When is mouthing off to police an APO?

Edwin Cheek v. United States, No. 12-CM-1213 (decided November 20, 2014)

Players: Associate Judges Thompson & Easterly, Senior Judge Nebeker. Opinion by Judge Nebeker. James E. Drew for Mr. Cheek. Trial Judge: Yvonne Williams.

Facts: Two police officers observed two girls fighting in the street near a “disorderly crowd” of 20-30 people who were watching the fight. When the officers approached, one of the girls tried to run, but Officer Blier handcuffed and began to question her. As he did so, another female moved in his direction and began yelling. Officer Blier told her to get off the street, and she complied. Mr. Cheek then came “within ten feet” of Officer Blier, staggering as though “extremely intoxicated,” yelled at him about how he’d treated the woman, and ignored his order to back up. Another citizen led Mr. Cheek away from the scene, but he returned several minutes later, at which point he continued screaming at Officer Blier about why he’d slammed the girl to the ground, and again disobeyed the officer’s commands to back up.

Issues:

·         Was the evidence sufficient to convict Mr. Cheek of assault on a police officer (“APO”) for “interfering” with Officer Blier’s investigation under D.C. Code § 22-405(b)?

·         Did the trial court plainly err under the First Amendment by convicting Mr. Cheek of APO based on mere speech?

Holding: Mr. Cheek was properly convicted of APO. The sufficiency and First Amendment analyses in this context turn on substantially the same question: whether Mr. Cheek’s conduct went “beyond speech and mere passive resistance” and “cross[ed] the line into active confrontation” that impeded Officer Blier’s investigation. Op. at 4, 7. The Court concluded that the totality of the circumstances as described above satisfied this test, without placing special emphasis on any particular subset of facts.

Practice notes:

·         This case should be fairly easy to distinguish, given that the Court’s legal analysis substantially repeats the facts without making clear which ones matter most. JM.

Read full opinion here.