Monday, June 2, 2014

Indiana Court of Appeals Overturns Conviction For Resisting Arrest; Says Passive Resistance Does Not Equal Forcible Resistance

The Indiana Court of Appeals recently overturned the resisting arrest conviction of a Lake County woman, which appears to be good news for Erin Gardner, the local woman who was arrested by LPD Officer Jeffrey Webb last year during a minor traffic stop.   Webb was caught on camera as he violently yanked Gardner from the back seat of her friend's vehicle.  (See Lafayette Woman Seeks Jury Trial)

Gardner says she was injured by Officer Jeffrey Webb
Gardner was injured in the process. During the verbal exchange, Gardner questioned Webb's demands that she provide a driver's license since she was merely a passenger and had not commited a crime.  She was subsequently charged with failure to identify and resisting arrest even though she provided her social security number and date of birth during the traffic stop. 

Gardner claims she did not resist arrest, nor did she refuse to identify herself and that she looks forward to her day in court.

After Gardner went public with her story via this blog, prosecutors added an additional charge of marijuana possession, which she says amounts to malicious prosecution.  Gardner had an empty container with marijuana residue in her possession, which was found during an invasive body search.  

In light of the appeals court's recent ruling, it is questionable as to whether the charges against Gardner would stand a constitutional challenge.   Lawyers have indicated that since the resisting charge was improper the subsequent charges should also be dismissed.  Gardner says she has been in contact with attorneys at the Indiana Civil Liberties Union, and that they are currently reviewing her case after initially receiving positive feedback.

Lafayette native Judge Margaret Robb wrote the majority opinion for the Lake County case and stated that "a mere refusal to stand or some other act of passive resistance does not amount to forcible resistance."

Maddox Macy, the Lake County defendant, was arrested by Officer Roger Bowland after the woman began yelling at him, demanding answers and exclaiming that her dogs had not bitten anyone after one of her neighbors made the claim.  Macy was warned several times by the officer to calm down or she would be arrested.

"Macy's hands were handcuffed behind her back, and Officer Bowland placed Macy in the front seat of his police car and shut the door," read a portion of Robb's ruling.  "Macy somehow opened the door, got out of the car, and began yelling once again.  Officer Bowland 'had to force [Macy] into the car and she sat down and kept her feet out on the ground...'  Officer Bowland asked Macy to place her feet inside the vehicle, but she refused, so the officer 'had to pick her feet up, put her feet into the car and shut the door."

Officr Bowland stated that Macy resisted his commands and would not get back into the car.

"She refused and I had to place her in the car and then she wouldn't put her feet into the car.  I had to place her feet into the car," stated Bowland.

Macy was charged with disorderly conduct and resisting law enforcement.  She was found guilty after a bench trial was held.

In the ruling, Robb noted that the Indiana Supreme Court "has noted that the statute 'does not demand complete passivity.'"

"Merely walking away from a law-enforcement encounter, leaning away from an officer's grasp, or twisting and turning a little bit against an officer's actions do not establish 'forcible' resistance."

The ruling also noted an earlier decision by the Indiana Supreme Court wherein the justices overturned a juvenile adjudication "for resisting law enforcement after concluding there was not sufficient evidence the juvenile forcibly resisted."  In that case, the juvenile "began to resist and pull away" from a school liaison officer who grabbed him by the arm and attempted to handcuff him.

Robb cited several Indiana Supreme Court rulings, which she relied on for her decision to overturn Macy's conviction.
"The [Indiana Supreme] court opined that a mere refusal to stand or some other act of passive resistance does not amount to forcible resistance," wrote Robb.

"The court also noted that an officer's use of force in response to passive resistance is not evidence of forcible resistance."

It is clear to this writer and many others who reviewed the video footage that Gardner did not resist arrest.  After being harassed to provide a driver's license that she did not legally have to provide, she was violently yanked from the passenger's seat.  Gardner did nothing wrong.  There was no probable cause to even question this woman.  The car was at a complete stop before any officer approached, so there was no possible way for them to know whether or not Gardner was wearing a seatbelt when the car was in motion.

We find it appalling that Prosecutor Pat Harrington is wasting tax dollars to pursue this bogus case. 

Jeffrey Webb and his cohorts should be reprimanded for their deplorable actions.  There are several LPD officers who should be sent to remediation school to brush up on the constitution.

Stop the madness, Pat!

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