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IN THE COURT OF APPEALS OF THE STATE OF ALASKA
DAVID JURCO, )
) Court of Appeals No. A-3382
Appellant, ) Trial Court No. 3KN-89-435 Cr
)
v. )
) O P I N I O N
STATE OF ALASKA, )
)
Appellee. ) [No. 1205 - February 14, 1992]
________________________________)
Appeal from the District Court, Third
Judicial District at Kenai, Lynn H.
Christensen, Judge.
Appearances: David Jurco, pro se, Talkeetna,
for Appellant. Joseph N. Levesque, Assistant
District Attorney, Kenai, and Douglas B.
Baily, Attorney General, Juneau, for
Appellee.
Before: Bryner, Chief Judge, and Coats and
Mannheimer, Judges.
MANNHEIMER, Judge.
BRYNER, Chief Judge, dissenting.
David Jurco was convicted, following a jury trial in
district court, of disorderly conduct, AS 11.61.110(a)(6), and
resisting arrest, AS 11.56.700(a)(1). These offenses resulted
from a confrontation between Jurco and members of the State
Troopers who had come to Jurco's residence to serve a court order
directing them to take possession of Jurco's truck. The Kenai
District Court had ordered seizure of the truck in connection
with a civil action filed by the State seeking forfeiture of the
vehicle because it had been used in furtherance of a violation of
the fish and game laws.
Unbeknown to the troopers, Jurco had recently filed for
bankruptcy. The federal bankruptcy court had directed Jurco not
to sell or transfer any of his property or allow creditors to
take any of his property without court order. Jurco believed
that the bankruptcy court's directive obliged him to resist the
troopers' attempt to seize his truck. At first, Jurco argued
with the troopers. Finding he could not dissuade them, Jurco got
into the truck and started it. With Trooper Eugene Kallus trying
to hang on to the side of the truck, Jurco drove the truck away
to a different location on his property. Jurco then got out of
the truck, removed the battery from the vehicle, and began to let
the air out of the truck's tires.
At this point, Trooper Kallus informed Jurco that he
was placing him under arrest for disorderly conduct. Kallus
attempted to handcuff Jurco, but Jurco resisted; he broke free
from Kallus's hold and ran into his house. Eventually, after
Jurco spoke on the telephone with Kallus's superior officer,
Jurco decided to come out of the house and surrender himself.
1. Regardless of the Validity of the District Court's
Order to Seize Jurco's Truck, Jurco Was Properly
Convicted of Disorderly Conduct and Resisting
Arrest
Jurco argues that the criminal prosecution against him
should have been dismissed under the supremacy clause of the
United States Constitution (Art. VI, clause 2). He asserts that,
because he had filed for bankruptcy, the Alaska District Court
lacked power either to order forfeiture of his truck or to issue
a warrant for its seizure.
But even if we assume for purposes of argument that
Jurco's interpretation of bankruptcy law is correct, the question
remains whether Jurco was entitled to forcibly resist the
troopers when they came to execute the Kenai District Court's
warrant. We conclude that Jurco was not entitled to forcibly
resist the troopers even if he reasonably believed that the
seizure of his truck was illegal.
As a preliminary matter, even if Jurco were legally
entitled to forcibly resist the troopers' taking of his truck --
so that his attempts to thwart this taking did not constitute the
crime of disorderly conduct -- Jurco would still be properly
charged with resisting arrest. As will be discussed in more
detail below, even if a person is being subjected to unlawful
arrest by police officers, Alaska law does not allow that person
to use force to resist the arrest (so long as the officers do not
use excessive force in making the arrest). AS 11.81.400(a).
Once the troopers undertook to arrest Jurco for disorderly
conduct, Jurco was obliged not to resist this arrest even if the
disorderly conduct charge was invalid. Thus, Jurco's claim that
he was entitled to forcibly resist the taking of the truck calls
into question only his conviction for disorderly conduct, not his
conviction for resisting arrest.
Jurco was charged with disorderly conduct under AS 11.
61.110(a)(6), the provision of the statute which forbids a person
from "recklessly [creating] a hazardous condition for others by
an act which has no legal justification or excuse". The State
argued that Jurco had put Trooper Kallus at risk when he drove
the truck across the property. Jurco responded that his obstruc
tion of the troopers was legally justified or excused because he
acted under a reasonable belief that the Kenai District Court
(and thus the officers executing that court's order) had no
authority to seize his truck.
