Opinion
A155712
06-30-2020
In re D.M., a Person Coming Under the Juvenile Court Law. THE PEOPLE, Plaintiff and Respondent, v. D.M., Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Contra Costa County Super. Ct. No. J18-00028)
In this juvenile delinquency proceeding pursuant to Welfare and Institutions Code section 602, D.M. contends the court erred in finding that he resisted a peace officer within the meaning of Penal Code section 148. Specifically, he argues there was insufficient evidence that the peace officer was acting lawfully in the performance of his duties. We will affirm.
I. FACTS AND PROCEDURAL HISTORY
A juvenile wardship petition alleged that D.M. resisted, obstructed, or delayed a peace officer in violation of Penal Code section 148, subdivision (a)(1). The matter proceeded to a contested jurisdictional hearing.
A. Jurisdictional Hearing
1. Prosecution Case
Terrie Rachal testified that in 2017 she was employed as a secretary to an administrator, "Mr. Beede," at Freedom High School in Oakley, California. Rachal's desk was located outside of Beede's office, positioned in such a way that one could either walk past her desk to enter Beede's office or turn right and go behind her desk; by school rule, however, the area behind her desk was off-limits to students. School policy also prohibited students from having their phones out during class or in the office. If a phone was confiscated, the student could retrieve it after the school day ended at 3:00 p.m.
About 12:30 p.m. on December 6, 2017, a teacher walked into Rachal's office area "very fast and abruptly" and said, "I've had it, I've had it." The teacher was upset and handed Rachal a phone, which Rachal placed near her desk. D.M. followed closely behind and exchanged words with the teacher, after which Rachal told D.M. to sit and wait for Beede.
Beede eventually brought D.M. into his office. After "a while," D.M. came out of Beede's office, approached Rachal in the off-limits area behind her desk, and told her that he wanted his phone. Rachal told D.M. that he needed to leave the area because students were not allowed there. D.M. repeated that he wanted his phone. Beede replied he would get it back after school, but D.M. continued to demand his phone, standing "right over [Rachal's] shoulder."
D.M. then started opening the drawers of Rachal's desk. She told him to stop and to leave the area, but he went "from side to side" behind her while continuing to open her drawers. Rachal stood up, yelled "[s]top opening my drawers . . . [y]ou need to get back behind," and slammed a drawer shut, hoping he would leave.
Oakley Police Officer Casey Minister—assigned to Freedom High School as its "school resource officer"—was in a room next door when he heard Rachal yelling something to the effect of "Officer Minister, help." Minister maintained an office at the school and was known as the school resource officer to D.M. and the rest of the students. He was wearing his school resource officer uniform, including a badge, an insignia on his shirt indicating he was a school resource officer with the Oakley Police Department, and, in defense counsel's words, a "duty belt." At the time, he was tending to an unrelated "5150-type situation with another student."
Rachal testified that she did not call for help, but yelled for D.M. to stop going through her drawers and to leave the prohibited area.
Officer Minister responded to Rachal's call for help and observed that she was "frantic" and "upset," she was yelling that D.M. needed to get away from her, and D.M. was standing behind Rachal's desk. Minister knew students were not allowed in the area; in fact, there is a line on the floor with words stating students are not permitted there.
Officer Minister instructed D.M. to go into Beede's office. D.M. refused, yelling profanities and stating, in the officer's words, "he wasn't going anywhere, he needed his phone back." D.M. tried to continue to "rifle through the drawers in . . . Rachal's desk looking for his cell phone."
Officer Minister placed his hand on D.M.'s arm (or touched his arm) to guide him into Beede's office and "[k]ind of push[ed] him in there a little bit" to "get his attention away from his cell phone and from [Rachal] because they were in a heated confrontation." D.M. again refused to comply.
D.M. "violently" pulled away from the officer. Officer Minister then grabbed D.M.'s arm and the back of his sweatshirt and walked with him into Beede's office. D.M. was yelling and cursing and trying to break free, "basically" saying, "give me my f''ing phone back, bruh, . . . don't f''ing touch me."
Once they were in Beede's office, Beede closed the door and Officer Minister let go of D.M. and told him to have a seat, hoping he would calm down. But D.M. "spun around" and "got in [the officer's] face," about six inches away. Noticing that D.M.'s fists were clenched and believing D.M. was going to attack him, Minister "kind of grabbed" D.M.'s shoulders or "upper arm area," turned him around "so he couldn't punch [the officer]," pushed him away, and performed a "leg sweep takedown."
