Deadly Force and Resisting a Public Officer

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The N&O series: Deadly Force. Today the News and Observer published the last article of its four part investigative series Deadly Force, a series that chronicles numerous physical confrontations between Harnett County sheriff’s deputies and citizens and the deaths and injuries that resulted.

The first article in the series recounted the events leading to John Livingston’s death. Sheriff’s deputies investigating a minor assault knocked on the door of Livingston’s home at 3:40 a.m. Livingston opened the door and one of the deputies, Nicholas Kehagias, leaned into the door frame and put his foot on the threshold. Kehagias told Livingston who he was looking for. Livingston told the deputy neither person was there. Kehagias reportedly said he wanted to look inside. Livingston asked if he had a search warrant. He did not. Livingston said he was going to bed and tried to slam the door closed. The door hit Kehagias’s foot and arm. Believing that he had been unlawfully assaulted, the deputy rushed inside and tried to arrest Livingston. Livingston resisted. Kehagias used his Taser on Livingston. A scuffle ensued. Livingston picked up the Taser and pushed it into Kehagias’s chest. Kehagias shot Livingston three times. He died before paramedics arrived.

The second article in series described a physical encounter between another Harnett County resident and Deputy Kehagias. That encounter began when 66-year-old Michael Cardwell called 911 because he was having suicidal thoughts.  Three deputies, Kehagias among them, drove to Caldwell’s home in three separate patrol cars. Caldwell said he became nervous about the number of deputies on the scene and asked them to turn on a dash camera. He also asked for their names and asked if any of them were veterans. Cardwell said Kehagias pushed him to the ground and handcuffed him. When he resisted, Cardwell says Kehagias pushed his knee into his back and sprayed his face with pepper spray. Cardwell was eventually taken by ambulance to the hospital where he was treated for a fractured femur and a broken hip. Kehagias said Cardwell was drunk and cursing and had pushed him before Kehagias took him to the ground.

A warning sign. The Deadly Force series points to a “warning sign” that a certain Harnett County deputies were too often getting physical with suspects:  the number of times the deputies charged suspects with unlawfully resisting a public officer. The N&O reports that in 2014-2015, one squad of Harnett County deputies (of which Kehagias was a member) issued 63 charges of resisting a public officer. The next closest squad issued 39 charges. Five of those were after Kehagias joined its ranks.

What exactly is the crime of resisting a public officer?

G.S. 14-223 makes it a Class 2 misdemeanor to

(1) willfully and unlawfully

(2) resist, delay, or obstruct

(3) a public officer

(4) knowing or having reasonable grounds to believe the person is a public officer

(5) while the public officer is discharging or attempting to discharge a duty of his or her office.

State v. Dammons, 152 N.C. App. 284 (2003).

This crime often is referred to in short-hand as “RDO,” or “resist, delay, obstruct,” or as “resisting arrest” even though its scope is not limited to resisting an arrest but also includes any resistance, delay, or obstruction of an officer who is performing his or her duties. State v. Lynch, 94 N.C. App. 330, 332 (1989).

What it is. Thus, a person who through loud, raucous, and abusive language delays an officer’s attempt to continue an investigation by preventing him from interviewing a suspect or witness may properly be charged with violating G.S. 14-223. State v. Leigh, 278 N.C. 243 (1971). The same is true for a person who makes statements or engages in behavior that reflects a determination that he intends to prevent an officer from making a lawful arrest. State v. Singletary, 73 N.C. App. 612, 616 (1985). Obviously, physically struggling against an officer who is attempting to carry out a lawful seizure constitutes resisting a public officer, see State v. Lynch, 94 N.C. App. 330, 334 (1989), as does running away or hiding from such an officer, see State v. Ferebee, 177 N.C. App. 785 (2006); State v. Swift, 105 N.C. App. 550 (1992). In certain circumstances, refusing to provide information about one’s identity also can constitute resisting a public officer in violation of G.S. 14-223.  See State v. Friend, ___ N.C. App. ___, 768 S.E.2d 146, 148 (2014) (holding that the defendant’s refusal to provide his identifying information hindered the officer from completing a seatbelt citation and thus violated G.S. 14-223).

What it isn’t. On the other hand, merely “remonstrating with an officer” or “criticizing and questioning” him “in an orderly manner,” does not amount to obstructing or delaying an officer in the performance of his duties. Leigh, 278 N.C. at 251. A person likewise does not criminally obstruct or delay an officer if he advises another of her constitutional rights, such as the right not to respond to questions posed by the officer. Id.; Burton v. City of Durham, 118 N.C. App. 676, 680-81 (noting that “[c]ommunications simply intended to assert rights, seek clarification or obtain information in a peaceful way are not chilled by section 14-223”). Making a statement to an officer in good faith that later turns out to be false also is not a violation of G.S. 14-223, which requires willful resistance, delay or obstruction.