At common law, a public officer was authorized to use
reasonable force against other persons when executing a court
order requiring or authorizing the officer to seize another
person's property. LaFave and Scott, Substantive Criminal Law
(1986), 5.5(a), Vol. 1 at 641. This common-law rule has been
codified in Alaska; AS 11.81.420 provides:
Justification: Performance of public duty.
(a) Unless inconsistent with AS
11.81.320 - 11.81.410, conduct which would
otherwise constitute an offense is justified
when it is required or authorized by law or
by a judicial decree, judgment, or order.
(b) The justification afforded by this
section also applies when ... the person
reasonably believes the conduct to be
required or authorized by a decree, judgment,
or order of a court of competent jurisdiction
or in the lawful execution of legal process,
notwithstanding lack of jurisdiction of the
court or defect in the legal process[.]
Under this statute, law enforcement officers are empowered to use
force to execute court decrees, even if it is later shown that
the court had no authority to issue the decree. Thus, in Jurco's
case, the State Troopers were authorized to use all reasonable
force to
execute the Alaska District Court's order to seize Jurco's
vehicle, even if Jurco was correct in claiming that the pendency
of his bankruptcy petition deprived the state district court of
the judicial authority to issue orders affecting his property.
However, the common law also recognized a principle
that is seemingly in contradiction to the rule just discussed: a
property owner was entitled to use force to resist an unlawful
taking of his property. "One whose lawful possession of property
is threatened by the unlawful conduct of another, and who has no
time to resort to the law for its protection, may take reasonable
steps, including the use of force, to prevent or terminate such
interference with the property." LaFave and Scott, Substantive
Criminal Law, 5.9(a), Vol. 1 at 668. This second common-law
rule has also been codified in Alaska; AS 11.81.350(a) provides:
Justification: Use of force in defense of
property and premises.
(a) A person may use nondeadly force
upon another when and to the extent the
person reasonably believes it is necessary to
terminate what the person reasonably believes
to be the commission or attempted commission
by the other of an unlawful taking or
damaging of property or services.
For purposes of deciding this appeal, we assume that
Jurco reasonably believed that the Kenai District Court's order
to seize his truck ran afoul of the federal bankruptcy court's
order to keep his property together. In such a situation, the
joint operation of AS 11.81.420 and 11.81.350(a) would seemingly
allow Jurco to use force against the troopers to resist the
taking of his truck while at the same time authorizing the
troopers to respond with force of their own against Jurco --
creating an escalating confrontation that would end only when the
troopers resorted to deadly force against Jurco. (The statute
allowing Jurco to use force, AS 11.81.350(a), authorizes only the
use of "nondeadly force", while the statute allowing the troopers
to use force, AS 11.81.420, contains no such limitation.)
This could not have been the legislature's intention.
With emotions running high on both sides, a property owner who
sees that non-deadly force is not enough to make law enforcement
officials back down might well begin (unlawfully) to use deadly
force on the officers. Or, in the heat of the moment, the
officers might mistakenly conclude that the property owner has
begun to use deadly force upon them and respond in kind. Both
possibilities could easily lead to the infliction of serious
injury or death.
Thus, the question presented by Jurco's case is: which
of these two statutes did the legislature intend to take prece
dence when law enforcement officers attempt to execute a court
order calling for the seizure of property? We conclude that a
person is not entitled to use force to resist the taking of
property by law enforcement officers pursuant to a court order.
When the Alaska legislature enacted the present
criminal code in 1978, modern common law had already taken the
position that a person did not have the right to forcibly resist
police officers performing their duty (unless the officers used
excessive force). For instance, courts had restricted a
citizen's right to use force to resist an arguably illegal
search. United States v. Woodring, 536 F.2d 598, 599-600 (5th
Cir. 1976); United States v. Ferrone, 438 F.2d 381, 389-390 (3rd
Cir. 1971); State v. Doe, 583 P.2d 464, 466-67 (N.M. 1978); and
State v. Hatton, 568 P.2d 1040, 1045-46 (Ariz. 1977). See also
State v. Mattila, 712 P.2d 832 (Ore. App. 1986) (there is no
right to use force to obstruct police officers serving a
contested eviction notice).1
The major Alaska court decision on this subject is
Miller v. State, 462 P.2d 421 (Alaska 1969). In Miller, the
Supreme Court confronted -- and rejected -- the old common-law
rule that entitled a person to use non-deadly force to resist a
peaceable unlawful arrest:
We feel that the legality of a peaceful
arrest should be determined by courts of law
and not through a trial by battle in the
streets. It is not too much to ask that one
believing himself unlawfully arrested should
submit to the officer and thereafter seek his
legal remedies in court. Such a rule helps
to relieve the threat of physical harm to
officers who in good faith but mistakenly
perform an arrest, as well as to minimize
harm to innocent bystanders. The old common
law rule has little utility to recommend it
under our conditions of life today.
