Ray Hrdlicka – Host – Attorneys.Media
“Hi, today we’re sitting with Stuart Kirchick, criminal attorney in Santa Clara, County, California and Santa Cruz County, California. And today we’re talking about a very hot topic, and that is stand alone – what they call “naked 148”, which in layman terms, is the resisting arrest charge, and how it is charged as a single count with nothing else associated with it.
Now there’s been a lot of flack, and there’s been a lot of…pushback from public defender’s office to limit the use of this standalone resisting arrest charge. And in fact, in 2020, the DA’s office has made a commitment to reduce the number of standalone resisting arrest charges. However, a recent case has brought this issue to light, and whether or not that promise, and that a directive, is being followed.
So, Stuart, thank you very much for joining us today. We’d like you to comment on this matter, because today, as we’re speaking, there’s a hearing on this matter going on in Santa Clara, County, regarding that issue. But I wanted you to talk about…from a criminal…criminal defense point of view, how does a resisting arrest charge affect the rest of the charges? And then, how is it ever prosecuted? Or…excuse me, how has it been prosecuted in the past as a standalone charge? And if they’re doing it now.”
Stuart Kirchick– Criminal Defense Attorney – Santa Clara County, CA
“Thanks for having me. You know, resisting arrest charges are…in the past, were very easy charges for someone to be arrested on. If they basically didn’t comply with any police order. If the police got impatient with someone in the street, not necessarily resisting arrest, just literally not following an order, the police would say, “get off the sidewalk and go in your house.” And if the person basically didn’t move quick enough for the officer, it would end up being a 148 charge.
And the problem with that, in terms of, then, the later prosecution by the DA s office, is they’re very easy to prove. The jury instructions make it extremely easy for a jury to convict for pc 148, because it’s delaying, obstructing an officer in the course and scope of their duties. And it’s easy for the officer to get on the stand and just say, I gave an order, they failed to comply in the time that I wanted them to comply with it. And it’s just an easy conviction.“
Ray Hrdlicka – Host – Attorneys.Media
“Well, let me ask this question, doesn’t the type of order. And in taking in context, everything else going around, happening around it. Doesn’t that come into play? Because if it doesn’t, it sure sounds like, this is like a totalitarian in government, where a authoritative figure, the police officer, gives you an order, no matter what that order is, and you must obey. I guess doesn’t seem, sit right with me?”
Stuart Kirchick– Criminal Defense Attorney – Santa Clara County, CA
“Yeah, I agree me neither. And especially when you get down to the jury instruction, and you see how easy it is to convict. The jury instruction even tells the jury, that there’s no particular amount of time that a defendant would have to comply with the order to not be found guilty. So it could be seconds. I mean, it’s not like they’re instructed. Well, if they were given an order, and a minute goes by and there’s no compliance with the order, then you may convict. It’s, literally, they’re instructed, like, it could be seconds of not complying with an order. And as long as the officers clearly, under color of law, wearing their uniform, and the person is not complying with an order, obstructing the officer in the performance of their investigation, they could be found guilty of a 148.
And so as a result, that charge gets abused a lot. It used to be abused a lot, and it would be prosecuted a lot. And for the most part, unfortunately, it was typically from arrests and prosecutions against people of color. And so the statistics bore that out in Santa Clara, County. And as a result, there was this campaign promised from the DA’s office to “Bend the Ark” and try and equal the playing field, if you will, with regard to those charges against minorities.
And now here we have this new case…where, standing alone with no other charge, they’re moving forward with this prosecution, which has led the PD’s office to make…air their public grievance about it rightfully so.”
Ray Hrdlicka – Host – Attorneys.Media
“Well, reading about this case, it seems like the prosecution…The DA’s office has, it’s going to be a challenge here, because the individual, the defendant, complied, and it’s the officer’s word against his.
And in this particular case, just giving some context to the viewers, the police were called about a loud noise emanating from the house based upon a karaoke party. And of course, basically a noise complaint. The individual, now the defendant, turned it down. That seems to be a pivotal point in this whole situation. If they corrected the initial issue, do they…do…the police have any right beyond the initial reason for being there?”
