State v. Swartz

“[A] person commits the crime of IPO ‘if the person, knowing that another person is a peace officer[,] … [r]efuses to obey a lawful order by the peace officer,’” ORS 162.247(1). Passive resistance means any “noncooperation with a lawful order of a peace officer that does not involve active conduct.” State v. McNally, 361 Or 314, 339 P3d 721 (2017).

Defendant appealed his conviction of one count of Interfering with a Peace Officer (IPO) after he walked away from an officer when officer ordered him to "stop." On appeal, Defendant argued that because his conduct constituted “passive resistance” under ORS 162.247(3)(b). In response, the State argued that walking is “active resistance” and therefore cannot constitute passive resistance, regardless of whether the person starts walking before or after an officer orders him to "stop." “[A] person commits the crime of IPO ‘if the person, knowing that another person is a peace officer[,] … [r]efuses to obey a lawful order by the peace officer,’” ORS 162.247(1). Passive resistance means any “noncooperation with a lawful order of a peace officer that does not involve active conduct.” State v. McNally, 361 Or 314, 339 P3d 721 (2017). The Court held that the trial court did not plainly err under the standard articulated in McNally because it is not obvious and is reasonably disputed that a person who continues walking after being ordered to "stop" may be engaged in "passive resistance" for purposes of ORS 162.247. Affirmed.