Police, The Fourth Amendment, Qualified Immunity

GOTON v. PESTAK (D.N.M. 7-12-2012) (unpublished)

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Still, the case law does not support the proposition that refusing to comply with any directive given by a peace officer would [the resisting-a-policeman statute]. Both [cited precedents] involved an officer giving lawful commands to an individual who was armed with a weapon. Given the nature of such a circumstance, the officers in each case had the authority to demand compliance with their orders. If, on the other hand, an officer is simply giving directions with which he cannot demand compliance, then a mere refusal to obey would not support a conviction under [the resisting-a-policeman statute]. This limitation is consistent with the general rule that physical resistance or fighting words are required to violate the statute because it prevents the [exceptions outlined in the cited precedents] from swallowing that rule. Moreover, it is consistent with the statute’s requirement that one must resist a peace officer “in the lawful discharge of his duties.” See N.M.S.A. § 30-22-1(D). The instant case provides a useful example of this distinction in action. If, as Defendants contend, Plaintiff was “interfer[ing] with Defendant Deputies’ lawful duties by defiantly remaining ‘standing on his property’ and ‘becoming defensive,'” then they could have demanded that he comply with their orders to return to his store in order to control the scene of the Terry stop. . . . If, instead, Plaintiff’s presence and conduct was not interfering with the Terry stop, then the Court can see no basis for the officer’s authority to demand Plaintiff return to his store. Taking the facts in the Complaint as true and viewing them in the light most favorable to Plaintiff, the Court must at this stage conclude that Plaintiff was not interfering with the Terry stop. As such, the Court cannot now conclude that the officers had the authority to order Plaintiff to return to his store. Without that, probable cause to believe that Plaintiff violated [the resisting statute] would not exist. If probable cause did not exist, then Plaintiff’s Complaint sufficiently alleges that his arrest and prosecution violated his constitutional rights.

(footnotes and record cites omitted)

Written by Burgers Allday

July 17, 2012 at 5:32 pm

Posted in Uncategorized

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