IN THE SUPREME COURT OF THE STATE OF NORTH DAKOTA
| State of North Dakota, | |
| Plaintiff\Appellee, | |
| vs. | Supreme Court No.: 20060242 |
| Rodney Brossart, | |
| Defendant\Appellant, | |
APPEAL FROM A CONVICTION IN THE DISTRICT COURT
NORTHEAST CENTRAL JUDICIAL DISTRICT
Nelson County Case No. 06-K-00026
Honorable Karen Braaten
APPELLANT'S BRIEF
| NEIL W. FLEMING |
| Attorney ID # 02887 |
| For: Fleming, DuBois & Fleming, PLLP |
| Attorneys at Law |
| PO Box 633 |
| Cavalier, North Dakota 58220 |
| Telephone No. (701) 265-8446 |
| Facsimile No. (701) 265-8947 |
| Attorney for the Defendant\Appellant |
TABLE OF CONTENTS
| Table of Authorities | ii |
| Statement of Issues | Para 1 |
| Statement of the Case | Para 3 |
| Statement of Facts | Para 4 |
| Law and Argument | Para 6 |
| Conclusion | Para 15 |
TABLE OF AUTHORITIES
| Statutes | |
| North Dakota Century Code § 12.1-05-03 (1) . | Paragraphs 16,17 |
| North Dakota Century Code § 12.1-05-07 . | Paragraph 18 |
| North Dakota Century Code §12.1-08-02 (1). | Paragraphs 4, 19 |
| Cases | |
| State vs. Ritter, 472 NW2d 444, 446 (ND 1991) | Paragraph 9, |
| State vs. Cox, 532 NW2d 384, 385-386 (ND 1995)... Paragraph 9, | |
| State vs. Barth, 637 NW2d 369, 375 (ND 2001) | |
| 2001 ND 201 | Paragraphs 9, 10,12 |
| Other |
| Merriam-Webster's Collegiate On-Line Dictionary, |
| www.m-w.com (2001).Paragraph 10 |
Statement of Issues
1. Issue One: Did Brossart's actions of yelling and disagreeing with the police create a substantial risk of bodily injury to the public servant or require substantial force to overcome, such that it rose to the level necessary to become preventing arrest?
2. Issue Two: If the court finds that the police did use substantial force upon Brossart, did Brossart have the right to resist an unlawful arrest where the police used unreasonable force to subdue him?
Statement of the Case
3. In 2006, Rodney Brossart was tried on two criminal citations alleging one count of disorderly conduct, and one count of preventing arrest. See Appendix pages 3,4. The Honorable Karen Braaten presided during a trial to the bench. The court denied the Defendant's motion for a judgment of acquittal regarding both counts, at the end of the prosecution's evidence. After the close of the Defendant's case, the court found the Defendant not guilty of the crime of disorderly conduct, but found him guilty of the crime of Preventing arrest, or discharge of other duties. This appeal followed.
Statement of Facts
4. The trial court convicted Brossart of Preventing Arrest, a violation of §12.1-08-02(1)based upon the officer's testimony during the trial. See Appendix page 5,line 11-25; and page 6 at line 1-25; and page 7 at line 1. The court specifically disregarded the Defendant's version of events, which is that he merely "tensed his arm". See Appendix page 7 line 1-2. The testimony of officer Stenvold regarding the "detention" is set out at Appendix pages 9 line 21 through Appendix page 14 at line 3. The testimony of officer Braathen regarding the "detention" is found at Appendix page 15 line 10, through Appendix page 16 line 2.
5. Upon cross examination, the officers both testified that Brossart never made any threats toward the officers whatsoever, and never made any gestures that put the officers in physical danger. See testimony of Officer Stenvold at Appendix page 8 line 5 through 17; and See also the testimony of Officer Braathen at Appendix page 17 line 3 through page 18 line 4; Appendix page 19 line 2 through page 20 line 1-7.
6. The officers testified that Brossart was only going to be "detained", and was not under arrest, until he did not cooperate with the officers. Appendix at page 21, line 19-24, and page 17 at line 14. At that point, the officers "arrested" him for resisting arrest.
Law and Argument
7. Issue One: Did Brossart's actions of yelling and disagreeing with the police create a substantial risk of bodily injury to the public servant or require substantial force to overcome, such that it rose to the level necessary to become preventing arrest?
