EP. 56: WHEN DOES RESISTING ARREST BECOME RESISTING ARREST?

Hi, this is Colin McCallin. Thank you for listening. Please do us a favor and leave us a five-star review wherever you get your podcasts and subscribe so that you don't miss any future episodes. Thank you.

[Inaudible]

In June of 2020, a woman by the name of Karen Gardner, who is a Colorado woman, 73 years old with dementia was caught in a Walmart shoplifting about $14 worth of items. She was confronted by staff at the Walmart. She returned the item she attempted to take, and then she left the store. Meanwhile, the police had been called to deal with the shoplifting case, and this occurred in the town of Loveland, Colorado. So the Loveland police department responded to the call and were informed that Ms. Gardner had left up the road. Officer Austin hop of the Loveland police department activated his body worn camera. And in his vehicle pursued Ms. Gardner, as he saw her up the road, she was up the road picking wild flowers alongside of the road. As she was walking back to her home. Officer hop asked her to stop.

Ms. Garner looked back at him kind of shrugged, not sure what to do. And that's when officer hopper immediately comes up behind her and pins her to the ground. Pretty forcefully. You can see the body cam video. This is something that has gone viral. If you look at Karen Gardner in YouTube, you'll see this. He takes her to the ground, actually twice quite violently. Then as he's arresting her planning to load her into his car he pins her against the side door of the car and forces her right arm very, very high up her back. This woman's 80 pounds and you can actually hear the pop as he dislocates her shoulder and breaks her arm for anyone out there listening. It is very troubling to watch and hear that video. It gives context, but it is terrifying. So she's arrested. She's not given medical attention and to make matters about 10 times worse. We have footage of the three officers who were involved in her arrest watching back the body camera as they are dislocating her shoulder, laughing about it, enjoying themselves. So everybody, my name is Colin McCallin as always, I am joined by my partner Russell Hebets. And this is a case that we're going to be talking about today along with the concept of resisting arrest, when is resisting arrest, resisting arrest Russ. So it's going to be a

Fun podcast today. We're going to use this case to illustrate resisting arrest and what rights people have and what duties police have. And we also have joy parish, a good friend of ours, a prolific podcaster herself in her own, right? And she's going to be on playing. Is this legal later, along with DCOTW

All today for you guys. So you know, coming back to this Karen Garner case for a second, we the civil rights case in this matter, there's a federal lawsuit going on against the level and police department. That's being handled by our good friend and attorney, a fellow attorney, Sarah [inaudible] with the life and Liberty law office. Shout out to Sarah. We're hoping to have Sarah as a guest on our podcast to talk about this case a little bit more in the future. But anyway, we've been following this. I'm sure many of you have seen this, this made national news, the video and the body cam footage, as well as the footage of these officers yucking it up as they're watching the body cam is available anywhere. You want to see it.

That almost is a, is worse, worse than the crime, but let's, let's dive in and talk about resisting arrest. So what we're talking about when we're saying resisting arrest is, you know, there's very complex statutes out there covering resisting arrest, but ultimately here's what it means. If you, as a suspect, keep a cop from arresting yourself or arresting someone else by threatening or using force or creating a risk of bodily injury, you have committed resisting arrest. Okay? Now there are some caveats to that and there's some defenses, but you know, what is not a defense Collin, what, it's not an offense that the arrest was unlawful. Isn't that amazing? That is amazing. So what, what we're talking about right here, like, let's say officer hop just picked a random person, said, I know someone in the one mile radius, just shoplifted. I see him. Yeah, yeah. Right. There's a guy I'm going to go ahead and take him down. That is not, that was not a lawful arrest, right? Because he had no probable cause he had no probable cause, but as long as the officer is making a judgment in good faith, based on the circumstances surrounding the arrest, that's not a defense. The fact that you are 100% innocent is not a defense to resisting arrest. Exactly. Now

Resisting arrest, generally, we're talking about a lower level offense. It's, it's, it's a misdemeanor in most locations, right? Russ,

It is a misdemeanor in the vast majority of cases. Sometimes it could be a felony if there is injury or serious bodily injury under certain circumstances. But so those are all the protections for the cops, but they're actually generally are at least some protections built into most statutes for the suspect. And that is when the officer resorts to unreasonable or excessive force. So that's, that's built into a lot of statutes where that actually may be a defense to resisting arrest.