Officer Minister ordered D.M. to place his hands behind his back; D.M. refused, tried to get up, yelled profanities, told the officer not to touch him, and hurled racial slurs. Beede helped Minister hold D.M on the floor for a couple of minutes while another person retrieved zip ties to restrain him (Minister was not carrying his handcuffs at the time). D.M. continued struggling for "a minute or so." Even after Minister applied the zip ties, D.M. continued to yell and curse.
The entire incident took somewhere between a "couple" of minutes and five minutes. D.M. did not sustain any injuries or ever complain of any pain.
2. Defense Case
D.M. testified that, on December 6, 2017, one of his teachers confiscated his phone and told him he could retrieve it at the end of the day. He went to the office to try to retrieve his phone, knowing he was not supposed to do so. Rachal told him to "go from behind the desk" and "back away," but he refused. Officer Minister came into the office and—purportedly without saying anything to D.M.—grabbed D.M. by the waist and "threw [him into Beede's] office." Once in Beede's office, D.M. claimed, Minister "threw [D.M.] on the desk" and told him to put his arms around his back. D.M. admitted that he was "being loud" and "cussing" at the officer. At some point, Minister "took [D.M.] to the ground" and he and Beede "got on [D.M.'s] back" and pressed their knees into it for five to 10 minutes until they put zip ties around his wrists, which hurt because "[t]hey put it [as] tight as it could go." D.M. admitted knowing that Minister was a police officer at the school.
3. The Court's Decision
Defense counsel conceded that D.M. did not have the right to demand his phone back, enter the area behind Rachal's desk, or rifle through her drawers to retrieve his phone. However, counsel argued, the allegation against D.M. should not be sustained because Officer Minister was not lawfully performing his duties, since he did not have "the tools of the trade" to handcuff D.M. and he used "excessive force."
The juvenile court ruled that the allegation under Penal Code section 148, subdivision (a)(1) was true. The court found that Officer Minister and Rachal were credible, D.M. was not credible, and Minister was merely trying to "usher [D.M.] away to get him into the administrator's office to get him out of the public there for all the kids to see a commotion and, actually, for confidentiality . . . because he was fighting the whole time, and screaming and yelling profanities." The court observed: "What on earth do you expect a police officer to do? He's struggling the whole time. I don't know what we expect officers to do nowadays. To walk away? To use a gun? I mean, he's trying to do what his duty is." The court concluded that D.M. "absolutely beyond a reasonable doubt" violated the statute.
B. Further Proceedings
At a disposition hearing, the juvenile court adjudged D.M. a ward of the court with no termination date and ordered him to serve one weekend in juvenile hall and 60 days on home supervision. This appeal followed.
II. DISCUSSION
Penal Code section 148, subdivision (a)(1) proscribes "willfully resist[ing], delay[ing], or obstruct[ing] any public officer, peace officer, or an emergency medical technician . . . in the discharge or attempt to discharge any duty of his or her office or employment . . . ."
Except where otherwise indicated, all statutory references hereafter are to the Penal Code.
"A person violates this statute if he or she willfully resists, delays, or obstructs a peace officer engaged in the performance of his or her duties, and the person knew or reasonably should have known that the other person was a peace officer engaged in the performance of his or her duties." (In re J.C. (2014) 228 Cal.App.4th 1394, 1399.)
A defendant cannot be convicted of the offense if the officer was acting unlawfully at the time. (People v. Simons (1996) 42 Cal.App.4th 1100, 1109; In re Joseph F. (2000) 85 Cal.App.4th 975, 982.) When an officer makes a command he has no legal duty to make, or uses force in excess of that allowed by law, a person is not guilty under the statute for his response to the officer's unlawful conduct. (See In re R.M. (2018) 22 Cal.App.5th 582, 591-592.)
D.M. contends the court's adjudication under section 148 must be reversed on two grounds: (1) there was insufficient evidence that Officer Minister was performing his legal duty at the time, because there was no direct evidence that his duties extended to policing noncriminal violations of school rules, and (2) Minister acted unlawfully, because he lacked reasonable suspicion to detain D.M. for criminal wrongdoing and his initial use of force was not authorized by statute or reasonable under the Fourth Amendment to the United States Constitution. Neither ground has merit.
