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Episode V: Resistance is Futile

To recap our story, Charles and Donna found their young daughter with her boyfriend after curfew, and a yelling match ensued in front of the family home. When James, the boyfriend, called the police out of fear for an escalating situation, the officers who arrived on scene ended up taking James himself into custody for drugs they found in his vehicle. After the chaos subsides, Brianna runs away from the family home, incurring scratches on her face as she does so. In panic, not knowing where their daughter has gone, Donna and Charles call the police.

When the police see the abrasions on Brianna’s face, they immediately assume that someone put them there, and mostly based on their prior interaction, they assume that someone is Charles, and they take him into custody.

For better or worse, demonstrative self-expression is a salient part of Charles’ personality. He was vocally adamant that he was innocent, protesting the handcuffs as they were being slapped on. On this particular night, his impassioned pleadings of innocence probably earned him a night in jail for resisting arrest.

Why Do Prosecutors Charge Resisting Arrest?

Resisting arrest is hardly ever a standalone offense simply because by definition, there must be another arrest to resist. Sometimes, police officers make a note in the offense report that such charges are probably warranted. Other times, there is not enough evidence to proceed with the primary charge and resisting arrest is a fallback position, since as outlined below, an invalid arrest is no defense to this charge. But much more commonly, the state’s attorney who first reviews the report and decides what charges to file makes this move because these lawyers almost always charge the most serious offense(s) that the facts in any way support.

In general, a physical act (which could be pulling away from an officer) is resisting, and providing false information or refusing to “move along” immediately after the officer issues this edict is considered obstructing.

Elements of the Offense

The phrase “resisting arrest” is inherently vague because that act could literally be anything from bludgeoning the officer with a blunt object to politely asking the officer to repeat a question. 720 ILCS 5/31-1 does little if anything to narrow the concept, as it defines resisting arrest as “knowingly resist[ing] or obstruct[ing] the performance by one known to the person to be a peace officer, firefighter, or correctional institution employee of any authorized act within his or her official capacity.”

This offense is a Class A Misdemeanor (maximum one year in jail and/or $2,500 fine). If the officer is injured, and that “injury” could be incredibly minor, the offense is a Class 4 felony (maximum one to three years and/or $25,000 fine). There are also mandatory minimums of 48 hours incarceration and 100 hours community service. Supervision is unavailable, so any conviction is a permanent one.

Possible Defenses

Resisting arrest is almost as hard to defend as it is to define. The latter part of the statute — “authorized act” — suggests that if the officer lacked probable cause for the arrest, the subject has a defense, but that is normally not the case. However, if the officer used excessive force (another term that is rather poorly defined), the defendant might have a self-defense argument.

In the pre-body camera and social media era, most resisting cases boiled down to the defendant’s version of the events versus the police officer’s version, and the defendant had almost no chance of winning that argument. But today, there may be video evidence, and jurors, as a whole, are less deferential to police officers than they used to be.

What will the judge say upon reviewing the evidence against Charles? Perhaps more importantly, what will his wife say when he walks back through the front door?

Contact Aggressive Attorneys

Resisting arrest is a serious charge with serious implications. For a confidential consultation with an experienced criminal law attorney in Schaumburg, contact Glasgow & Olsson.

(image courtesy of JP Valery)

Episode IV: Don’t You Dare Lay a Hand on Her

To recap our story, Charles and Donna found their young daughter with her boyfriend after curfew, and a yelling match ensued in front of the family home. When James, the boyfriend, called the police out of fear for an escalating situation, the officers who arrived on scene ended up taking James himself into custody for drugs they found in his vehicle. After the chaos subsides, Brianna runs away from the family home, incurring scratches on her face as she does so. In panic, not knowing where their daughter has gone, Donna and Charles call the police.

The police had already been out to the house once, and no one was in a very good mood when they returned. When they see the abrasions on Brianna’s face, they immediately assume that someone put them there, and mostly based on their prior interaction, they assume that someone is Charles, and they take him into custody. Will he now be condemned to a period of hard labor at the county jail and branded as a domestic batterer for the remainder of his life?

22 states have zero tolerance, mandatory arrest policies in domestic violence situations. Illinois does not have a statewide mandatory arrest law, but most law enforcement agencies in Chicagoland do have such policies. So, if the police respond to a domestic disturbance call and there is some evidence of physical injury, they are required to make an arrest, and in nearly all cases, they arrest the male participant in the conflict. These laws were controversial when they were passed, and they remain controversial today.

Zero Tolerance Policies

The idea behind a mandatory arrest policy is a solid one because it stands to reason that if the police remove the probable abuser, they completely defuse the domestic violence bomb, at least for the time being. However, the policies have some unintended consequences. For example, some recent evidence suggests that abused women do not call the police in mandatory reporting jurisdictions because they fear reprisals. There are many variables, such as race, ethnicity, and economic status to consider, and the sample size for the study was rather small, but the results may be enough to reinvigorate the zero-tolerance debate.

