The Assault on a Police Officer (APO) statute is so broad that the D.C. Court of Appeals has had to issue multiple opinions to interpret it.  In Edwin Cheek v. United States, an opinion it issued today, it interpreted that portion of the law that makes it illegal to “interfere” with a police officer while that officer is performing his official duties.  (Other parts of the statute make it illegal to assault, resist, oppose, impede, or intimidate an officer.)

Surrounded by a “large, disorderly crowd of 20-30 people,” D.C. police officers were breaking up a fight between two women when they were approached by another woman who yelled at them.  The officers ordered her away and she complied.  The officers were then approached by Edwin Cheek who, upset over the way police had treated the woman and clearly intoxicated, yelled and cursed at them.  Cheek “did not heed Officer Blier’s repeated orders to back up, moving away only when another citizen led him away from the scene.”  Cheek then came back several minutes later, screaming and cursing and again ignoring the officers’ order to back up.  He was thus arrested and later convicted of APO for “interfering with Officer Blier’s investigation of the fight.”

The D.C. Court of Appeals has previously held that to violate the APO statute, the conduct “must go beyond speech and mere passive resistance or avoidance, and cross the line into active confrontation, obstruction or other action directed against an officer’s performance in the line of duty.”  Whether conduct meets the “active and oppositional” standard requires “an intensely factual analysis.”

The Court concluded that, in this case, Cheek’s conduct “crossed the line from passive to active and oppositional conduct.” Specifically, it held that:

appellant approached Officer Blier as he was speaking with an arrestee and conducting an investigation of a violent fight.  Appellant appeared “extremely” intoxicated as he approached the officer from behind, yelling and cursing.  He was within ten feet of the officer and repeatedly disregarded his orders to back up.  Appellant’s conduct was sufficiently disruptive, that appellant was eventually led away by a fellow citizen bystander.  Nevertheless, appellant angrily returned to the already “contentious” scene and repeated the conduct.  There was “so much going on” and “so much noise” that with only two officers present to control the “large disorderly crowd” of “20 to 30 people,” Officer Blier “had to have [his] head in swivel to observe every direction to make sure no one approached [him] or came up and tried to start an altercation.”  The crowd was angry and aggressive, and when appellant returned to the scene, the officer feared that appellant was “adamant about doing something.”  Officer Blier felt “threatened” and “distracted,” and was concerned for his safety, that of his partner, and the girl he had in handcuffs.  His ability to ensure their safety and conduct an investigation of the fight was severely impeded by appellant’s repeated conduct.

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Testifying = Snitching?

by Jamison Koehler on November 18, 2014

The witness refuses to testify. “I am not a snitch,” he tells my investigator Wayne and me.

“But we am not asking you to snitch on anyone,” I reply. “We are just asking you to testify. To tell the truth about what you saw. We need your testimony for our defense.”

When I was growing up, a snitch was someone who ratted out his friends to police or who otherwise cooperated with “The Man.” Somehow this definition has expanded – at least in some quarters of the city – to include anyone who testifies at a criminal trial. It doesn’t seem to matter whether the testimony is for the government or for the defense.

In domestic violence cases, you can count on a fairly large percentage of the complainants to fail to show up on the day of trial. Maybe they are afraid of the accused. Just as likely, they have reconciled or otherwise reconsidered. “It doesn’t do me any good,” one of the complainants tells me, “to have my baby dad locked up.”

Similarly, the reluctance to play the role of a snitch has traditionally worked to the benefit of criminal defense attorneys. Even when a government witness does show up on the day of trial, there is no guarantee that the witness will actually testify. And the defense usually knows this long before the government does.

But now there is this: people defining a snitch as someone who testifies at all. Maybe this is a fairly recent phenomenon. Maybe it has just taken a while for me to notice it.  After all, I can be kind of slow sometimes.  But it is a disturbing – if not surprising — trend in either event.

The witness in this case eventually accepts the subpoena but he looks skeptical. So does Wayne. We won’t be seeing him again, Wayne says. Wayne has been doing this for a while. His predictions have an uncanny habit of coming true.

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Watching Amy Phillips

November 8, 2014 D.C. Superior Court

She is assertive without being aggressive. She knows when to push and when to hang back. She is pleasant and well-spoken. She does her homework. She is committed to her clients while keeping a sense of humor. As an avid student of the law, she is always ready to talk things through with you. She […]

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Second-Guessing Your Lawyer

November 7, 2014 Law Marketing/Networking

The caller tells me he wants my professional opinion.  What he really wants is some free legal advice so that he can second-guess the lawyer he has already hired. But the caller has three problems.  His first problem is that I remember him.  I remember speaking with him not once but twice on the phone […]

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Sometimes I Think The Stenographer Is Out To Get Me

November 6, 2014 Trial Advocacy

I read every transcript I can get my hands on, including my own.  My office mate at the Philly PD’s office used to give me a hard time about that – he thought I was being vain. But he may have been giving me more credit than I deserved.  Sometimes you are proud of how […]

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“Shoplifters Will Be Prostituted”

November 4, 2014 Humor
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A Prosecutor Melts Down

November 2, 2014 Law Practice

We had at least one meltdown every year at the public defender’s office in Philadelphia.  Sometimes the meltdown was very public:  the PD throwing down her files and stomping out of the room.  Other times it was a more private affair.  The defender would simply drop his files back at the office and leave, never […]

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You Do Not Pronounce The “H” in Amherst

November 1, 2014 Miscellaneous

I grew up in Amherst, Massachusetts.  My mother and two of my sisters still live in the area.  And I take all of this very seriously:  You do not pronounce the “h”.  It may be “Am-HERST,” New York.  But it is “Am-ERST,” Massachusetts. I am always amazed to hear a graduate from one of the […]

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