Miller v. State, 462 P.2d at 427.
While Miller dealt with resistance to arrest, not
resistance to the judicial seizure of property, attorneys and
legislators could easily foresee the extension of the Miller rule
to seizures of property. Under Miller, citizens having good
reason to believe they were being unlawfully arrested were
nevertheless obliged to submit peaceably to a deprivation of
their personal liberty and await their day in court. The rule
could hardly be different when, under a disputed court decree, a
citizen was being deprived of a lesser interest -- the possession
of personal property.
The rule established in Miller, that a citizen was not
entitled to use force to resist even an unlawful arrest, was the
law in Alaska when the legislature began its consideration of a
revised criminal code in the mid-1970's. The Criminal Code
Revision Subcommission recommended retention and codification of
the Miller rule. See Alaska Criminal Code Revision, Tentative
Draft, Part 2 at 43 (proposed AS 11.21.200) and at 66 (commen
tary). However, the legislature specifically reinstated a citi
zen's right to forcibly resist an illegal arrest when it enacted
the original version of AS 11.81.400, contained in section 10 of
chapter 166, SLA 1978:
Justification: Use Of Force In Resisting Or
Interfering With Arrest.
(a) A person may not use force to resist
the arrest of himself ... by a peace officer
who is known to him, or reasonably appears to
be, a peace officer, whether the arrest is
lawful or unlawful, unless ...
(2) the person resisted the arrest of
himself and
(A) the arrest was unlawful;
(B) the person knew the arrest
to be unlawful; and
(C) the person did not use
deadly force in resisting the ar
rest.
The legislature did not include any similar provision in
AS 11.81.350(a), the section dealing with defense of property, or
in AS 11.81.420, the section authorizing police officers to use
force to enforce court decrees.
Moreover, immediately following their reinstatement of
the rule authorizing forceful resistance to an arrest, the legis
lature began to reconsider and recede from their decision.
In 1980 (the first legislative session after the new criminal
code took effect), the legislature voted to place the burden on
the arrested person of proving that the resistance to the arrest
was justified, and to have the trial judge, not the jury, decide
the issue of the legality of the arrest. 26 ch 102 SLA 1980.
Two years later, the legislature returned to the position adopted
by the supreme court in Miller, repealing all the portions of
AS 11.81.400 that authorized forceful resistance to a peaceable
arrest. Ch 63 SLA 1982.
Thus, when a person believes he or she is being
arrested unlawfully by an identified police officer, Alaska law
requires that person to submit peaceably to the officer and wait
to litigate the validity of the arrest in a court of law. The
same beneficial policies underlying this rule apply with equal
force when an identified police officer attempts to take
possession of property pursuant to a court decree.
As the supreme court pointed out in Miller, society
would be ill-served by a rule that allowed property owners to
engage in combat with law enforcement officers whenever there was
reason to doubt the validity of the court order carried by the
officers. A rule allowing forcible resistance would achieve only
a dubious social benefit, but it would certainly jeopardize the
safety of police officers, property owners, and bystanders. To
paraphrase the supreme court in Miller, the legality of a court
order directing seizure of property should be determined by
courts of law, not through trial by battle.
In fact, the Alaska Supreme Court recently indicated
that the rule forbidding forcible resistance to law enforcement
officers does indeed apply when personal property is at stake.
In Thompson v. Anderson, Opinion No. 3803 (Alaska, January 24,
1992), the court ruled that a bailee of another person's property
does not commit the tort of conversion when the bailee complies
with a police demand to surrender the property to police custody
-- whether or not the police demand is lawful. The court stated,
"[E]ven if the bailee suspects or knows that a police seizure is
unlawful, ... [t]o require a bailee to resist a police demand to
turn over property would be to promote public disorder and poten
tially violent confrontations." Slip opinion at 8.