Perhaps more significantly, zero tolerance policies effectively transform police officers into jurors, a role that they are probably not qualified to fill. Under the state’s domestic battery law, the alleged victim need not suffer a physical injury to constitute abuse because “physical contact of an insulting or provoking nature with any family or household member” is sufficient to support a conviction.

A first offense under this section is a Class A misdemeanor; a subsequent offense is a Class 4 felony. If there are aggravating circumstances, such as the presence of a child or the use of a weapon, the penalty may be higher.

Mandatory reporting policies mean that some innocent people, such as Charles, will be jailed alongside the vast majority of alleged assailants who, at least arguably, committed a criminal offense. However, this issue also means that these cases are easier to defend at trial because the prosecutor’s case is sometimes hopelessly weak and entirely dependent upon the alleged victim’s testimony.

Domestic Violence and Divorce Proceedings

Since the burden of proof is lower and the interests are different (the best interests of the children as opposed to the protection of society), domestic violence cases often have a tremendous effect on divorce cases.

The allegation alone is probably enough to significantly weaken a custody request, and a finding of liability is probably enough to sink the case entirely.

However, in terms of visitation, the effect is usually more limited. There is a strong presumption in the law that it is in the best interests of the children for them to have consistent and meaningful contact with both parents. For that reason, judges are quick to order anger management classes, neutral exchange points, and perhaps supervised visitation, but extremely hesitant to significantly limit visitation time for a convicted abuser.

Contact Tenacious Attorneys

In both criminal and family court, an aggressive defense to domestic battery allegations is often the only way to preserve your rights. For a confidential consultation with an experienced criminal law attorney in Schaumburg, contact Glasgow & Olsson.

(image courtesy of Rene Bohmer)

Episode III: Spare the Rod and Spoil the Child?

To recap our story, Charles and Donna found their young daughter with her boyfriend after curfew, and a yelling match ensued in front of the family home. When James, the boyfriend, called the police out of fear for an escalating situation, the officers who arrived on scene ended up taking James himself into custody for drugs they found in his vehicle, and taking Charles into custody, as well, for suspected domestic battery, when his daughter was discovered with scratches on her face.

What will happen to Charles, who now faces an investigation into his treatment of his own daughter. Did he cause those scratches on her face? Did he go to far in his disciplining of his daughter, causing her to run away from home and injure herself? In what ways is Charles legally liable? Somewhere, although it is often difficult to tell exactly where, there is a line that separates discipline of a child from abuse. This issue once again drew national attention back in 2014, when Texas officials charged Minnesota Vikings running back Adrian Peterson with child abuse after he allegedly disciplined his 4-year-old son with a “switch.”

Here in Illinois, the law forbids “excessive” corporal punishment, which means that corporal punishment is legal in the home. The law does not define what is considered excessive. Overall, courts have not helped very much. They have repeatedly declared that “reasonableness” limits the parental right to discipline children, but this key word is not really defined, either.

Domestic Battery

Nearly all prosecutions under 720 ILCS 5/12-3.2 involve spousal abuse or some similar situation, such as a boyfriend hitting a girlfriend. The law broadly applies to “any family or household member,” a phrase that obviously includes an adult caregiver (parent, guardian, foster parent, or temporary caretaker who is also a relative due to blood or marriage) and a child.

Domestic battery is serious business. A first offense is a Class A misdemeanor (up to one year in jail and a $2,500 fine). Moreover, these convictions cannot be sealed or expunged under any circumstances, so a conviction is permanent.

The Parental Discipline Defense

This doctrine comes from People v. Roberts, a 2004 case, which held that “A parent is legally justified in using reasonable force when necessary as part of reasonable discipline of a child.” In Roberts, the court did not even really decide whether or not what the defendant allegedly did was “reasonable;” instead, the court simply held that an instruction worded in this way was legally acceptable.

All this begs the question of what is “reasonable.” No one really knows, but here are some possible parameters:

  • The child’s age and physical condition,
  • The child’s alleged disciplinary infraction,
  • Amount of evidence against the child (i.e. did the parent actually see the child misbehave or was the misbehavior reported by a sibling),
  • Prior ineffective discipline (e.g. time out did not work, so I had to escalate),
  • Elapsed time between infraction and discipline,
  • The nature of the injury to the child, and
  • The parent’s post-discipline behavior.

No one area is dispositive because in some cases, discipline that breaks the skin or causes another noticeable injury may be reasonable.

One final thought. Since the instruction uses the word “reasonable” twice, the standard is subjective. In other words, if the parent believed that the discipline was fair and called for under the circumstances, that fact will carry tremendous weight with the jury and may well result in a finding of not guilty. On the other hand, if the parent was intoxicated at the time, clearly punished the child out of anger, or some other similar circumstances exist, the jury may well reach the opposite conclusion, as the parent was arguably incapable of determining what was “reasonable” at that moment in time.

What will happen to Charles? Will he be charged with domestic battery, or will the facts of the case clear his name? Tune in next time to find out.

Contact Assertive Attorneys

Caregivers may have a valid defense against child abuse charges in Illinois. For a confidential consultation with an experienced criminal law attorney in Schaumburg, contact Glasgow & Olsson.

(image courtesy of Kevin Gent)