Chief Judge Washington expresses concern about government's decision to prosecute APO cases that arise from Mobile Crisis contacts with mentally ill individuals

Foster v. United States (decided April 21, 2016).

Players: Chief Judge Washington, Judge Fisher, and Senior Judge Steadman. Opinion by Chief Judge Washington. Concurring opinion also by Chief Judge Washington. Anna B. Scanlon for Mr. Foster. Trial judge: Yvonne Williams.  

Facts: Mr. Foster has schizophrenia, and a Mobile Crisis psychiatric team responded to his home after his mother called the Department of Health for help. At least two police officers accompanied the Mobile Crisis team to assist and “keep the peace.” When Mr. Foster refused to go with the crisis team for evaluation, the officers attempted to handcuff him—though he was not under arrest—“and a scuffle ensued,” during which the police sprayed him with pepper spray. Mr. Foster “shouldered” past one officer and left the house before dropping to his knees when the pepper spray took effect. He ultimately ended up face down on the ground as officers tried to handcuff him, lying on his hands, kicking his legs, and trying to breathe. He was convicted of APO for “pushing” or “shouldering” past the officer as he left the house and resisting arrest when police tried to handcuff him.   

Issue: Was the evidence sufficient to support the conviction for APO?           

Holding: Yes. Because the officers were in full uniform and explained their presence to Mr. Foster when they attempted to handcuff him, there was sufficient evidence that he knew they were police officers. And because he used his shoulder to move past one officer and actively resisted handcuffing by lying on his hands and kicking his legs, there was sufficient evidence of “the ‘active and oppositional’ conduct necessary for APO.”                 

Of Note: Chief Judge Washington wrote a separate concurrence to “express [his] concern” about the decision to prosecute APO charges in cases like this. He explained that he is “troubled that the presence of the police during these mental health visits can result in an individual being charged with a criminal offense because we have criminalized active oppositional resistance to the authority of the police.” If police officers are going to accompany the Mobile Crisis team, he “hope[d] that those individuals who have the discretion to decide whether to criminally prosecute individuals who fail to comply with lawful orders will think twice before inflicting what could be considered a greater harm, in the form of a criminal charge and conviction, on a very vulnerable population.”  MW

Read full opinion here.