Moreover, every person has the right to terminate a consensual encounter with a law enforcement officer and to resist an unlawful arrest by using the force reasonably necessary to prevent it from occurring. Roberts v. Swain, 126 N.C. App. 712 (1997). A person likewise may resist an officer’s unlawful entry into a person’s home. State v. Sparrow, 276 N.C. 499, 512 (1970).

Gray areas.  Not surprisingly, suspects and officers don’t always agree about whether an arrest or other investigative conduct by an officer–and the ensuing resistance to that activity–is lawful. For instance, was it lawful for Detective Kehagias to lean into Livingston’s door frame and put his foot on the threshold?  Case law on that issue is mixed. Compare Dalcour v. City of Lakewood, 492 F. App’x 924, 934 (10th Cir. 2012) (unpublished) (“[B]ased on the extensive Supreme Court . . . precedent emphasizing the significance of any physical intrusion into a home, a reasonable officer should have known that placing a foot into the doorway amount to an entry of the home for Fourth Amendment purposes.”) with Smith v. City of Wyoming, __ F.3d __, 2016 WL 1533998 (6th Cir. 2016) (officer’s placing of his foot in the door during a knock and talk to briefly prevent the door from closing followed by his removal of the foot and the closing of the door did not violate clearly established law). It is clear, however, that a person is free to avoid altogether or to terminate at will a voluntary doorway encounter. Kentucky v. King, 563 U.S. 452, 470 (2011). Thus, it is difficult to conceive of how a person’s attempt to close the door of his or her residence in order to end the encounter could be construed as violating G.S. 14-223. Whether slamming the door in a manner that hit the officer constitutes an assault is less clear. Cf. Rodeman v. Foster, 767 F. Supp. 2d 1176, 1183 (D. Colo. 2011) (concluding that slamming the door on an officer after he crossed the threshold could not justify officer’s warrantless entry).

In Caldwell’s case, if he pushed Kehagias when he arrived, such behavior certainly could be deemed willful resistance to lawful investigation by a public officer. Caldwell’s reported request that a dash camera be activated and his questions about the officers’ names and veteran status, on the other hand, are the type of “peaceable and orderly” information-seeking that is not prohibited by G.S. 14-223. Singletary, 73 N.C. App. at 615.

Best practices. A former district attorney quoted in the Deadly Force news series, Branny Vickory, indicated that good, experienced officers will charge violations of G.S. 14-223 and assault on a government employee less frequently than other officers.

Statewide, there were nearly 25,000 charges of resisting a public officer in 2015. What’s the practice in your district?  Are resisting public officer charges levied sparingly or liberally?  Do you view them as a barometer for a law enforcement officer’s performance?

10 comments on “Deadly Force and Resisting a Public Officer

  1. Shea, can you comment on RPO as it pertains to company police? I know here in Charlotte company police are used, for instance, in patrolling the CATS bus depot. They tend to almost invariably charge RPO when arresting individuals, but I have an issue with the statute referencing “public officer.” Does RPO apply to company police?

  2. I have an issue with your statement of the facts in this matter. They are not correct. I should know I am the lawyer involved in this case and numerous cases in Harnett county regarding abuse by a small number of law enforcement officers that were allowed to do whatever whenever.

    • I’d like your take on the current state of the law and police practices as they relate to the amount of force necessary to restore order in a restaurant where customers and employees were arguing loudly and aggressively enough for someone to call the police. To what extent are officers bound to adhere to Police Manuals, assuming there are guidelines which (1) set out boundaries regarding the violence needed to quell disturbances and restore order, and which (2) require the least intrusive or least violent approach?

  3. A person who chooses to vocalize ad nauesum to an officer who has given them clear and concise lawful orders DURING an ongoing dangerous, violent or contentious incident their reasons as to why ‘they’ think they do not have to comply with those lawful orders do in fact resist, delay or obstruct an officer in the performance of their duties.

    No, we are NOT required to allow them to present their ‘court case’ in the street.

    I have found it very amusing to watch the antics of defense attorneys in court who can’t seem to understand this concept.

    We in law enforcement call it being stupid in a ‘no stupid’ zone.

    And any increase in frequency is the result of the nonsensical ‘social justice warrior’ mentality that pervades today’s society.