A. Engaged in the Performance of His Duties
The undisputed evidence was that Officer Minister was both a sworn police officer and assigned to Freedom High School as a school resource officer. It was further undisputed that at the time of the incident, Minister was on duty on school grounds, known by D.M. to be a police officer, and wearing his school resource officer uniform that included a badge, insignia, and duty belt.
By law, a school resource officer has a responsibility to help promote school order and protect students and school staff from violence and mistreatment. In particular, a school resource officer is deemed a "school official." (In re Joseph F., supra, 85 Cal.App.4th at p. 986; In re K.J. (2018) 18 Cal.App.5th 1123, 1131.) And school officials are tasked with fulfilling California's constitutional mandate that school campuses be "safe, secure and peaceful." (Cal. Const., art. I, § 28, subd. (c); see New Jersey v. T.L.O. (1985) 469 U.S. 325, 350 [school has obligation to protect pupils and teachers from mistreatment by other pupils]; In re Joseph F., supra, 85 Cal.App.4th 975, 986 [school officials include "police who assist in maintaining general order on school campuses"].)
Furthermore, Officer Minister's actions were consistent with promoting school safety and protecting school personnel. He responded to what he believed were Rachal's cries for help, observed Rachal in distress and yelling that D.M. needed to get away from her, saw D.M. standing behind Rachal's desk in an area where he was not allowed, directed and guided D.M. into the principal's office to diffuse the situation, and only as D.M. resisted did he escalate his efforts. Attempting to ensure Rachal's safety and D.M.'s compliance with school rules, dissuade D.M. from his loud and disruptive behavior, and maintain order in the school were well within the scope of his legal duty to promote school safety. Substantial evidence supported the conclusion that Minister was performing his duty.
D.M.'s arguments to the contrary are unpersuasive. First, he draws a distinction between school resource officers, employed by the police department, and school security officers, employed by the school district. (See Ed. Code, § 38001.5 [school security officer is employed by school district]; In re M.M. (2012) 54 Cal.4th 530, 533 [school security officer is not a sworn peace officer but a public safety officer employed by the school district].) But the distinction is unavailing. Both school resource officers and school security officers assist in keeping schools safe and orderly, and the fulfillment of that duty does not depend on who pays the officer's salary. (In re William V. (2003) 111 Cal.App.4th 1464, 1470-1471 [the school has a duty to protect students from dangers posed by anti-social activities, and "[t]he fulfillment of the school's duty should not be dependent on whether the school district or the city employs the security officer"]; see In re K.J., supra, 18 Cal.App.5th at p. 1131.) If anything, the school resource officer has broader responsibilities and authority, since the school resource officer is a sworn law enforcement officer who retains all the authority of a police officer.
D.M. further argues that the prosecution presented no direct evidence regarding the scope of Officer Minister's duties—particularly, whether his duties extended to policing noncriminal violations of school rules. Defense counsel made no argument on this ground in the juvenile court. But in any event, the logical inference from the undisputed evidence in this case—that a police officer is on duty at a school as its school resource officer—is that the officer would be able to intervene in a confrontation to protect school staff from students who refuse to abide by school rules. Certainly Officer Minister was not compelled to stand idly by as Rachal frantically called for him to help her and to get D.M. away from her. Nor should Minister have to dial 911 to summon a police colleague who had not been assigned to the school and hope his colleague arrives before any harm is done. To suggest that a police officer assigned as a school resource officer could not intervene in the midst of a "heated confrontation" between a student and school staff in an area where students are not allowed is, quite frankly, untenable.
We must not forget that a school resource officer is, in fact, a police officer. D.M. provides no authority for the idea that a police officer acts outside the scope of his duties if he guides a juvenile toward another room in order to calm a heated confrontation over the minor's violation of school rules, perhaps preventing an assault in the process. Although no one asked Officer Minister at the hearing why he intervened specifically, the record shows he personally observed facts indicating D.M. was willfully disturbing the peace with loud and unreasonable noise (§ 415, subd. (2)) and willfully disturbing a public school (Ed. Code, § 32210).
Respondent argues that Officer Minister was acting within the scope of his duties because he was detaining D.M. to investigate whether the crime of disturbing the peace had occurred. (See In re K.J., supra, 18 Cal.App.5th at p. 1129 [school official may detain a student for questioning on campus if the detention is not arbitrary, capricious, or to harass].) D.M. responds that Minister did not testify that he detained him to investigate the possibility of that crime, and the prosecutor did not make such an argument at the hearing. We need not and do not reach this issue.