Exactly. let's, let's talk about that because oftentimes these things go hand in hand. I mean, if a person is resisting arrest, there, there is a chance that maybe some degree of force is being used upon them, actually, that arrests, right. I'd say more than some possibly like there's a really hard,

Hi, I, if I were a betting man, like I put some money on that.

I've never seen a cop arrest, somebody without touching, put it that way. Please, please put these handcuffs on sir. But you know, I was looking at this and I guess just by way of example I'm holding up a fairly hefty document which is a portion of the Denver police department operations manual use of force policy. And I will tell you guys, this is pages and pages and pages. But I at least want to give you an idea of what this says generally. Okay. Basically the summary of this very, very long document this very long policy is that force should only be used when it is required as a last resort. Okay. for, for example when possible this is right out of the policy deescalation must be used before resorting to the use of physical force. We want to use non force alternatives, command presence, advisements warnings, verbal persuasion, and commands. All of those are to be deployed first before any sort of force is supposed to be used on a sub on a suspect. And the standard Russ that surrounds this whole thing is based on reasonableness. You're allowed to use force, but only to a degree that it is reasonable to accomplish the goal of what the officer's attempting to do.

And that just makes sense as a public policy. Now, I'm not sure if Denver's manual was updated post all of the social justice protests basically after George Floyd's death at the hands of officer Shovan.

I can actually tell you, it was, this is revised a September 1st to the 2020. So this, this was just revamped.

And that makes perfect sense. And I guarantee you anyone out there, every police, every, at least every large city's use of force policy, like this was updated after that. Right. Be well because he got you have people die.

Exactly, exactly. And so as clear as possible, this policy is telling officers prior to using force when reasonably possible officers will identify themselves as a police officer, officers will attempt to deescalate. They will give lawful commands. They will afford a person, a reasonable opportunity to comply and apply

Non force alternatives one possible before, before using force. That's what we're talking about. That's a recap of, of the use of force policy in Denver,

Probably in most big cities. So I actually have a story about a use of force and a client that I represented a few years ago that was charged actually with assault on a peace officer. But before we get there and let's take a quick break and play, is this legal with our guest of the podcast.

Okay. And we are absolutely thrilled and honored to be joined by our guest today. She's a long time friend of mine and a short time friend of the show, but that's okay. In addition to her career as a full-time licensed behavior, behavioral health therapist, she co-hosts a podcast called this is Claire and joy, which is a off of her previous, very popular podcast. Girls gone WOD w O D Did I mention that she is a four time Emmy Emmy award winner, not lyin', true story. Welcome our guests to joy, perish, welcome to the town.

Wow. Thank you so much. You know, it's going, we're all just live in and thank you for that wonderful intro. That was very nice.

Awful. So joy. We're going to jump right in with our segment, nothing but the truth. This is where our guests regale our listeners with a legal story. It can be funny. It can be scary. Just something that sticks it out in your mind that you, our friend has experienced.

Okay. So I was thinking of like the first time I got a traffic ticket and that was like the first time I was ever involved with blah blah. And I was scared to death. I was very much a rule follower and I'll never forget. It was like driving to, to my classes in college, but I was stopping to vote on the way there was an election. Yeah. It was like election day. And I apparently I was so upset because it was traffic like full on stop and go traffic. However police officer said I was tailgating. So I got a ticket. My first ticket wasn't even something cool, like speeding or doing something like really reckless and, you know, rebellious. I was tailgating in stop and go traffic. And that's my first and foremost of being involved in LA

Tailgating in bumper to bumper traffic. It's pretty aggressive. I'm hitting, you know, that's, that sounds funny. And that's the real deal to me. If someone could do it, that was me. So maybe you get a tattoo to commemorate that or something. Thank you for that. Thank you for playing nothing but the truth, but I think we know what you really came for. Are you ready to play a game called? Is this I'm ready? All right. So here it is joy. I'm going to give you kind of a scenario. And at the end of this, I'm going to ask you what you think, what your opinion is of, of whether or not this is legal. Are you ready?

Yes. All right.