As noted above, the Alaska legislature briefly rein
stated the common law rule that allowed such battles between
officers and private citizens who disputed the legality of an
arrest. Soon, however, the legislature re-established the rule
and policies announced in Miller. When the legislature modified
AS 11.81.400 to make it conform to Miller, the legislature made
no simultaneous change to either AS 11.81.350(a) or AS 11.81.420
--thereby indicating that the 1978 criminal code had never been
intended to confer a right of forcible resistance to court-
ordered seizures of property.
This view of these two statutes is also supported by
the fact that the Legislature has imposed an affirmative duty on
citizens to assist police officers in the performance of their
duties. AS 11.56.720(a) provides:
Refusing to assist a peace officer or
judicial officer.
A person commits the offense of refusing
to assist a peace officer or judicial officer
if, upon a request, command, or order by
someone the person knows to be a peace
officer or judicial officer, that person
fails to make a good faith effort to physical
ly assist the officer in the exercise of
official duties.
It would not make sense for the legislature to have meant AS 11.
81.350(a) to authorize citizens to forcibly resist police efforts
to enforce a court order for seizure of property while at the
same time requiring those same citizens, under AS 11.56.720(a),
to physically assist the officers once the officers had requested
or commanded this assistance.
Our interpretation of AS 11.81.350(a) and AS 11.81.420
is also consonant with AS 12.35.040, governing the authority of
police officers executing a search warrant. This statute
provides:
In the execution or service of a search
warrant, the officer has the same power and
authority in all respects to break open any
door or window, to use the necessary and
proper means to overcome forcible resistance
made to the officer, or to call any other
person to the officer's aid as the officer
has in the execution or service of a warrant
of arrest.
For these reasons, we conclude that when a person is
confronted by a police officer (1) who is known to be or reason
ably appears to be a police officer, and (2) who is known to be
or reasonably appears to be required or authorized to take
possession of the person's property under a judicial decree,
judgement, or order, that person must submit peaceably to the
officer's taking of the property. If there is any question
regarding either the validity of the court decree itself or the
scope of the officer's seizure of property under the decree, the
owner or possessor of the property must wait to litigate that
question in court.
It follows that Jurco was not entitled to forcibly
resist the State Troopers' efforts to seize his truck under the
order issued by the Kenai District Court. When he did so, and
when his resistence created a hazardous condition for others, his
actions formed a proper basis for a criminal charge of disorderly
conduct. Our resolution of this issue also disposes of Jurco's
claim that he was entitled to have the trial jury instructed to
acquit him of disorderly conduct if they concluded that he had
reasonably believed the Kenai District Court's order to be
invalid.
2. The Troopers Could Arrest Jurco Without a Warrant
Jurco also argues that his arrest was illegal because
the troopers did not have an arrest warrant. Jurco acknowledges
that AS 12.25.030 authorizes police officers to arrest without a
warrant when a misdemeanor is committed in their presence, but he
claims that this statutory authority is limited by AS
12.25.180(a), which provides:
When a person is stopped or contacted by
a peace officer for the commission of a misde
meanor or the violation of a municipal ordi
nance, the person may, in the discretion of
the contacting peace officer, be issued a
citation instead of being [arrested], unless
(1) the person does not furnish
satisfactory evidence of identity;
(2) the contacting officer has
reasonable and probable cause to
believe the person is a danger to
self or others;
(3) the crime for which the
person is contacted is one
involving violence or harm to
another person or to property; or
(4) the person asks to be taken
before a judge or magistrate under
AS 12.25.150.
Jurco has misread this statute. AS 12.25.180(a) authorizes a
police officer to issue a citation to a misdemeanor offender in
lieu of making an arrest, unless one of the four enumerated excep
tions applies. But the statute does not require a police officer
to follow this course.
Additionally, the facts of Jurco's case appear to fall
within the third exception listed in the statute. Because Jurco
fought with Trooper Kallus and because Jurco was in the process
of dismantling and disabling his truck when he was arrested,
Jurco's crimes involved violence and harm to property. This
being so, AS 12.25.180(a) would have prohibited Trooper Kallus
from issuing Jurco a citation in lieu of arrest.
Finally, even if some additional justification were
needed for the troopers' decision to make an arrest instead of
issue a citation, that justification was present. It was clear
that Jurco was intent on thwarting the troopers' performance of
their duty under the court order directing seizure of Jurco's
truck; the troopers could reasonably conclude that Jurco would
continue to impede their efforts unless he were physically taken
into custody.
