Parole or Probation Violation Arrests Qualify as “Arrest” for Oregon Resisting Arrest Statute
Parole or Probation Violation Arrests Qualify as “Arrest” for Oregon Resisting Arrest Statute
On July 10, 2014, the en banc Oregon Supreme Court held that arrest for a parole or probation violation qualifies as an arrest for the offense of resisting arrest.
In Oregon, a person commits the crime of resisting arrest by intentionally resisting a police officer or a parole or probation officer in making an arrest. ORS 162.315. The statute instructs, however, that ORS 133.005 defines “arrest.” ORS 162.315(2). Based on the statute, “arrest means to place a person under actual or constructive restraint or to take a person into custody for the purpose of charging that person with an offense.” ORS 133.005(1). An “offense” is a crime or a violation. ORS 161.505.
In 2009, Curtis Dwayne McClure was stopped by two Portland police officers who asked for his name and then allowed him to leave. One officer followed McClure while the other conducted a warrant check.
The officers discovered that McClure had an outstanding parole violation warrant and stopped him again. The officers informed McClure of the warrant and began to restrain him.
McClure “tightened his arms, grasped at one officer’s fingers, and, yelling and screaming, held onto a utility pole. The officers attempted a ‘hair hold take down,’ and one officer struck [McClure] in the torso in an attempt to force [him] to the ground. The officers also repeatedly instructed [McClure] to ‘stop resisting.’”
McClure was eventually cuffed and charged with resisting arrest. At trial, he moved for acquittal, arguing that since a parole violation is not an “offense” within the meaning of ORS 161.505, he was not being arrested “for the purpose of charging” him under ORS 162.315. The trial court denied the motion, concluding that a parole violation is part of the prosecution for an underlying offense. A jury then convicted McClure of resisting arrest.
The Oregon Supreme Court, sitting en banc, ultimately upheld the denial of McClure’s motion for judgment of acquittal and resisting arrest conviction. After an extensive statutory construction analysis, the Court concluded “that, as used in ORS 162.315, the legislature intended the phrase ‘resisting arrest’ to mean resisting ‘actual or constructive restraint’ that is more than a stop, whether or not that restraint is imposed for the purpose of charging a person with an offense.” As such, the Court held that McClure was properly “charged with resisting arrest and that the trial court correctly denied his motion for acquittal.” See: State v. McClure, 355 Ore. 704 (Or. 2014) (en banc).
Related legal case
State v. McClure
| Year | 2014 |
|---|---|
| Cite | 355 Ore. 704 (Or. 2014) (en banc) |
| Level | State Supreme Court |