Charging R/D/O: Alleging the Duty the Officer Was Discharging

I was teaching a class about charging documents recently when the conversation turned to the rule that a charge of resisting, delaying, or obstructing a public officer in violation of G.S. 14-223 must describe the particular duty that the officer was discharging at the time of the resistance. A member of the class asked whether it would suffice to describe the duty as “protecting and serving.” I gave my best guess about the answer but I thought I would see how others react to the question. So take the poll below, then read the rest of the post for a little history about the rule, a summary of a recent case, and a discussion of authority about the sufficiency of a general description like “protecting and serving.”

When charging R/D/O is "protecting and serving" a sufficient description of the duty the officer was discharging?

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The rule has a long history. The earliest case that I could find that states the rule clearly is State v. Eason, 242 N.C. 9 (1955), where the court ruled that an indictment purporting to charge a violation of G.S. 14-223 was fatally defective because it did not “indicate the official duty [the officer] was discharging or attempting to discharge.” Many other cases decided around the same time reflect the same holding, suggesting that the charging practices of the day often varied from the rule. See, e.g., State v. Stonestreet, 243 N.C. 28 (1955) (ruling that an indictment was “fatally defective [because] it fails to charge the official duty the designated officer was discharging or attempting to discharge.”).

The rule has been reaffirmed many times over the years. For example, in State v. Dunston, 256 N.C. 203 (1962), the court deemed an indictment defective because “the bill fails to charge the official duty the named officer was discharging or attempting to discharge.” And in State v. Wells, 59 N.C. App. 682 (1982), the court ruled that a citation was fatally flawed where it alleged that the defendant resisted “a state patrolman performing the duties of his office by striking said officer with his hands and fist,” without specifying the duty the officer was performing.

A recent case reaffirms the rule. Just last month, in State v. McNair, __ N.C. App. __, 797 S.E.2d 712 (2017) (unpublished), the court of appeals ruled that a citation charging R/D/O was defective because it alleged only that the officer was “discharging and attempting to discharge a duty of his office,” without further specifying the duty that the officer was discharging. This result is noteworthy in light of the court’s ruling in State v. Allen, __ N.C. App. __, 783 S.E.2d 799 (2016), that citations are not held to the same formal standards as other pleadings.

Assaulting an officer is different. The rule regarding R/D/O does not extend to charges of assaulting an officer. Various statutes criminalize assaults on officers. See G.S. 14-33(c)(4) (making it a misdemeanor to “[a]ssault an officer . . . when the officer . . . is discharging or attempting to discharge his official duties”); G.S. 14-34.5(a) (making it a felony to “assault with a firearm . . . a law enforcement officer . . . while the officer is in the performance of his or her duties”); G.S. 14-34.7(a) (making it a felony to “assault[] a law enforcement officer . . . while the officer is discharging or attempting to discharge his or her official duties”); G.S. 14-258.4 (making it a felony for a prisoner to throw bodily emissions at a custodial officer “while the [officer] is in the performance of [his or her] duties”). When charging these offenses, it is not necessary to allege the specific duty in which the officer was engaged. State v. Waller, 37 N.C. App. 133 (1978) (so holding, and reasoning that “[a]n assault upon an officer while he is discharging or attempting to discharge a duty of his office is an offense . . . [t]he particular duty the officer was performing when assaulted is not of primary importance,” unlike in the R/D/O context); State v. Kirby, 15 N.C. App. 480 (1972) (same).

Other states are divided. I found this subject sufficiently intriguing that I spent a few minutes looking for out-of-state cases. Yes, I’m a nerd. Anyhow, Utah appears to follow the same rule. State v. Beckdorf, 10 P.2d 1073 (Utah 1932) (“Being in the performance of one of [an officer’s] duties was the substance of the offense and material to its description. . . . The specific duty attempted to be discharged and to which resistance is offered should be alleged in the information.”). But Florida doesn’t. Johnson v. State, 433 So.2d 648 (Fla. Ct. App. 1983) (“Appellant further argues that the amended complaint was insufficient because it did not allege the particular legal duty the officers were performing at the time the appellant obstructed them. This was not required. The information, couched in the language of the statute, sufficiently expressed the elements of the offense[.]”). Similarly, in Illinois it is sufficient to allege generally that the officer was “in the performance of his duties as a peace officer.” People v. Pickett, 340 N.E.2d 259 (App. Ct. Ill. 1975).

Is “protecting and serving” OK? The question that started my research was whether “protecting and serving” is an adequate description of an officer’s duty. During the course, I said I didn’t think it would be. This morning, I was relieved to find a case on point that supported my response. In State v. Tomlinson, 230 N.C. App. 146 (2013) (unpublished), the court ruled that a warrant describing the officer’s duty as “to serve and protect” was too general and abstract: “While this phrase may accurately describe the noble aspirations and goals of our police and other law enforcement officers in the most general manner, we hold that it does not adequately describe the particular duty [the officer] was attempting to perform at the time of [the defendant’s] actions. The warrant alleging RDO was thus fatally defective.”). I would expect descriptions like “enforcing the laws of North Carolina” or “working as a police officer” to meet the same fate on appeal.

Of course, the description need not be extremely detailed. See In re C.L.Y., 229 N.C. App. 491 (2013) (unpublished) (finding a juvenile petition sufficient where the duty was described merely as “arrest”); State v. Claros, 226 N.C. App. 201 (2013) (unpublished) (finding an indictment sufficient where the duty was described as “conducting an investigation”); In re D.R.W., 189 N.C. App. 403 (2008) (unpublished) (finding a juvenile petition sufficient where the duty was described as “tak[ing] the juvenile into custody” and ruling that it is not necessary to allege why it was the officer’s duty to take the juvenile into custody).