3. Despite a Pre-trial Discovery Violation, Jurco Was
Not Entitled to a Continuance of His Trial
Toward the end of the prosecution's case-in-chief,
during Jurco's cross-examination of the State's final witness,
Trooper Kallus, Jurco discovered that Kallus was referring to
pages of a police report that Jurco did not have. The prosecu
ting attorney and Jurco conferred; it turned out that Jurco was
missing ten pages of discovery materials. These ten pages com
prised: Jurco's prior criminal record, three pages of a report
filed by Kallus, a three-page report filed by Trooper Donna
Edmond (a State's witness who had already testified), and a one-
and-one-half-page synopsis prepared by Trooper JoAnna Roop of an
interview she conducted with witness Thomas Ware (who likewise
had already testified).
The parties vigorously debated whether the State had
violated Alaska Criminal Rule 16 or whether Jurco had received
and then lost the ten pages. The trial court eventually ruled
that the State had, through oversight, failed to send the
ten pages to Jurco.
The trial court gave Jurco an hour's continuance to
examine the ten pages. When court was reconvened, the judge
asked Jurco what he wished to do about this matter. Jurco
announced that he was prepared to resume his interrupted cross-
examination of Kallus, and that he then proposed to make his
motion for judgement of acquittal (since Kallus was the final
witness for the State). Jurco wished to reserve his right to
seek a continuance of trial in the event the trial judge denied
his motion for judgement of acquittal. The court agreed to
Jurco's proposal.
Jurco finished his cross-examination of Kallus, then
unsuccessfully moved for a judgement of acquittal. Immediately
following the trial judge's denial of this motion, Jurco asked
for a continuance of trial. His stated reason for seeking a
continuance was that he was not a trained lawyer, this was his
first criminal trial, and he felt he could not go forward without
having more time to prepare. The trial judge responded that
Jurco would have to be more specific.
Jurco then said he would be satisfied if he could
re-call both Trooper Edmond and Thomas Ware as hostile witnesses
during his defense case. Jurco claimed that Trooper Edmond's
undisclosed report contained statements that were inconsistent
with her trial testimony and that Trooper Roop's summary of her
interview with Ware contained things that Ware had not said on
the stand when he testified during the prosecution's
case-in-chief.
The assistant district attorney announced he had no
opposition to re-calling Trooper Edmond. With respect to re-
calling Ware, the district attorney offered a counter-proposal:
that Ware's entire tape-recorded interview with Trooper Roop,
previously offered as Defense Exhibit A, would be stipulated into
evidence, and that Trooper Roop would herself be made available
as a defense witness.
Jurco initially indicated this was satisfactory, but
then he decided to request a 60-day continuance. Jurco's only
articulated reason for rejecting the proposal was that he did not
know exactly what evidence he was missing -- that he could not be
sure what he did not have.
The prosecutor responded that no prejudice to the
defense could possibly have arisen from Jurco's late receipt of
the ten pages. The prosecutor pointed out that, after receiving
the three pages of Kallus's report, Jurco had chosen to continue
his cross-examination of Kallus rather than seek a continuance.
Regarding the portions of the ten pages attributable to Trooper
Edmond and Trooper Roop, both of these witnesses were still
available to give testimony during the defense case -- and the
court had already ruled that they would be considered hostile
witnesses, thus allowing Jurco to ask them leading questions.
Moreover, Trooper Roop's synopsis of her tape-recorded interview
with Ware was only that -- a synopsis; Jurco had received a
timely copy of the tape itself, containing Ware's complete
statement.
The trial judge ruled that Jurco had failed to demon
strate any prejudice stemming from his late receipt of the ten
pages. The judge also ruled that, since Jurco had already had
one hour to examine the ten pages, and given the fact that Jurco
would soon have the advantage of a long lunch break (apparently
from 12:30 p.m. until 3:00 p.m.) to further examine the
documents, Jurco would have plenty of time to discover any
inconsistencies between previous witnesses' testimony and the
version of events related in the ten pages. For these reasons,
the court denied Jurco's request for a continuance.
The trial judge's ruling on Jurco's request for a
continuance of trial was premised on the conception that it was
Jurco's burden to demonstrate he had been prejudiced by the
State's failure to make proper discovery. This allocation of the
burden of proof was explicitly rejected by the supreme court in
Bostic v. State, 805 P.2d 344 (Alaska 1991). In Bostic, the
court held that, at least in the context of mid-trial discovery
violations, it is the government's burden to disprove prejudice
rather than the defendant's burden to establish it. Id. at 348-
49.