So here it goes. Here's the situation. A woman pulls up to a target one evening, she's in a hurry because she has her dog in her car and she has to pick up her kids and she's running late. She needs one item at target. She needs to go in for a bag of coffee. She enters the store and to her dismay, she sees that all of the cashier lines are really, really busy, like six people deep. So here's what she does. She runs through the store. She grabs a bag of coffee that costs $7 and 99 cents. She then walks to the front of the store, ignores the cashier lines, throws a $10 bill on the floor and announces I'm paying for this coffee. And I do not need change. She then walks out of the store. Is this legal question?

Okay. My first reaction, I'm just going to go gut feeling. It's like, that is not legal. It's not legal.

So,

Okay. The only thing I think of is like, when I used to work for the DA's office, I always remember like reading the police reports and like, they did not try to get in touch with the cashier. Like if you bypass the cashier, then like it's not legal, but if you attempted, and then they were like, Oh no, no, we're busy. Just leave the money or something. Right.

I see what you're saying. So joy, we appreciate your answer, but we actually believe this is legal [inaudible] we do think that you were on the right track and we'll talk about that. But what we have here is you know, we, we have a lady who isn't playing by the rules. She certainly violating store policy. I mean, she's being rude. She is essentially cutting everybody else in, in line that day. And frankly, target has a right to never have her come back into the store. But if we look at I guess criminal behavior, did she shop with, for example, what she did is she selected an item. But what would make this theft is if she had like decided I'm not going to pay for this I'm I I'm just going to walk out and take it without providing any money whatsoever. We think that she laid down the $10 bill. That that means that she intended to pay for it. Meaning she didn't the integrity thing. Let me ask you this. Do you think that there would be a diff you think there would be a different scenario? If the bag of copy was $10 and 50 cents and she threw down, I would say, yes,

The coffee is nine 99. And she left the $10 bill taxes taxes. Over that time scenario, she would be, that would not be legal, but on this, wow, she's making a pain, but

Exactly. So we know, we know that you're immediately going to run to target and pull one of these. And now you're having to be really cool.

If they tried charging you joy, we will represent you for free. Thank you so much.

Well, joy putting a little bow on this. We really appreciate you coming on and playing this game of this. Do you have anything that you can plug for yourself for our listeners to check out? Oh my gosh. I don't know if your list

Audience, your listeners are as far as they like, but you can Google this as join Claire and I have a podcast every week with my co-host Claire cook, and we talk about life. We've been on the air podcasting weekly since 2013. This is our eighth year. We have a great community. We'd love for you to join us. If that's your jam, check us out.

Listen, it's an awesome podcast. Please check out. Joy's work. She's an incredible human being, frankly. I don't know why she even came on this podcast cause we'd always feel the best. Well, thank you so much joy. And we appreciate your time today.

Okay. Talk to you later. Bye.

All right, welcome back to is this legal and Russ, I think you were about to tell us a story about how a resisting arrest really is up to the interpretation of the police.

I mean, it absolutely is. And for your hapless suspect out there, it can go terribly

Wrong. So those stories.

So this is a case that I handled several years ago. It was a young woman in a park after dark. Now someone had called it in as a suspicious person in the park. So she is in the park. A police officer approaches her and she is uncooperative. Okay. She is trying to leave. She does not want to have anything to do with this police officer. The police officer does not want her to leave. So he restrains her. She is trying to get away from him and in the struggle to not get handcuffed, essentially her arms are flailing and she strikes him in the arm with her elbow. Okay. This was not an intentional elbow drop. You know, this isn't like a WWF, like you're going down cop. It is let go of me and bam. So the cop says, Oh, that hurt my arm hurt. When, when she hit me with her elbow,

That makes me think that you are skeptical of police officers,

Injury claims. I may be biased here, but like he had no money. He didn't have a Mark on him, no bruise, not, not even a red Mark. Right? But all he had to do was say that elbow strike caused me pain.