Stuart Kirchick– Criminal Defense Attorney – Santa Clara County, CA
“You know, the police have an amazing amount of discretion in the field. So they respond to a loud noise call. If the loud noise is tempered down, like, then you would think it’s over. Let’s say, the loud noise is turned off. You would think it’s over, but then there’s a bad exchange between the officer and the person who has the loud stereo on…”
Ray Hrdlicka – Host – Attorneys.Media
“Which is what happened here.”
Stuart Kirchick– Criminal Defense Attorney – Santa Clara County, CA
“The officer gets upset, and then it’s like, well, what’s our catch all? What is the catch all charge that we have probable cause for to make an arrest? Well, this person’s not he’s disobeying an order, he or she’s disobeying an order. This is a 148…boom.
And so, the officer in the field has this amazing amount of discretion on a low standard of proof to make an arrest, to make a citation. And obstructing an officer’s investigation, or impairing their ability to do an investigation, or not following an order, can be as simple as just the two of them being upset at one another. And there’s not full and total compliance and obeyance, and therefore person is cited for 148.”
Ray Hrdlicka – Host – Attorneys.Media
“Well, setting aside, and understandably, this issue was raised because of…it’s a disproportional amount of charges on minorities. But that charge, in and of itself, is so open to abuse that it makes sense to limit the use unless…unless it’s an extreme situation.”
Stuart Kirchick– Criminal Defense Attorney – Santa Clara County, CA
“Yeah. And in talking about so open to abuse, we would always see these charges. Whenever any amount of police use of force was utilized.”
Ray Hrdlicka – Host – Attorneys.Media
“Really?”
Stuart Kirchick– Criminal Defense Attorney – Santa Clara County, CA
“Though, that used to be a very common thing. If there was any use of force by the officer onto the person, the person who would get arrested for whatever other charge, would also have a 148 charge, because that charge could justify a reasonable use of force by an officer.”
Ray Hrdlicka – Host – Attorneys.Media
“I see.”
Stuart Kirchick– Criminal Defense Attorney – Santa Clara County, CA
“And that’s a very common charge that we see where there has been some use of force a little or a lot by the police officer against the person arrested.”
Ray Hrdlicka – Host – Attorneys.Media
“Well, the statistics bear that…in the last three years or so, the statistics show that the 148 arrests are down almost 90%. It seems to be a good thing. But in this particular case, they’re pushing the issue.”
Stuart Kirchick– Criminal Defense Attorney – Santa Clara County, CA
“Yeah. And I don’t know why they’re pushing the issue on this particular case. It would seem to me a good thing that the DA’s office could simply do…is drop the case at this point. The defendant has already gone through being arrested, cited, going into court for it. Ok, the point’s made. Now, if you want to comply with your policy at Santa Clara County DA’s office of “Bending the Ark” and not proceeding with these prosecutions, dismiss the case.”
Ray Hrdlicka – Host – Attorneys.Media
“One final question. In the past, of course, the inclusion of the 148 with the charges. If the person found guilty, whatever else have been included in there. Did that add more time, or did that just strengthen the case on the other charges? Or did that add more time if they were going to get any jail or prison time?”
Stuart Kirchick– Criminal Defense Attorney – Santa Clara County, CA
“Sure. I mean, both. The answer is, both. It could add more time. It strengthens the case. It provides a justification…justification for the officer to testify about, in any respect, with use of force that the officer may have used on the arrestee. So it’s a…and again, it’s a really easy case to convince a jury to convict of, because the jury instructions make it that way.”
Ray Hrdlicka – Host – Attorneys.Media
“I see. Wow. Well, thank you very much. Of course, the hearing on this particular case we’re discussing is going on today in Santa Clara County. We’ll…catch up with you in the future, and have you comment again on the subject matter.”
Stuart Kirchick– Criminal Defense Attorney – Santa Clara County, CA
“Sounds good. Thanks for having me.”
Ray Hrdlicka – Host – Attorneys.Media
“Appreciate it.”
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Video – Attorney Stuart Kirchick Discusses The Recent Changes In How Police And The District Attorney’s Office Use Resisting Arrest Charges
Home » video » Legal Commentary » Video – Attorney Stuart Kirchick Discusses The Recent Changes In How Police And The District Attorney’s Office Use Resisting Arrest Charges
Video – Attorney Stuart Kirchick Discusses The Recent Changes In How Police And The District Attorney’s Office Use Resisting Arrest Charges
Ray Hrdlicka – Host – Attorneys.Media
“Hi, today we’re sitting with Stuart Kirchick, criminal attorney in Santa Clara, County, California and Santa Cruz County, California. And today we’re talking about a very hot topic, and that is stand alone – what they call “naked 148”, which in layman terms, is the resisting arrest charge, and how it is charged as a single count with nothing else associated with it.