However, the trial judge's error in placing the burden
of proof on the wrong party makes no difference to the outcome
here. Even though the government bears the burden of proof under
Bostic, the defendant must set forth a plausible way in which his
or her defense could be prejudiced by the government's failure to
make timely disclosure. Jurco's request for a continuance of
trial was ultimately grounded on his claim that the evidentiary
concessions discussed above were inadequate to protect his right
to a fair trial. But, as noted by the trial judge, Jurco failed
to articulate any specific way in which he would remain
prejudiced after receiving the favorable treatment offered by the
court and the prosecutor.
Jurco's only assertions were (1) that he was not
trained as an attorney and he therefore felt uncomfortable
proceeding with the trial, and (2) that he could not be sure what
evidence he was missing. Neither of these assertions is
sufficient to warrant a continuance.
When Jurco chose to represent himself at trial, he took
on the burden of conducting the trial without formal legal train
ing. Jurco told the trial court that, from his one-hour examina
tion of the late-disclosed police reports, the inconsistencies
between the police reports and the various witnesses' previous
testimony were clear to him. This being so, Jurco was not
entitled to two months to decide how best to cross-examine the
witnesses with the police reports.
As to Jurco's assertion that he could not be sure
exactly what evidence he was missing, the trial court found that,
given Jurco's familiarity with the case and the disclosure
already made, Jurco could digest the contents of the ten new
pages in the three hours available to him. Jurco never disputed
the sufficiency of the three hours later in the trial.
Thus, even viewing the record in the light most
favorable to Jurco -- that is, employing a summary judgement
standard of review because of the trial judge's misallocation of
the burden of proof -- Jurco's allegations of prejudice were
insufficient to establish even a prima facie showing that his
case had been damaged by the late disclosure of the ten pages.
For this reason, we conclude that the trial judge's misallocation
of the burden of proof was harmless error, and that Jurco was not
entitled to a continuance of the trial.
Conclusion
The judgement of the district court is AFFIRMED.
BRYNER, Chief Judge, dissenting.
I disagree with the court's decision to affirm Jurco's
disorderly conduct conviction. In my view, Jurco was entitled to
an instruction on his theory of defense on this charge: that he
was seeking to protect his property from what he reasonably
believed to be an unlawful taking.
Under Alaska law, the right to use force in defense of
property is expressly defined by statute. In AS 11.81.350(a),
Alaska's legislature has explicitly authorized a person to "use
nondeadly force upon another when and to the extent the person
reasonably believes it is necessary to terminate what the person
reasonably believes to be . . . an unlawful taking . . . of
property . . . ."
The majority of this court effectively amends the
defense of property statute by engrafting to it an exception that
the legislature evidently chose not to include. The court does
so in reliance on its own notions of desirable social policy. It
is not this court's prerogative, however, to substitute its
political views for those expressed by the legislature in the
clear and unrestricted language of AS 11.81.350(a).
The court attempts to justify its decision by reliance
on Miller v. State, 462 P.2d 421, 426-27 (Alaska 1969). That
case dealt with an individual's right to use force to resist an
unlawful, but peaceable arrest by a police officer. When Miller
was decided, no legislative enactment defined the right to use
force in self-defense. Under the common law rule, applicable by
default in the absence of controlling statute, individuals were
allowed to defend themselves against unlawful arrests. The
Alaska Supreme Court, however, noted a recent trend away from the
traditional common law rule. Finding strong social policies
supporting this trend, the court modified the common law rule and
precluded the use of force in self-defense against a police
officer attempting to make a peaceable arrest, regardless of the
legality of the officer's conduct.
We no longer operate in a statutory void. The Alaska
legislature has spoken, adopting a comprehensive statutory scheme
that defines the extent to which force may be used in self-
defense, as well as in defense of property. See AS 11.81.330
(use of nondeadly force in self-defense); AS 11.81.335 (use of
deadly force in self-defense); AS 11.81.340 (use of force in
defense of a third person); AS 11.81.350 (use of force in defense
of property and premises); AS 11.81.400 (use of force in
resisting or interfering with arrest).
As an integral part of this scheme, the legislature has
adopted a specific statutory provision that embodies the rule
adopted in Miller, precluding the use of self-defense against a
police officer who attempts to make a peaceable but unlawful
arrest. See AS 11.81.400. In contrast to this limitation on the
use of force against a police officer in self-defense, the
legislature has notably omitted any comparable restriction on the
permissible use of force to prevent the unlawful taking of
property by an officer.