Cause then we have an assault we have,

And not just an assault, but an assault on a peace officer, which in Colorado, it's a big deal. It's a big deal and go to prison for that. Exactly. It's manned at a minimum. It's a mandatory year jail at the time. Right. And it is a huge deal. And this is,

It's such a great example though, of have you, have you, you probably clearly undeniably have resisting arrest based on what you told me. I'm hearing that this officer did have probable cause to contact her and probably arrest her probably. And if she was uncompliant, he probably had, at least he could use some force on her to get her to comply. But this is, this is where it gets interesting. I mean, he could have said, you know what? She resisted arrest. I'm sh I'm going to add the charge of resisting arrest. He went for that extra assault on a peace officer charge claiming that this was an intentional act. How do we know if a person is acting intentionally? Or if, like you said, they're just kind of in the heat of the moment, flailing around

And it's not even, it doesn't even have to be intentionally, it can be knowingly, but, but she doesn't even reach that. So, I mean the, the case had a happy ending. I got the case dismissed. That's about as good as it gets. Right. But you know, just the fact she had to hire me. She had to go, it took months. Like this was not an easy sell. This was not a quick sell because prosecutors are working with these cops all the time. You know, they, it's not easy for them to turn around and say, I'm sorry, officer who you're, you're my star witness in my case next week. But this case where you filed this, you made the decision. I'm saying you're wrong.

Well, the interesting thing about that too, when I was a prosecutor, you know, I would, what you'd handle cases like this because assault is the charge. You actually are required to communicate with the officer and let them know how you're handling the case. And there were a couple of situations, just like what you're describing here, where the officer got really, really when I would inform them, look, we don't have assault against the peace officer here. We have resisting arrest. That's what this is. I'm sorry. Sometimes they get really upset about that. Certainly they take risks. They're out there risking their lives, but you can understand that they, to a certain degree, they want to make sure that people that they're involved in altercations with that, that they, that those are handled appropriately. But you know, the fact is you can, you absolutely can have a cop that like yours, who will kind of embellish the injuries, embellish the case where, you know, he wants to pursue a felony. He gets something that's probably unjustified. Right.

Right. Exactly. And so that's, that's where you're happy. You have a multi-tiered legal justice system where you do have more than, than just cop looking at it. I mean, all I'm saying Colin is, I'm glad we're not in Singapore.

They got the good food in Singapore

Though. I mean, Singaporean, I think,

Did they speak, they speak Singapore there I've don't think so. I think it's Chinese dialect. I know nothing about Singapore,

Pretty confident in that. Although don't quote me, anyone out there, any, any Singapore experts out there do not quote me. I'm not holding myself out to be

Expert Norma, nor am I. But anyway,

So, so let's go into, let's go into some hypotheticals about this because you know, we kind of laid it out for people, but let's actually use the Karen Gardner case and see how this plays out in a real life situation, because situations like hers do happen all the time.

Right. And again, folks, you should, you should check out the video if you haven't seen this already. I mean both the video of the arrest, which isn't very long and the the video of the officers joking about the rest, which is crazy. But it'll give you the context for the discussion that we're about to have on this, but we're, we're going to shift things around and see if anything would have, could have been different here by either Ms. Garner or the cop, right? Yeah.

So, so let's take the initial approach. Officer hop, he comes and he finds a person walking along the side of the road, going in the same direction that he was told the shoplifter went, matching the description of the shoplifter with multiple witnesses saying she shoplifted, okay. In that situation, see allowed to contact.

Sure. Yeah. I mean, at that point he's got a reasonable suspicion that this woman is someone who was involved in this crime. He's at least allowed to contact her and investigate. Absolutely.

So he gets out, he approaches her, he says, Hey, please stop. I'd like to talk to you

So far. So good. He's allowed to do that. He's allowed to detain her.

She shrugs her shoulders and starts walking away. Okay. Is he allowed what's he allowed to do at that point? I should say. Sure.

Well, why don't we go back to the operations manual that we were just talking about? So prior to using force and when reasonably possible officers will identify themselves as a piece of police officer now he was in a marked patrol car in full uniform. So I don't, I don't know if he ever said I'm a level in police officer, but it was clear that he was attempt to deescalate. We didn't see that here at all. I mean, he this guy had the handcuffs out, had her tackled to the ground in about five seconds after she shrugged off his initial contact.

And, you know, you say five seconds, which is, you know, an embellishment, but it literally was under a minute, right? I mean, it was, it was quick.

This guy made a very lightning fast decision that he was going to not only arrest this woman, but use a large degree of force on her in effect in effectuating the arrest. And so, you know, again, we look at the conduct of Ms. Garner, which initially I think is somewhat problematic for her part because he tells her to stop and she ignores his command or, or misunderstands it, remember this, a woman who has dementia, she may not have even understood it. But in any event

What's he supposed to do after that? You're supposed to give more

Awful commands. You're supposed to continue to try and work with the person.