Now there’s been a lot of flack, and there’s been a lot of…pushback from public defender’s office to limit the use of this standalone resisting arrest charge. And in fact, in 2020, the DA’s office has made a commitment to reduce the number of standalone resisting arrest charges. However, a recent case has brought this issue to light, and whether or not that promise, and that a directive, is being followed.
So, Stuart, thank you very much for joining us today. We’d like you to comment on this matter, because today, as we’re speaking, there’s a hearing on this matter going on in Santa Clara, County, regarding that issue. But I wanted you to talk about…from a criminal…criminal defense point of view, how does a resisting arrest charge affect the rest of the charges? And then, how is it ever prosecuted? Or…excuse me, how has it been prosecuted in the past as a standalone charge? And if they’re doing it now.”
Stuart Kirchick– Criminal Defense Attorney – Santa Clara County, CA
“Thanks for having me. You know, resisting arrest charges are…in the past, were very easy charges for someone to be arrested on. If they basically didn’t comply with any police order. If the police got impatient with someone in the street, not necessarily resisting arrest, just literally not following an order, the police would say, “get off the sidewalk and go in your house.” And if the person basically didn’t move quick enough for the officer, it would end up being a 148 charge.
And the problem with that, in terms of, then, the later prosecution by the DA s office, is they’re very easy to prove. The jury instructions make it extremely easy for a jury to convict for pc 148, because it’s delaying, obstructing an officer in the course and scope of their duties. And it’s easy for the officer to get on the stand and just say, I gave an order, they failed to comply in the time that I wanted them to comply with it. And it’s just an easy conviction.“
Ray Hrdlicka – Host – Attorneys.Media
“Well, let me ask this question, doesn’t the type of order. And in taking in context, everything else going around, happening around it. Doesn’t that come into play? Because if it doesn’t, it sure sounds like, this is like a totalitarian in government, where a authoritative figure, the police officer, gives you an order, no matter what that order is, and you must obey. I guess doesn’t seem, sit right with me?”
Stuart Kirchick– Criminal Defense Attorney – Santa Clara County, CA
“Yeah, I agree me neither. And especially when you get down to the jury instruction, and you see how easy it is to convict. The jury instruction even tells the jury, that there’s no particular amount of time that a defendant would have to comply with the order to not be found guilty. So it could be seconds. I mean, it’s not like they’re instructed. Well, if they were given an order, and a minute goes by and there’s no compliance with the order, then you may convict. It’s, literally, they’re instructed, like, it could be seconds of not complying with an order. And as long as the officers clearly, under color of law, wearing their uniform, and the person is not complying with an order, obstructing the officer in the performance of their investigation, they could be found guilty of a 148.
And so as a result, that charge gets abused a lot. It used to be abused a lot, and it would be prosecuted a lot. And for the most part, unfortunately, it was typically from arrests and prosecutions against people of color. And so the statistics bore that out in Santa Clara, County. And as a result, there was this campaign promised from the DA’s office to “Bend the Ark” and try and equal the playing field, if you will, with regard to those charges against minorities.
And now here we have this new case…where, standing alone with no other charge, they’re moving forward with this prosecution, which has led the PD’s office to make…air their public grievance about it rightfully so.”
Ray Hrdlicka – Host – Attorneys.Media
“Well, reading about this case, it seems like the prosecution…The DA’s office has, it’s going to be a challenge here, because the individual, the defendant, complied, and it’s the officer’s word against his.
And in this particular case, just giving some context to the viewers, the police were called about a loud noise emanating from the house based upon a karaoke party. And of course, basically a noise complaint. The individual, now the defendant, turned it down. That seems to be a pivotal point in this whole situation. If they corrected the initial issue, do they…do…the police have any right beyond the initial reason for being there?”
Stuart Kirchick– Criminal Defense Attorney – Santa Clara County, CA
“You know, the police have an amazing amount of discretion in the field. So they respond to a loud noise call. If the loud noise is tempered down, like, then you would think it’s over. Let’s say, the loud noise is turned off. You would think it’s over, but then there’s a bad exchange between the officer and the person who has the loud stereo on…”
Ray Hrdlicka – Host – Attorneys.Media
“Which is what happened here.”
