Submitted July 9, 2013.
Bryan P. MacAvoy was on the brief for appellant.
Ronald C. Machen Jr., United States Attorney, and Elizabeth Trosman, Chrisellen R. Kolb, Lauren Bates, and James M. Perez, Assistant United States Attorneys, were on the brief for appellee.
Before WASHINGTON, Chief Judge, and NEBEKER and NEWMAN, Senior Judges.
NEBEKER, Senior Judge:
Appellant William Cave appeals his conviction, after a bench trial, for assault on a police officer under D.C.Code § 22-405(b) (2007 Supp.). The government concedes that the trial court erred when it convicted Cave without addressing the evidence in its entirety and requests a remand of the record in order for the trial court to make additional factual findings. However, the trial court has already made the factual findings the government now requests, and, aside from the trial court's conceded error of law, those findings demonstrate that the government failed to prove its case beyond a reasonable doubt. Accordingly, we vacate Cave's conviction and remand for entry of judgment of acquittal.
Section 22-405(b) provides that anyone who " without justifiable and excusable cause, assaults, resists, opposes, impedes, intimidates, or interferes with a law enforcement officer ... shall be guilty of a misdemeanor." We have explained that, in order for a person's " resistance" to an officer to be punished under this statute, that resistance must " cross the line into active confrontation, obstruction or other action directed against an officer's performance in the line of duty." In re C.L.D., 739 A.2d 353, 357 (D.C.1999). " Mere passive resistance or avoidance," id., or conduct that does not " actively or physically oppose or interfere with the officers," Howard v. United States, 966 A.2d 854, 857 (D.C.2009), cannot form a basis for a conviction under D.C.Code § 22-405(b).
In this case, Cave was seated in his parked car when he was approached by officers from D.C. Protective Services. The officers ordered Cave out of his car, and he refused to comply. The officers, Cave, and Cave's witnesses presented conflicting testimony about what happened next. The officers claimed that Cave began to struggle and strike them before fleeing into a nearby homeless shelter where he hid under his bunk until the officers apprehended him. Cave and his witnesses claimed that he only attempted to protect himself from blows of the officers' batons, did not strike the officers at all, and complied with the officers requests inside the homeless shelter.
The trial court, in its findings, stated:
The defendant's own testimony it seems to me goes a long way to convict him in this matter. He agrees he did not comply with the officer's command or direction to get out of the vehicle. He says he had a good reason and maybe it is a good reason. I don't dispute that but that does not create an exception to the statute that requires a civilian not [to] resist a police officer in the lawful performance of his duties. It is pretty clear here that Mr. Cave, he may not agree in his mind that he did it and it sounds like he got the worst end of the stick, no pun intended, in this matter but his testimony leads me to conclude that he did in fact resist the police officer.
How it happened afterwards, who struck whom, whether there was flailing
of arms and legs and in what order is something I'll never know. It is also clear that the officers involved here did not handle this with the softest of touches and that this matter could have been perhaps handled differently and avoided, this unpleasantness, but from Mr. Cave's own testimony and the, from the testimony of the two officers who testified, I am required, a little bit reluctantly, but I am required to find him guilty of assault on a police officer and that is my finding.
The trial court explained that Cave's " own testimony" established that " he did not comply with the officer's command or direction to get out of the vehicle." On this basis, the trial court concluded that Cave " did in fact resist the police officer." As for the factual dispute about " [h]ow it happened afterwards, who struck whom, whether there was flailing of the arms and legs and in what order," the trial court declined to resolve the question one way or the other, characterizing it as " ...