Given the legislature's enactment of a comprehensive
scheme regulating permissible use of force in defense of both
persons and property, its inclusion in that scheme of a
restriction against use of self-defense against police officers,
and its omission of any comparable restriction for use of force
in defense of property, this court is no longer free, as was the
supreme court in Miller, to modify the law simply because we
believe it is a good idea. Nor are we free to modify the law
simply because we believe the legislature may have acted
unwisely.
We may not simply assume that the legislature acted in
ignorance in failing to include additional limitations in AS
11.81.350(a). Absent compelling evidence to the contrary, we
must presume that the legislature knew what it wanted and that
its enactments accurately reflect its intent. Yet there is no
indication here -- let alone any compelling evidence -- that the
legislature's failure to limit the defense of property statute
was inadvertent or the product of misdirection or miscalculation.
The legislature was fully aware of Miller when it
enacted the current statutory scheme. As pointed out in the
majority opinion, the legislature initially declined to follow
Miller, omitting restrictions both as to self-defense and defense
of property. It ultimately elected to adopt Miller's
restrictions on self-defense. Had the legislature wanted to take
the same course of action with respect to the right to use force
in defense of property, it could have, and presumably would have
done so.2
The presumption that the legislature knew what it was
doing in omitting any exception from the defense of property
statute would be overcome if the omission were irrational. But
it is not. The majority opinion suggests that it makes no sense
to apply the Miller rationale to self-defense without extending
it to the defense of property. In fact, however, the two
defenses are different and have historically been accorded
disparate treatment.
Professor LaFave, for example, discusses the modern
trend toward restricting the use of force in self-defense against
an officer making a peaceable but unlawful arrest. See W.R.
LaFave & A.W. Scott, Substantive Criminal Law 5.7(h), at 663
(1986). LaFave makes no mention of any trend to apply similar
restrictions to the defense of property. See id. at 5.9. See
also P. H. Robinson, Criminal Law Defenses 131(e) & 134 (1984)
(to the same effect as LaFave). Similarly, the Model Penal Code
provision on the use of force in self-protection explicitly
provides that use of force is not justified against a peace
officer. Model Penal Code 3.04(2)(a)(i) (1962). The code's
provision on use of force for protection of property, however,
while enumerating other limitations, contains no comparable
prohibition. Id. at 3.06(3).3
The majority opinion also suggests that, unless limited
in the same way as the self-defense statute, the defense of
property provision would necessarily undermine the rationale of
Miller. This is simply incorrect.
Miller's primary concern was the inherent potential for
mutually escalating violence arising from the conflict between an
officer's right to use all force reasonably necessary to effect
an arrest and the individual's common law right to use all force
reasonably necessary to defend against an unlawful arrest:
Because officers will normally overcome resis
tance with necessary force, the danger of
escalating violence between the officer and
the arrestee is great. What begins as an
illegal misdemeanor arrest may culminate in
serious bodily harm or death.
Miller, 462 P.2d at 426. No similar concern arises in the
context of use of force to defend property.
To begin with, the right to use force in defense of
property, as set forth in AS 11.81.350(a), has been carefully
circumscribed: except in cases of arson and burglary, only
nondeadly force may be used to defend property. This limitation
in itself greatly reduces the potential that, in any given
situation, violence might escalate to the point of death or
serious bodily harm.
Even more significant is the relationship between the
defense of property statute and the restriction against the use
of force to defend against an unlawful arrest, as set forth in AS
11.81.400 -- a relationship that the legislature was certainly
aware of when it decided the extent to which a person could
permissibly use force in defense of property. An officer who is
authorized to seize the property of another person, or who
reasonably believes that such authority exists, will always be
empowered to order the other person to refrain from any act
impeding the seizure. Upon the issuance of such an order, the
person would have a legal duty to obey. See AS 11.56.720(a).
Any resistance from the person that created a hazardous condition
for the officer would provide grounds for an arrest for
disorderly conduct, a class B misdemeanor. See AS 11.61.110(6).
Resistance to the seizure by word or conduct that placed the
officer in fear of imminent physical injury would provide grounds
for arrest for the more serious misdemeanor of fourth-degree
assault. AS 11.41.230(a)(3). Once placed under arrest, the
person's right to use any further force against the officer would
immediately be extinguished under AS 11.81.400, regardless of
whether the person believed the officer to be acting lawfully or
unlawfully.
