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 __, 797 S.E.2d 712 (2017) (unpublished), the court of appeals ruled that a citation charging R/D/O was defective because it alleged only that the officer was “discharging and attempting to discharge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”).