You will afford the person, a reasonable opportunity to come

Ply. So this is right out of this manual. And again, most police agencies have similar language that outlines this type of an encounter. So of course, in this case, if we look back at what the officer did, he just jumped the gun on several levels.

He, he, he went from like, you know, green to red. I mean immediately like nothing in between skip yellows. And I mean like, cause he took her down to the ground so quickly. So what he didn't do is he didn't try grabbing her. Right. You can grab her by the arm and say, ma'am

Come talk to me with my, to my car. I could have stood

In front of her. And you know, these things that we're talking about that is exactly how Walmart got her back in the store and got her to return the items she took. Right. They, it was a peaceful confrontation at the store. Right. They didn't take her to the ground. They basically stood in front of her. They did put their hands on her a little bit, but they ushered her back in and she complied. He did not try to do that at all. Okay. He didn't try to give her extra commands. He didn't try to explain what he was contacting her for. He didn't, he didn't try to find out if maybe she had any cognitive issues. Right. Okay. And what he did was went immediately to taking her down, which if you remember back, you know, the arrest was lawful, so it's not a defense that it's a resisting that the arrest isn't lawful unless excessive force is used.

Exactly. So I think that we can look back at officer's hop conduct and, and show that he acted inappropriately here. Let's look at this in a couple of different lenses though, just since we're on this topic, let's go the other way. Let's just say that Ms. Gardner, even though she was older than 73 years old, let's say she had a gun that was visible in her waistband. When this officer approached her, do you think that changes anything? Russ?

I think that absolutely changes it. If she has a gun that she can easily access, even if it's not out in her hand, now you have it out in her hand and all of a sudden he can use lethal.

Absolutely. I think once, once an officer sees a firearm in the hands of someone, they are trying to either arrest or control at that point, they can use lethal force, right? I mean it's, if it's, if it's her or me, if that's the analysis, absolutely is right. It can go that far.

So anyone who has a carry concealed permit out there and you get contacted by the cops, your hands don't go anywhere near that thing, your hands

Straight up, straight up and you say, I have a gun, right?

That's exactly what you do straight up in the air. Or you lie down on your face with your arms flat in front of you and say, I am armed. I have a gun it's in my waistband. Right. Or it's in my jacket or holster, ankle, maybe garter.

But going back to the point, the point that you're making, why does the gun matter? Well, because again, we, that word reasonable that we keep seeing in the operations manual, a cop is reasonably allowed to protect themselves. And if they're encountering someone that they know is armed, they are absolutely going to approach that person in a, with a much more cautious, I guess, approach better word than they would if the person's on armed.

Right. And, and to that point, like if the person turns around and takes a swing at the officer or hits the officer, the officer can

Absolutely. He can punch it back. He can get his Baton. He can, he can do what's reasonably necessary to defend. And, and that's essentially self-defense at that point, if they're being attacked. Right. Right. So into the officers do get some protections here too. Yeah.

So let's take this hypothetical the other way. Okay. We went all to, you know, Ms. Gardner is this, you know, this outlaw here with her six shooter, let's, let's go the other way. Let's say the shoplifter that was described was a male in his twenties. And officer hop sees someone walking in the general area and stops them and tries to detain them.

So that is going to be a lack of reasonable suspicion to contact the officer doesn't have enough enough basis to contact that person. So if he tried to stop somebody, that would be an illegal stop. But if he arrested somebody and they resisted, it could be charged with resisting arrest.

Yeah, exactly. So even in that scenario, like that would be an illegal stop, like the case for the underlying shoplifting, if charged would be thrown out by us because we're awesome attorneys, but that's still, if he made that judgment in good faith, most statutes probably protect the officer from like having a, having a defense that, you know, he resisted. If you're charged with resisting, we have often have cases where the only thing that's charged is resisting arrest. So whatever the original reason was didn't have enough to stick. But ah, we got you for resisting even though why were you being arrested in the first place? I don't know. It doesn't matter real quick.

