State v. McNally

Under ORS 162.247(3)(b), the phrase "passive resistance" refers to noncooperation with a peace officer’s lawful order that does not involve violence or active conduct, whatever the motivation for the noncooperation.

Defendant petitioned for judicial review from the Court of Appeals’ decision which affirmed Defendant’s conviction for interfering with a peace officer. ORS 162.247(1)(b). Defendant assigned error to the Court of Appeals holding that Defendant was not entitled to a passive resistance instruction on the basis that there was no evidence in the record to support a finding that Defendant was engaged in an act or technique associated with “government protest or civil disobedience.” On review, Defendant argued that he was entitled to the jury instruction because “passive resistance” refers to “any interference or disobedience that is not physical or active.” Defendant further contended that “a political motive is not required.” State responded that the Court of Appeals was correct in interpreting “passive resistance” as meaning more than merely non-physical interference or disobedience. Under ORS 162.247(3)(b), the phrase ‘passive resistance’ refers to noncooperation with a peace officer’s lawful order that does not involve violence or active conduct, whatever the motivation for the noncooperation. The Supreme Court held Defendant was entitled to his proposed “passive resistance” instruction because there was evidence Defendant “engaged in inactive, nonviolent noncooperation” when the officer ordered him to leave the bus station. Reversed and remanded. Kistler, J., filed an opinion concurring in the judgment, in which Landau and Brewer, JJ. joined.