Stuart Kirchick– Criminal Defense Attorney – Santa Clara County, CA
“The officer gets upset, and then it’s like, well, what’s our catch all? What is the catch all charge that we have probable cause for to make an arrest? Well, this person’s not he’s disobeying an order, he or she’s disobeying an order. This is a 148…boom.
And so, the officer in the field has this amazing amount of discretion on a low standard of proof to make an arrest, to make a citation. And obstructing an officer’s investigation, or impairing their ability to do an investigation, or not following an order, can be as simple as just the two of them being upset at one another. And there’s not full and total compliance and obeyance, and therefore person is cited for 148.”
Ray Hrdlicka – Host – Attorneys.Media
“Well, setting aside, and understandably, this issue was raised because of…it’s a disproportional amount of charges on minorities. But that charge, in and of itself, is so open to abuse that it makes sense to limit the use unless…unless it’s an extreme situation.”
Stuart Kirchick– Criminal Defense Attorney – Santa Clara County, CA
“Yeah. And in talking about so open to abuse, we would always see these charges. Whenever any amount of police use of force was utilized.”
Ray Hrdlicka – Host – Attorneys.Media
“Really?”
Stuart Kirchick– Criminal Defense Attorney – Santa Clara County, CA
“Though, that used to be a very common thing. If there was any use of force by the officer onto the person, the person who would get arrested for whatever other charge, would also have a 148 charge, because that charge could justify a reasonable use of force by an officer.”
Ray Hrdlicka – Host – Attorneys.Media
“I see.”
Stuart Kirchick– Criminal Defense Attorney – Santa Clara County, CA
“And that’s a very common charge that we see where there has been some use of force a little or a lot by the police officer against the person arrested.”
Ray Hrdlicka – Host – Attorneys.Media
“Well, the statistics bear that…in the last three years or so, the statistics show that the 148 arrests are down almost 90%. It seems to be a good thing. But in this particular case, they’re pushing the issue.”
Stuart Kirchick– Criminal Defense Attorney – Santa Clara County, CA
“Yeah. And I don’t know why they’re pushing the issue on this particular case. It would seem to me a good thing that the DA’s office could simply do…is drop the case at this point. The defendant has already gone through being arrested, cited, going into court for it. Ok, the point’s made. Now, if you want to comply with your policy at Santa Clara County DA’s office of “Bending the Ark” and not proceeding with these prosecutions, dismiss the case.”
Ray Hrdlicka – Host – Attorneys.Media
“One final question. In the past, of course, the inclusion of the 148 with the charges. If the person found guilty, whatever else have been included in there. Did that add more time, or did that just strengthen the case on the other charges? Or did that add more time if they were going to get any jail or prison time?”
Stuart Kirchick– Criminal Defense Attorney – Santa Clara County, CA
“Sure. I mean, both. The answer is, both. It could add more time. It strengthens the case. It provides a justification…justification for the officer to testify about, in any respect, with use of force that the officer may have used on the arrestee. So it’s a…and again, it’s a really easy case to convince a jury to convict of, because the jury instructions make it that way.”
Ray Hrdlicka – Host – Attorneys.Media
“I see. Wow. Well, thank you very much. Of course, the hearing on this particular case we’re discussing is going on today in Santa Clara County. We’ll…catch up with you in the future, and have you comment again on the subject matter.”
Stuart Kirchick– Criminal Defense Attorney – Santa Clara County, CA
“Sounds good. Thanks for having me.”
Ray Hrdlicka – Host – Attorneys.Media
“Appreciate it.”
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Stuart Kirchick
The Law Offices of Stuart D. Kirchick attorney is an innovator that brings 30 years of experience and a degree from Santa Clara University School of Law to the table, permitting him to provide dedicated service in many areas of the law.
He brings his expertise to cases of Civil Litigation Law, Personal Injury Law and Criminal Law, and is well-known for providing qualitative legal plan and advice in any circumstance.
His skills are unmatched in the industry when it comes to organizing and presenting complicated claims, negotiating with tenacity and providing premium advice, resulting in a very long history of favorable results for his clients.
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