The aftermath of this case, what happened to these officers? So again, this happened in June of 2020, Karen Gardner was charged with shoplifting. Sarah, the attorney, her attorney got that charge, dismissed and managed to obtain all of this body cam footage and footage from the jail showing these guys joking about the arrest. Officer Austin hop as resigned, officer Daria Jalali who was also on scene effects, shredding this arrest resigned. And the sir, their supervisor, Tyler Blackett has also resigned. So they're no longer members of the police departments. There is a federal lawsuit going on against Loveland PD. We will watch that and keep you posted. And again, hopefully we're going to get Sarah on this podcast one of these days. And we'll talk more about it.

I believe the Loveland the DA's office. I'm not sure.

Yeah. The DA's office is doing an investigation and may charge these officers. Yes.

I think they're, they've said that they're going to make a charging decision this Friday. So that's, that's the day this podcast drops. So check the news people and see if these guys are getting charged and we'll see if we can tweet an update or something. Yeah. And we'll probably do a follow-up podcast on this, but now it is, it is time for

D C O G Oh ladies and gentlemen, boys and girls. We have that fauna. We have what I like to call a humdinger. I like to call it a game changer. This is,

We've done a lot that are across the pond, whatever pond like South Africa, England, we are now coming right back home. No one does stupid criminals. So we are going down to the sunshine state, sunny, Florida,

Where I'm criminal the week here, buddy. I

Have a dumb criminal of the week from Florida.

Well, I mean, I, I'm sure there's gold to be mined in Florida for these kind of cases

He is. And here we have a duo. I'm going to call him the dumb dude

Who were not dynamic,

Certainly not dynamic. They were driving in Santa Rosa County, Florida. They were stopped for speeding 25 miles over the speed limit so far, that's not so bad, not so bad. I mean, you're driving too fast, but they were driving too fast with a car full of drugs. And the illegal drugs were found in their car in a bag labeled bag full of drugs.

Like

It was, it was so bad that the Santa Rosa Rosa Sheriff's office, the K9 deputies put a Facebook post saying note to self, do not traffic, your illegal narcotics in bags, labeled a bag full of drugs. Our canines can read,

Wow. You're you're,

You're, you're getting fronted by.

Yeah, you, you can, you're in a police officer and the car you just pulled over, you look at it and you see bag and it says bag of drugs on the side of the bag.

Right. I think that's probable cause that lets them search the bag. I mean, it's interesting that a canine unit was involved here because I don't think they needed the canine unit. I think they definitely knew exactly what was in the bag.

They, they knew exactly. And you know, what was in the bags, in the bag, 75 grams of meth, 1.3 kilos of GHB. There's a good Friday night, one gram of cocaine. There's a good Tuesday night, 3.6 grams of fentanyl. Good, good. Thursday night and 15 MDM tablets. That's a really big deal. I mean, it was a potpourri. I mean, it was a really big bag,

Right? Yeah. And drugs, plural. I mean, we, we just have one. I mean, I was like, I had all the party favors. They did. They both did. Right.

So Colin, how many knuckleheads do these guys get from you? Yes.

This, this can only be five knuckleheads, as far as I'm concerned. I'm given the full maximum. I mean, you know, first of all, you're not just speeding five to 10 over the limit with that kind of near bag, you're going 25, 27 miles per hour over the limit. What's my math here. That's pretty horrible. That's just, you might as well just put out a big sign in your car saying, stop me and pull me over. And of course the actual possession of the bags of drugs themselves that were had bad bag of drugs written on them. That's just gold. Not to mention the plethora of drugs that were found. I mean, each one of those is grounds for a felony offense here in Colorado, not to mention the fact that it's the whole kitten caboodle. So yeah. That stupid all around full five for me.

I do not know how I could possibly justify disagreeing with you on that. Like, like, I mean, just the fact you, you're trying with that much drugs, that many drugs and you're going 25 miles per hour over silly. I mean, you're, you're beyond stupid. So there, there you have it

Folks, you probably didn't have pants on either.

I mean, I assume not. So, so ladies and gentlemen, that is our dumb criminal of the week as always check us out on Facebook Hebets, McKellen Twitter is this legal pod. Let us know what you think. And we are looking forward to seeing you next time

Special, thanks to joy parish for joining our show and playing is this legal with us? Check out her content and we will see later

[Inaudible].