The Supreme Court Creats Another Hot Mess

One night five years ago outside a tavern in Toledo, Lincoln County, a man was charged with resisting arrest and assaulting a police officer.

On Oct. 8 the Oregon Supreme Court set aside his convictions in a ruling that reaffirms a citizen's right to defend himself, even against a cop trying to arrest him, if he believes the arresting officer is using unlawful excessive force.

Let us hope the ruling is not misunderstood: It does not give you license to try to fight any cop who's trying to take you into custody, even if you think the arrest is without cause. You have the right to do that only if the police act unlawfully, and in the heat of the moment that determination is hard to make so it stands up in court many years after the fact.

As in every case, the details of this one are important. The court went into great detail concerning what happened that night, some time before 9 p.m. on Dec. 21, 2004, on a Toledo street.

An officer on patrol, 6-3 tall and weighing 260 pounds, tried to stop a woman for jaywalking. Her boyfriend, Kenneth Wood, under 6 feet and weighing 160-180 pounds, came from across the street to learn what was going on. The officer told him to stop approaching. When Wood didn't, the policeman decided to arrest him for interfering and ordered him to the ground. Wood said he hadn't done anything but lay down, with his hands under his body.

The policeman ordered him to put his hands behind his back. Wood did not comply, and the officer sprayed him in the face with pepper spray. (The court said the spray is designed to be used from a few feet away, not inches as in this case.) This caused Wood to thrash about. The officer, kneeling on him, slammed him in the back eight times, yelling at him to show his hands.

Meanwhile, the woman's mother had emerged from an apartment house nearby, and others had come out of the tavern across the street to watch.

In the course of the struggle with Wood, one of his hands got cuffed, and Wood stood up, got an arm around the officer's waist and forced him down. A second patrolman arrived and hit Wood on the shoulder and brachial nerve and cuffed the second hand.

The court decision turned on the nature of the jury instructions during the trial of Wood and the mother and daughter.

The court ruled the jury should have been instructed that Wood had the right to self-defense against excessive force, and it was Wood's point of view, not the officer's, that had to be taken into account.

The case was sent back to the trial court, and whether the ruling helps Wood avoid conviction is unknown. It's hard to see how a person being hammered by the police under these kinds of circumstances is supposed to know what is excessive and unlawful force, and whether it's OK to try to defend oneself.

In similar situations, the best advice flowing from this case is for bystanders to keep their distance and for the cops to stay cool and not to overreact. (hh)