Thus, given the statutory restriction against use of
force to defend against an unlawful arrest, police officers
already have the ability to avoid the potential for the type of
escalating violence that was the root of the court's concern in
Miller. The addition of similar restrictions to the defense of
property provision is simply unnecessary to achieve this goal.
Jurco's case provides an excellent illustration of the
point. When Jurco resisted the seizure of his truck by conduct
that Trooper Kallus believed created a hazardous condition,
Kallus placed him under arrest for disorderly conduct. At that
point, AS 11.81.400 cut off Jurco's right to use any force
against Kallus. Jurco's decision to persist in his resistance
subjected him to conviction for resisting arrest, regardless of
the lawfulness or unlawfulness of Kallus' efforts to seize
Jurco's property or to make the ensuing arrest.
The only realistic potential for escalating violence
under these circumstances was the potential arising from Jurco's
decision to continue resisting Kallus' attempt to arrest him.
Yet this is precisely the same potential for violence that will
exist in any situation in which a person chooses to act in
defiance of the law. It has no connection to and could not be
eliminated or reduced by redefining the right to defend property.
I do not mean to suggest that the defense of property
statute, as currently written, is more desirable than it would
have been had the legislature restricted it in the same way as it
restricted the self-defense statute. My sole point is that the
statute in its present form, without a judicially-engrafted
exception, is not irrational. Because it is not irrational, it
is the legislature's prerogative, not this court's, to decide
whether it ought to be changed as a matter of public policy.
Since Jurco was given no defense of property
instruction, I would reverse his disorderly conduct conviction.4
_______________________________
1 These cases involved prosecutions under statutes making
it unlawful for a person to obstruct public officers in the
performance of their duties. The Alaska counterpart is AS
11.56.720(a), "Refusing to assist a peace officer or judicial
officer".
2. The majority opinion suggests that the legislature may
not have thought it necessary to enact a specific limitation to
the defense of property provision because it believed that Miller
modified the common law rule with regard to both self-defense and
defense of property. The opinion posits that the legislature may
have concluded that the courts, through application of the common
law on a case-by-case basis, would preclude the use of force
against police officers, both in cases of self-defense and
defense of property. To explain why, under these circumstances,
the legislature saw fit to adopt AS 11.81.400, which expressly
deals with use of force against an officer in self-defense, while
neglecting any similar restriction as to defense of property, the
majority theorizes that AS 11.81.400 was seen not as a limitation
on the right to self-defense set out in AS 11.81.330 and .335,
but rather as a necessary modification of the limitation on self-
defense adopted as a matter of common law in Miller. Thus, in
the majority's view, in enacting AS 11.81.350(a), the legislature
meant to leave intact the limitation on defense of property
applicable via the common law, as modified by the supreme court
in Miller.
This theory is untenable. Miller did not purport to
deal with defense of property. It addressed only the issue of
self-defense. The case did not decide, consider, or even mention
defense of property. Moreover, the majority's theory ignores the
basic nature of the current statutory scheme that defines use of
force in self-defense, defense of property, and defense of
others. The comprehensive nature of this legislation makes it
apparent that the legislature meant to address this subject fully
and did not merely intend to address specific issues not
adequately covered by common law. In fact, if the majority view
were correct in suggesting that the legislature was content with
what it understood to be the common law rule of defense of
property, as modified by Miller, then not only would it have been
unnecessary to enact an exception to the common law rule, it
would also have been unnecessary to enact the common law rule
itself, which the legislature did in AS 11.81.350(a). For the
legislature to have assumed, under these circumstances, that no
statutory limits to the defense of property were needed because
the courts could be counted on to apply Miller in defense of
property cases would have evinced a virtually unprecedented
degree of faith by the legislature in the judiciary.
3. It is interesting to note, in this regard, that the
supreme court of Connecticut has explicitly recognized and upheld
an individual's common law right to resist the unlawful police
entry of a residence to make an arrest, even though the court
acknowledged that, under state law, the individual was precluded
from resisting the unlawful arrest itself. See State v.
Gallagher, 465 A.2d 323, 328 (Conn. 1983). The Connecticut
Supreme Court's willingness to give separate consideration and
disparate treatment to self-defense and defense of property in
this context hardly supports the conclusion that the Alaska
legislature's failure to adopt statutes treating the two defenses
identically was irrational.
4. I agree with the majority's resolution of the remaining
issues in this case.
