Whenever someone gives law enforcement lip, refuses to provide identifying information, or even verbally attempts to interfere with an investigation, our constitutional rights to free speech and to remain silent are in tension with an often-used California law prohibiting resisting, delaying, or obstructing a peace officer, public official, or EMT when that person is engaged in the performance of his or her duties, Penal Code section 148(a)(1).

On December 18th the California Fourth District Court of Appeal in San Diego gave one kid – who knows which of Santa’s lists he landed himself on – an early Christmas present by overturning the finding by the delinquency court that he had committed a misdemeanor. These are the basic facts of In re Chase C., 2015 DJ-DAR 13495: middle school students told police that two high school students had tried to sell them drugs. The police found a group of about ten teens including two, one of them named Hewgley, who fit the description provided by the middle school kids, and ordered them to sit. Hewgley refused and demanded to know why he was being detained. The other kids not suspected of drug involvement, the group that included Chase, questioned the officer. Chase told Hewgley and the other minors not to cooperate with the sheriff’s deputy. Chase was arrested and refused to provide identification (“ID”). At a trial, called a Contested Jurisdictional Hearing in juvenile delinquency proceedings, the court found that Chase had committed a violation of Penal Code section 148(a)(1).

On appeal, the Fourth District analyzed each stage of Chase speaking up or withholding ID and found he had not violated the law. First, the First Amendment protected Chase’s statement to Hewgley not to cooperate. Moreover, Hewgley had already refused to sit down and there was no evidence that Chase’s statement influenced Hewgley. Next, the officer was not entitled to detain the non-suspect group of minors. Chase’s statement to them that they not cooperate did not criminally interfere with that officer’s lawful performance of his duties, since the deputy sheriff was investigating Hewgley and one other minor as suspects and not this group. Finally, Chase had a Fifth Amendment right not to provide ID at the time he refused to do so. Later, as he was being booked at Juvenile Hall, he did provide his identifying information. It would have been a violation of section 148 had Chase refused to provide information at that stage, but he played it smart by cooperating during the booking process. The court reiterated that the lawfulness of an officer’s conduct is “an essential element” of an obstruction offense (emphasis in opinion).

You should never push, fight, pull away, run from, or threaten to hurt officers. Providing information you know is false to officers or continually interrupting an officer during her or his investigation is not protected speech. However, it is not a crime to assert your rights or refuse to provide ID prior to the booking process. If you have been arrested in Humboldt County for speaking up to assert your rights or remaining silent, consider contacting Janssen Malloy LLP for a consultation.