What if the description is insufficient? The state has a variety of options for fixing erroneous charging language. Depending on the stage of the case, the state may supersede the charging document in various ways or may dismiss the case and re-charge the defendant using proper charging language. One thing the state can’t do is add a specific duty by amendment. State v. Davis, 157 N.C. App. 573 (2003) (ruling that an R/D/O indictment may not be amended to add a specific duty, as that would “substantially alter[] the charge” by “supply[ing] an essential element of the offense”).

9 thoughts on “Charging R/D/O: Alleging the Duty the Officer Was Discharging”

  1. To rule otherwise would allow officers to compel obedience to their orders outside the scope of their official duties. Reminiscent of general warrants.

  2. I had a recent case involving an extremely drunk woman on the street being “assisted” by LEO. She got mad and pushed him and he charged her with RDO. The duty was “providing medical care.” The ADA and I argued about it for weeks, but before I could file a motion to dismiss or quash, he canned it anyway. I was actually looking forward to arguing that a LEO is not trained to provide medical care and therefore that couldn’t fall within his “duties.” Oh well.

  3. Law enforcement officers don’t ‘serve and protect’.

    THIS is the Oath of Office;

    “I, [NAME], do solemnly swear (or affirm) that I will support and maintain the Constitution and laws of the United States, and the Constitution and laws of [State] not inconsistent therewith, and that I will faithfully discharge the duties of my office as a law enforcement officer of the [Name of Department] so help me God.”

    And anyway, it’s not hard to articulate just what you were doing at the time; “effecting a legal arrest”, “directing traffic”, “serving an arrest, search warrant, order for arrest”, it need not be complicated.

    If any repetitious standard need be used then simply put …discharging and attempting to discharge a duty of his office,to wit; “maintaining the Constitution and laws of the United States, and the Constitution and laws of North Carolina” which sufficiently articulates all duties of the office.

    We are sworn to enforce law, NOT that “serve and protect” nonsense generated by California liberals. That was nothing more than a radio contest by the Los Angeles Police Department in the 1950’s for a slogan for them. It is nothing more than a LIBERAL attempt to try to exert some measure of control over law enforcement. It’s bovine fecal matter. Go ahead and google it.

    It is through the enforcement of the laws legislated by society and the U.S. Constitution as a whole that an area of peace and safety is developed and maintained in which you, the citizen, can live your life in a relative measure of security.

    You also might be interested in:

    The police have no general duty to protect. Warren v. District of Columbia (444 A.2d. 1, D.C. Ct. of Ap. 1981) is an oft-quoted District of Columbia Court of Appeals (equivalent to a state supreme court) case that held police do not have a duty to provide police services to individuals, even if a dispatcher promises help to be on the way, except when police develop a special duty to particular individuals. Because the police have no general duty to protect individuals, judicial remedies are not available for their failure to protect. In other words, if someone is injured because they expected but did not receive police protection, they cannot recover damages by suing (except in very special cases). Despite a long history of such failed attempts, however, many, people persist in believing the police are obligated to protect them, attempt to recover when no protection was forthcoming, and are emotionally demoralized when the recovery fails. Legal annals abound with such cases.

    And it has ALWAYS been this way.

    • J.W. Schrecker –

      I don’t think specifying the duty as “maintaining the Constitution and laws of the United States, and the Constitution and laws of North Carolina” is sufficient. It isn’t much different than simply stating that the officer was performing or attempting to perform his duties. It does not put the accused person on notice of what duty of the officer’s the accused person was supposed to have obstructed. The duty should be alleged sufficiently so if it was not actually a legitimate duty (for example if officer trying to buy a hot dog for lunch and some jerk is heckling the officer – buying a hotdog isn’t a duty) that the accused can make that argument. The accused must be informed within the charging instrument of facts specific enough so that he can defend against the accusation. Otherwise the accused doesn’t know what to defend against. Also the government could repeatedly charge the accused with the same thing. If you can’t say what you’ve been charged with (what the specific duty of the officer was), you can’t show that you’ve been charged with it before.

      • Well I not exactly inclined to make a defense attorney’s job any easier for them than it already is but like I also wrote:

        “…it’s not hard to articulate just what you were doing at the time; “effecting a legal arrest”, “directing traffic”, “serving an arrest, search warrant, order for arrest”, it need not be complicated.”

        It certainly doesn’t have to be some long drawn out explanation that gives a defense attorney more ammunition to attack than they already have.

      • Oh, I almost forgot…

        …discharging and attempting to discharge a duty of his office,to wit; “maintaining a police presence in a business location to deter crime” is a legitimate function, or duty, of a law enforcement officer even if he or she is buying/consuming a hotdog.

        It’s all in HOW one articulates it…isn’t it counselor?

        And it would be up to a judge or jury to accept or decline the premise in the end. Not what you or I ‘think’.

  4. I’m an officer and I’d never use this description. I always specifically cite what I was doing (investigating a disorderly subject, investigating a breaking and entering, investigating DWI, attempting to detain a subject, etc)

  5. I would love to hear a discussion of whether company police can charge Resisting a Public Officer when they are simply hired police. Charlotte uses G4S to patrol the light rail and Charlotte Transit Center.

  6. There are far too many cases of officers charging citizens for ” obstruction ” for nothing more than using a camera or refusing to submit to interrogation and remaining silent. As long as police continue to coerce compliance without legal authority by threat of or actually improperly charging someone under this statute the courts must insist on proof that a lawful and valid police action was taking place, not just a shakedown of a citizen for information or to ” ID ” them without reasonable and articulable suspicion . Anything an officer considers an impediment to his goals, as he alone chooses to pursue them, is considered an affront and is in many cases the only reason for a spurious charge of this type. Good for the courts to demand particularity; someone has to guard the walls.


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