D.M.'s reliance on In re R.M., supra, 22 Cal.App.5th 582, is misplaced. There, a minor refused to go to school. A deputy sheriff, assigned to the school and responsible for campus security and matters such as truancy, escorted her in a patrol car from her home to the school. After she got out of the patrol car, the deputy told her to go to class. She refused, the deputy arrested her for resisting, and the trial court sustained the allegation. (Id. at pp. 585-587.) The court of appeal reversed, concluding that the officer had discharged his duty by bringing the minor to the school and had no legal duty thereafter to make her attend. (Id. at p. 591.) The court's ruling was narrow: "[A] peace officer executing a truancy arrest has no duty to ensure the truant minor actually attends class. Once the minor taken into temporary custody has been delivered 'to the school from which the minor [was] absent,' by its terms, the arresting officer's statutory duty under Education Code section 48265 has been fulfilled. At that point, responsibility falls to school officials to handle the matter." (Ibid.) The issue in R.M.—whether or not a school resource officer has a legal duty to ensure a student goes to class—is light years away from whether a school resource officer acts within the scope of his duties when intervening in a "heated confrontation" between a student and staff who summoned his help. While the minor in R.M. refused to obey a statement made by an officer after his legal duty was discharged, D.M. refused to obey a statement made by an officer during the discharge of his legal duties.
B. Acting Lawfully
D.M. argues that Officer Minister was not acting lawfully when he detained him, because the officer purportedly (1) lacked a reasonable suspicion that D.M. was committing or had committed a crime and (2) used excessive force to effect the detention.
1. Reasonable Suspicion
D.M. contends Officer Minister lacked reasonable suspicion sufficient to detain him because he was suspected of violating two school policies—using his cell phone on campus during school hours and entering a prohibited area—rather than committing a crime.
However, reasonable suspicion that a crime was afoot was unnecessary in this context. Detentions of minor students on school grounds require only that the detention not be arbitrary, capricious, or for the purpose of harassment. (In re Randy G., (2001) 26 Cal.4th 556, 567 [applying this standard to school security officers]; In re William V., supra, 111 Cal.App.4th at p. 1471 [extending the standard to school resource officers].) Officer Minister's detention of D.M. was not arbitrary, capricious, or for the purpose of harassment.
D.M. insists that In re William V. was wrongly decided. His argument is not persuasive. (See In re K.J., supra, 18 Cal.App.5th at pp. 1129-1131 [following In re William V.]; In re K.S. (2010) 183 Cal.App.4th 72, 80.)
2. Excessive Force
An officer does not lawfully act within the scope of his duties when he uses excessive force. (People v. Olguin (1981) 119 Cal.App.3d 39, 46.) "The reasonableness of a particular use of force is judged from the perspective of a reasonable officer on the scene, not by the 20/20 vision of hindsight. The inquiry is an objective one: Was the officer's action objectively reasonable in light of the facts and circumstances confronting him, without regard to his underlying intent or motivation?" (In re Joseph F., supra, 85 Cal.App.4th at p. 989.) We review for sufficient evidence. (Ibid.)
Substantial evidence supports the conclusion that Officer Minister applied only such force as was reasonable under the circumstances. Upon seeing D.M. yelling and standing behind Rachal's desk, Minister orally directed D.M. to go to Beede's office. D.M. responded with a profanity-laced refusal, vowing that he was not going anywhere as he pawed through Rachal's drawers for his phone. The officer responded by placing his hand on D.M.'s arm to guide him into Beede's office and "kind of push[ed] him in there a little bit." D.M. provides no legal authority holding that such "force" was excessive or improper under the circumstances here.
D.M. then escalated the matter by choosing to "violently" pull away from Officer Minister. Minister grasped D.M.'s arm and the back of his sweatshirt and walked him into Beede's office. D.M. provides no authority that this level of force was excessive either.
D.M. continued to attempt to pull away from Officer Minister, yelling at him to return his phone and not to touch him. Once inside Beede's office, Minister let go of D.M. but D.M. spun around, clenched his fists, and got just six inches from the officer's face, causing Minister to believe D.M. was going to attack him. The officer responded by grabbing D.M.'s shoulders, turning him around so D.M. could not punch him, and—careful not to "slam him to the ground" or cause him to "hit[] his head" on anything—performed a leg sweep to take D.M. to the ground. D.M. still resisted as Minister tried to secure his arms behind his back. Minister's "escalating efforts at detention were reasonable given appellant's resistance." (In re Joseph F., supra, 85 Cal.App.4th at p. 985.)