    An immutable fact is that it is the violator who determines the level enforcement applied in any given situation…NOT the law enforcement officer. The brutal truth is that it only hurts as much as you resist.

    The real problem isn’t police ‘brutality’ or abuses by the police. The real problem is we now have an entire generation of spoiled, entitled brats, who believe rules and laws don’t apply to them and parents who refuse to be parents and hold their ‘little hell spawn’ accountable for their behavior.

    The current generation needs to be retrained to understand that a citizen MUST comply with a law enforcement officer’s legitimate and lawful orders and if they have a problem with them the time to address it is IN COURT and not on the street.

    And though it does extremely rarely happen that an officer crosses the legal line, orders issued by a law enforcement officer are nearly always legitimate and lawful…especially in the midst of dangerous, violent or contentious incidents.

  4. So you think that law enforcement is responding incorrectly to out of control mental subjects and that the mental subjects are needlessly dying? Well I have a solution for that.

    Law enforcement isn’t the appropriate entity to be calling for these issues in the first place. Law enforcement’s job is to “enforce law”…not deal with what are clearly mental health issues which are the providence of the Mental Health disciplines.
    So here’s what you do; The COUNTY (or whoever is in control of emergency medical services) hires a team to crew one ambulance per EVERY 8 or 12 hour shift that is comprised of;

    • One Psychiatrist/Psychologist
    • One Attorney
    • Two UNARMED Security Guards
    • Two EMTs

    It will be the responsibility of this team to take ALL calls regarding ANY suspected mental health issues, whether they are armed or not such as naked person walking down the street…with a knife/gun. Law enforcement will NOT be sent to these calls because they have already been deemed incapable of handling these calls correctly by Psychiatrists/Psychologists and Attorneys.

    NOW; it will be the Psychiatrists/Psychologists and Attorneys who will get to show their professionalism and show us all how such matters are PROPERLY handled.

    No more will there be lengthy waits in the hospital tying up a bed because a fully trained and qualified Psychiatrist/Psychologist will be immediately on hand to make a determination whether the mental health subject is a “danger to himself or others” …as the mental health subject chases him or her around the house or yard with a butcher knife. The Psychiatrists/Psychologists who have been telling law enforcement for so long how to deal with such and that we don’t have to hurt them can now show law enforcement just how that is accomplished without any use of force. And of course the Psychiatrist/Psychologist will be the team leader.

    The attorney will be a very valuable asset to the team because they will be there running alongside of the Psychiatrist/Psychologist giving them advice on how to NOT violate the mental health subject’s rights…as they are chased by the knife wielding mental health subject. Yes, the Attorney is there to keep the County out of trouble with lawsuits and to protect the rights of the knife wielding mental health subject… as they are chased by the knife wielding mental health subject. But this should be no problem for the Attorney. Remember, they’re all the time telling law enforcement what they did wrong…so the Attorney knows how to do it just right of course.

    The two UNARMED security guards? Why they are there to keep anybody from interfering with the Psychiatrist/Psychologist and the Attorney. Why no…they will NOT be assisting the Psychiatrist/Psychologist and Attorney because that would violate one of the most common complaints, that there would be 3, 4, 5 on one and that’s WRONG! No, the Psychiatrist/Psychologist and Attorney should be just fine dealing with the knife wielding mental health subject because they have told us all so many times how law enforcement “should” have done it…without so many people.

    The two EMTs? They stay inside the locked ambulance until the Psychiatrist/Psychologist and Attorney have the knife wielding mental health subject under control and properly restrained as appropriate to the incident. Only then are they to exit the ambulance and treat injuries (But, of course there won’t be any – since the Psychiatrist/Psychologist and Attorney know what they’re doing). In cases where gunshots or a gun is reported they will park a block away from the address and the Psychiatrist/Psychologist, Attorney and Unarmed Security Guards can walk the rest of the way.

    Oh, don’t worry about the Unarmed Security Guards , Psychiatrist/Psychologist and Attorney, the Psychiatrist/Psychologist and Attorney are professionals and know how to “talk” down a violent knife or gun wielding mental health subject safely as they so often insist that law enforcement should be able to do.

    The cost? Why the offsets of what would certainly be a reduction in lawsuits, wasted officer hours sitting in a hospital for a mental commitment, and simply thinking of the value of a life makes the cost completely acceptable.
    It’s time we put the “Professionals” where they will do the most good.

  5. The above Officer could be the poster child for what has been happening in Harnett. Check out his facebook page just hit his name in the above comment

    • You weren’t kidding. It reads like a KKK member’s MySpace page.

