Accordingly, the prosecution was required to establish that defendant 'was in actual physical control' of his car while he was 'under the influence.' " Id. (citing People v. Long, 316 Ill. App. 3d 919, 926 (2000)). "A defendant is guilty of driving under the influence if the prosecution proves that a driver was under the influence of a drug or alcohol to a degree that rendered him incapable of driving safely.

¶ 49 Jones next argues that his conviction must be reversed because McNeal's grand jury testimony was given to the jury in error. Although it is improper during deliberations for the jury to view items which have not been entered into evidence (People v. Long, 316 Ill. App. 3d 919, 928 (2000)), such error is only cause for reversal if the defendant was thereby prejudiced. People v. Taylor, 166 Ill. 2d 414, 438-39 (1995) (error in giving jury access to slip opinion was "harmless beyond a reasonable doubt"); Long, 316 Ill. App. 3d at 928 ("Where an error of this type could not have reasonably affected the outcome of the trial, the verdict will be affirmed").

Under Illinois law, a party commits the offense of resisting or obstructing a peace officer when he "knowingly resists or obstructs the performance of one known to the person to be a peace officer . . . (in) any authorized act within his official capacity." See, 720 ILCS 5/31-1; People v. Long, 316 Ill. App. 3d 919, 927, 738 N.E.2d 216, 221 (2000). The act of resisting or obstructing by the defendant must be a physical attempt to thwart or impede the officer in the performance of his duties.

¶ 31 Defendant disagrees, arguing that he was prejudiced by the admission of the evidence referenced above. However, the cases he relies on as support, including People v. Radovick, 275 Ill. App. 3d 809 (1995), and People v. Long, 316 Ill. App. 3d 919 (2000), are distinguishable. In Radovick, the trial court erroneously allowed grand jury testimony implicating the defendant of other murders, which this court deemed "extremely prejudicial" in a murder trial and which "had no probative value whatsoever to the issues before the court."

"In fact," we continued, "the First Amendment protects even profanity-laden speech directed at police officers." Id.; see also People v. Long, 316 Ill.App.3d 919, 250 Ill.Dec. 252, 738 N.E.2d 216, 222 (2000) ("Merely arguing with a police officer" even using abusive language — does not constitute resisting a peace officer."); People v. Flannigan, 131 Ill.App.2d 1059, 267 N.E.2d 739, 741-42 (1971) (disrespect for the law, antagonism, or belligerence is insufficient to constitute resisting or obstructing a peace officer).

It is well settled under Illinois law — and was well settled at the time of Payne's arrest — however, that the resistance must be physical; mere argument will not suffice. People v. Weathington, 82 Ill.2d 183, 44 Ill.Dec. 496, 411 N.E.2d 862, 863-64 (1980); People v. Raby, 40 Ill.2d 392, 240 N.E.2d 595, 599 (1968); People v. Long, 316 Ill.App.3d 919, 250 Ill.Dec. 252, 738 N.E.2d 216, 222 (2000); People v. Martinez, 307 Ill.App.3d 368, 240 Ill.Dec. 442, 717 N.E.2d 535, 538 (1999); People v. Hilgenberg, 223 Ill.App.3d 286, 165 Ill.Dec. 784, 585 N.E.2d 180, 183 (1991); Ryan v. County of DuPage, 45 F.3d 1090, 1093 (7th Cir. 1995) (collecting cases). In fact, the First Amendment protects even profanity-laden speech directed at police officers. City of Houston v. Hill, 482 U.S. 451, 461, 107 S.Ct. 2502, 96 L.Ed.2d 398 (1987).

It is clearly established law that this alone is not a reason to arrest someone. People v. Long, 738 N.E.2d 216, 222, 316 Ill. App. 3d 919, 250 Ill. Dec. 252 (2000) ("Merely arguing with a police officer—even using abusive language—does not constitute resisting a peace officer."); Jones v. Clark, 630 F.3d 677, 684-85 (7th Cir. 2011) ("mere argument with a policeman" did not supply arguable probable cause for obstruction); Gonzalez v. City of Elgin, 578 F.3d 526, 541 (7th Cir. 2009) (right to be free from arrest not supported by probable cause "has been clearly established for a long time"); Payne v. Pauley, 337 F.3d 767, 776 (7th Cir. 2003) ("well settled" that "mere argument" is insufficient to violate § 31-1). Thus, Roberson's actions did not supply probable cause or arguable probable cause for resisting an officer or obstruction under § 31-1 as to the initial arrest.

"Merely arguing with a police officer—even using abusive language—does not constitute resisting a peace officer." People v. Long , 316 Ill.App.3d 919, 250 Ill.Dec. 252, 738 N.E.2d 216, 222 (2000). There is a substantial factual question on whether Tenorio committed the type of physical act that would be required for resisting a peace officer. Of course, as discussed above, Tenorio denies touching either officer.

Here, however, the conversation occurred between Petitioner and private parties. The Supreme Court has not held that Doyle applies to conversations between defendants and private parties, see Burton v. Lewis, 2012 WL 2322495, *8 (C.D. Cal. 2012), and courts have held that Doyle does not, see, e.g., Southerland v. Berghuis, 2006 WL 1007888 (E.D. Mich. 2007); People v. Hollinquest, 190 Cal.App.4th 1534, 1556 (2010), cert. denied, 132 S.Ct. 310 (2011); State v. Neeper, 160 N.H. 11, 14-15 (2010); People v. Long, 316 Ill.App.3d 919, 931 (2000). Regardless, in the absence of any clearly established Supreme Court authority on the issue, Petitioner is not entitled to habeas relief.

The court stated that “ ‘[i]t is well settled under Illinois law ... that the resistance must be physical; mere argument will not suffice.’ ” Id. (quoting Payne v. Pauley, 337 F.3d 767, 776 (7th Cir.2003)). Furthermore, the court cited Illinois precedent for the rule that using abusive language against officers does not constitute resisting or obstructing, and that “disrespect for the law, antagonism, or belligerence is insufficient to constitute resisting or obstructing a peace officer.” Id. (citing People v. Long, 316 Ill.App.3d 919, 250 Ill.Dec. 252, 738 N.E.2d 216, 222 (2000); People v. Flannigan, 131 Ill.App.2d 1059,267 N.E.2d 739, 741–42 (1971)). Deputy Koester argues that the Court should disregard Gonzalez in light of a later Illinois Supreme Court case that held that “it is evident that ‘obstruct’ encompasses physical conduct that literally creates an obstacle, as well as conduct the effect of which impedes or hinders progress.”