challenge directed at police officers, but only words that inflict or tend to incite immediate breach of peace. (citing City of Houston, Tex. v. Hill, 482 U.S. 451, 461 (1987) and Chaplinsky v. New Hampshire, 315 U.S. 568, 572 (1942).
(5) “A report of a domestic argument – standing alone – does not demonstrate exigent circumstances per se. United States v. Davis, 290 F.3d 1239, 1244 (10th Cir. 2002).
Authority to Arrest was written by Suzanne D. Paulson, OMAG Associate Counsel. You may contact the author at spaulson@omag.org. The information in this bulletin in intended solely for general informational purposes and should not be construed as or used as a substitute for legal advice or legal opinions with respect to specific situations, since such advice requires an evaluation of precise factual circumstances by an attorney. OMAG does not represent or endorse any group, site or product that may be mentioned in this article. Download this publication from our web site: www.omag.org.
September 2013