Short answer to question presented: NO
8. This issue, is a question of law, and as such is fully reviewable by this court.
9. In cases involving preventing arrest, heard previously by this court, the fact patterns are all similar in that the Defendants actually threatened the officers, and became physically aggressive. State vs. Ritter, 472 NW2d 444, 446 (ND 1991) shoved an officer; State vs. Barth, 637 NW2d 369, 375 (ND 2001); 2001 ND 201 ¶ 3 raised his arms and clenched his fist. State vs. Cox, 532 NW2d 384, 385-386 (ND 1995) fists clenched and threats.
10. In State vs. Barth, this court attempted to define Substantial force thusly: the term "Force" is defined to mean "physical action." The term "substantial" is not defined under our statute, but is defined in Merriam-Webster's Collegiate On-Line Dictionary, www.m-w.com (2001) to mean "not imaginary or illusory considerable in quantity; significantly great." The court goes on to say that a refusal to cooperate with arresting officers in a manner that requires officers to physically manipulate arrestee to make arrest can constitute unlawful resisting of arrest, but doesn't necessarily become so. State vs. Barth p. 375; ¶ 18.
11. In this case then, the evidence demonstrates that Brossart did not at any time threaten the officers, or become physically aggressive toward them. At worst, he simply did not comply with their unlawful orders when they attempted to arrest him.
12. The officers testified that they used the mandibular angle pressure point maneuver. Officer Braathen then characterizes the maneuver and testified that it applies a little bit of pressure to help release the joints, helps relax the person. Appendix page 16 line 16-18. From the officer's characterization of this move, it cannot be found that it would be a move of "substantial force" as defined by the test set out in Barth. Id.
13. Similarly, with the evidence the trial court had before it, it cannot be said that Brossart created a substantial risk of bodily injury to the public servant. Brossart did not take any aggressive stance, did not swing, or attempt to strike the officers in any way. He was simply verbally combative, and uncooperative. These actions by Brossart fall far short of the required threshold of "substantial risk of bodily injury".
14. Issue Two: In Arguendo, If the court finds that the police did use substantial force upon Brossart, did Brossart have the right to resist an unlawful arrest where the police used unreasonable force to subdue him?
Short answer to question presented: NO
15. The question of whether the police used unreasonable force against Brossart is a question of law which is fully reviewable by this court.
16. Resistance to "excessive force" by an officer acting under color of law is a factual defense to any criminal charge arising from the resistance. § 12.1-05-03 (1). This defense was raised by the defendant and was preserved when the Defendant made a timely Motion for Acquittal during the trial of the matter, at the close of the Prosecution's case. Appendix page 22 line 25 through page 24 line 1.
17. This court has stated on many different occasions, that a person does not have the right to resist an unlawful arrest unless the officers use "excessive force". This position arises from §12.1-05-03(1), and has been cited in many cases from this court. The question in this case then becomes whether Brossart was justified in resisting the officers when they were attempting to arrest him illegally, and after both officers took him to the ground and used the mandibular angle pressure point technique upon him, using force which was clearly excessive.
18. Section 12.1-05-07 of the Century Code limits the use of force, nad states that A person is not justified in using more force than is necessary and appropriate under the circumstances. By extension then, this same test applies to the officers in this case. When faced with a man who was not physically aggressive, and was simply verbally load and angry, and uncooperative, it was unnecessary for both officers to slam him into the ground, and use the mandibular angle pressure point upon him to effectuate an illegal arrest. Brossart then was within his rights to resist the unlawful and excessive force used in the arrest by the officers.
Conclusion
19. Since Brossart took no actions which placed the officers at a substantial risk of bodily injury, and did not employ means requiring substantial force to overcome, the court erred in convicting him of the crime of Preventing arrest, under §12.1-08-02 (1).
20. In the alternative, if the court finds that the officers did use substantial force against him, the court erred in convicting him over the properly preserved statutory defense of resisting an unlawful arrest which was accomplished by use of excessive force. In both instances, the court erred in convicting the client, and Brossart's conviction should be reversed.
21. Respectfully submitted this 27th day of November, 2006.
| /s/ Neil W. Fleming |
| NEIL W. FLEMING |
| Attorney ID # 02887 |
| For: Fleming, DuBois & Fleming, PLLP |
| Attorneys at Law |
| PO Box 633 |
| Cavalier, North Dakota 58220 |
| Telephone No. (701) 265-8446 |
| Facsimile No. (701) 265-8947 |
| Attorney for the Appellant |