D.M. argues that Officer Minister's "initial use of force" was unlawful because section 835a (reasonable force to make an arrest), section 196 (deadly force), and Education Code section 44807 (authorizing a certificated employee of a school district to exert the same physical control a parent might legally assert, to the extent reasonably necessary) do not authorize a police officer to use force against a person suspected only of noncriminal violations of the school rules. In particular, D.M. argues, section 835a provides that a peace officer "who has reasonable cause to believe that the person to be arrested has committed a public offense may use reasonable force to effect the arrest, to prevent escape or to overcome resistance," but there was no reasonable cause to believe D.M. committed a public offense, so Officer Minister should not have placed his hand on his arm and pushed him.
Education Code section 44807 reads: "Every teacher in the public schools shall hold pupils to a strict account for their conduct on the way to and from school, on the playgrounds, or during recess. A teacher, vice principal, principal, or any other certificated employee of a school district, shall not be subject to criminal prosecution or criminal penalties for the exercise, during the performance of his duties, of the same degree of physical control over a pupil that a parent would be legally privileged to exercise but which in no event shall exceed the amount of physical control reasonably necessary to maintain order, protect property, or protect the health and safety of pupils, or to maintain proper and appropriate conditions conducive to learning. The provisions of this section are in addition to and do not supersede the provisions of Section 49000." --------
D.M.'s argument is unavailing. In the first place, we question D.M.'s proposition that a school resource officer—a sworn and trained police officer assigned to the school for safety purposes—should have less authority to use "physical control" than a teacher or other school district employee is permitted under Education Code section 44807. Such a conclusion runs counter not only to common sense, but to our long-standing recognition of the "cooperation between school and police officials" when violations of the criminal law or "student code of conduct" are at issue. (In re K.S., supra, 183 Cal.App.4th at p. 80.) Certainly Officer Minister's efforts to get D.M. into Beede's office reflect no greater exercise of physical control than what could lawfully be exercised by a parent, as reasonably necessary to maintain order.
Furthermore, D.M. does not establish that section 835a, which allows reasonable force in effecting an arrest, necessarily precludes a police officer from placing his hand on a recalcitrant student's arm and guiding him into the principal's office with "kind of [a] push" in order to diffuse a "heated confrontation" at school.
D.M. lastly argues that even a minimal use of force is unreasonable and unlawful under these circumstances pursuant to the Fourth Amendment, citing Lanigan v. Village of E. Hazel Crest (7th Cir. 1997) 110 F.3d 467, 475 and Chelios v. Heavener (7th Cir. 2008) 520 F.3d 678, 691-692. But neither of those cases support that conclusion. Both recite that "police officers do not have the right to shove, push, or otherwise assault innocent citizens without any provocation whatsoever," but D.M. was hardly an "innocent citizen." Moreover, as Lanigan itself admonished: " 'Not every push or shove, even if it may later seem unnecessary in the peace of a judge's chambers, violates the Fourth Amendment. The calculus of reasonableness must embody allowance for the fact that police officers are often forced to make split-second judgments— in circumstances that are tense, uncertain, and rapidly evolving—about the amount of force that is necessary in a particular situation.' " (Lanigan, supra, 110 F.3d at p. 475, quoting Graham v. Connor (1989) 490 U.S. 386, 396-397.)
Under the Fourth Amendment, the reasonableness of an officer's force turns on the circumstances of the case, including the severity of the crime, the suspect's immediate threat to safety, and whether the suspect is actively resisting. (E.g., Thompson v. County of Los Angeles (2006) 142 Cal.App.4th 154, 164.) Here, D.M. has not established that no force was necessary under the circumstances; to the contrary, in light of the important public purpose of school safety and order, D.M.'s disruption to the school and confrontation with school staff, and D.M.'s resistance to the officer's direction, substantial evidence supported the conclusion that the slight force Officer Minister initially employed was not excessive under the circumstances.
D.M. fails to establish error.
III. DISPOSITION
The order is affirmed.
/s/_________
NEEDHAM, J. We concur. /s/_________
JONES, P.J. /s/_________
SIMONS, J.