  6. Apparently Mark thinks that Frederick Douglas was a KKK member simply because of this comment by Frederick Douglas. I’d be interested in seeing how Mark justifies his position on realizing that Frederick Douglas was a BLACK American social reformer, orator, writer and statesman:

    “What shall we do with the Negro? I have had but one answer from the beginning. Do nothing with us! Your doing with us has already played the mischief with us. Do nothing with us! If the apples will not remain on the tree of their own strength, if they are wormeaten at the core, if they are early ripe and disposed to fall, let them fall! I am not for tying or fastening them on the tree in any way, except by nature’s plan, and if they will not stay there, let them fall. And if the Negro cannot stand on his own legs, let him fall also. All I ask is, give him a chance to stand on his own legs! Let him alone!” ~~ Frederick Douglas.

    But I have no problem with Mark citing just how I’m ‘KKK’-esque or racist.

    You’ve made the allegation Mark, now all you have to do is justify it. That’s right….I don’t back away in knee-jerking fear at that allegation anymore no matter how loud the howling, whining or screeching of it. Now you have to articulate it or it doesn’t have any effect what-so-ever….other than your looking like a moron. Besides, it is those of YOUR ilk who state that BLACK MEN like me can’t be “racist” anyway.

    We are all waiting in avid anticipation to hear you articulate with specificity just HOW I’m racist or biased in accordance with any court accepted definition of racism or bias. In case you don’t have the definition, here;

    Racism/Bias: The performance of an act based on a preconceived opinion, not based on objective reason or experience, that all members of a race or ethnicity possess a non-biometric characteristic or ability specific to that race or ethnicity, so as to unfairly differentiate a member, or all members, of that race or ethnicity as socially inferior or superior in comparison to the other basic races or ethnicities.

    ✎ The performance of an act [describe act]
    ✎ based on a preconceived opinion, not based on objective reason or experience [describe preconceived opinion]
    ✎ that all members of a race or ethnicity possess a non-biometric characteristic or ability specific to that race or ethnicity [describe non-biometric characteristic or ability]
    ✎ so as to unfairly differentiate a member, or all members, of that race or ethnicity [describe how the act unfairly differentiates]
    ✎ as socially inferior or superior in comparison to the other basic races or ethnicities [pick one]

    Back in the olden days calling somebody racist was the liberal nuclear option. It was what they would use to instantly squash dissent, because most people are decent human beings who think actual racism is repulsive, so their opponents would recoil and backtrack, desperately trying to avoid giving perceived offense. The problem was that they overused it. It lost all its meaning. And even Black people like me got sick of such nonsensical crap and challenge it as appropriate.

    Truth is not Racist, Facts are not Hate! Legitimate criticism is not racism. Just like a person is innocent in court until PROVEN guilty, society begins the question of racism/bias from a premise that a situation is not racist until PROVEN it is. Your failure to address this challenge or provide an apology only serves to denote YOU as a fool and a troll.

    ***And as usual this little liberal’s head will explode and they will not address it because they will realize that I am not racist. They’ll simply try something else on the Liberal Left Wing(nut) Arguing Checklist.

    1. Skim until Offended
    2. Disqualify that Opinion
    3. Attack, Attack, Attack [Ad Hominem]
    4. Disregard Inconvenient facts
    5. Make S#!t Up
    6. Resort to Moral Equivalency
    7. Concern Trolling
    8. When all else fails, “ISM!”…Racism, Sexism, Sexualism

  7. […] lights, and driving while impaired. Medlock also told his officers to avoid charging someone with resisting an officer unless some other more serious offense occurred. Some view that charge as a way for officers to […]

  8. My question is concerning a recent charge for resisting arrest, and the use of excessive force during my arrest. I will give a explanation of what lead up to this. I am a 38 year old female. While at a friends home the friend Overdosed, I proceeded to call 911 for help and also stated to the operator that I have a active warrent for my arrest. Upon arrival of EMT and police, I was lead away from my friend, and spoke with officers, again repeating of my warrent. After my friend was revived, the officer began to state I am under arrest,” this I already knew”. While the officer began to place my hands behind my back he stated that I delayed his DUTIES by allegedly pulling my hands away. Officer they grabbed my upper arms with my hands behind my back then proceeded to shove my head and face into a kitchen CABINET..resultung in a broken bloody nose, majority of right side of face bruised as well…Any opinions or suggestions, about my prior honesty of my warrant as a defense and if i could sue, & what steps i take to do so would be greatly appreciated
    NOT GUILTY, MARY ANNE.

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