Sunday, September 09, 2012

You Can Resist

United States v. Davis, No. 10-4104-cr (2d Cir. August 24, 2012) (Walker, Lynch, Droney, CJJ) 

Hoping to evade a drug arrest, Deitron Davis ran from an agent; during the chase the agent frequently caught up to him and struck him with a baton, but Davis - a very big guy - kept running. Eventually, other agents joined in. They caught Davis and pinned him to the ground, stomach down. He struggled and resisted being handcuffed, to no avail, but did not threaten or strike any of the agents. A jury convicted him both of the drug offense and of misdemeanor resisting arrest, in violation of 18 U.S.C. § 111(a). On appeal, however, the circuit agreed that the evidence was legally insufficient to make out this offense.  

The wording of § 111(a) is notoriously vexing: where the defendant “forcibly assaults resists, opposes, impedes, intimates, or interferes with” a federal officer in connection with his official duties, he is guilty of a Class A misdemeanor “where the acts ... constitute only simple assault.” There are also enhancements that, where present, render the conduct a felony.

The circuit had previously rejected a vagueness challenge to the “simple assault” provision, citing  the “settled principle of statutory construction” that, “absent contrary indications, Congress intends to adopt the common law definition of statutory terms.” The earlier case thus held that “simple assault,” as used in § 111(a) means “a crime, not involving touching, committed by either a willful attempt to inflict injury upon the person of other which, when coupled with an apparent present ability, causes a reasonable apprehension of immediate bodily harm.” It follows that, for a defendant to be guilty of the misdemeanor of resisting arrest under this section, he must necessarily have committed common law simple assault.

The circuit noted that some circuits have taken a different approach, concluding that to use only the common law definition of “simple assault” would be contrary to the statutory text, which enumerates a number of other criminal acts that would not by themselves be simple assaults. But the circuit decided to continue to apply only the common-law meaning, noting that the phrase “simple assault” has an “established” common law meaning and no contrary meaning “in the vernacular, the U.S. Code or elsewhere.”

The rest was easily resolved in a single paragraph. To the circuit, Davis’ conduct did not constitute common law simple assault. Although he resisted arrest, he did not strike blows - he resisted passively without punching or attacking any one. He merely “us[ed] his muscles to avoid [being] cuffed.” Absent evidence that Davis “engaged in any conduct ... that demonstrated a desire to injure an agent or would cause an agent to apprehend immediate injury,” the evidence was insufficient.



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