Justices split 3-2 over ‘force’ element of man’s resisting conviction

Justices of the Indiana Supreme Court have split over the denial of a New Castle man’s appeal to the high court after he was found guilty of forcibly resisting law enforcement. Three of the five justices voted to deny the petition to transfer.

Charles Tyson’s conviction came following his refusal to remove his hands from his pockets after he was ordered to do so by New Castle police officer Brandy Pierce. Tyson was walking away.

According to the officer, Tyson appeared to be stumbling and swaying when she passed by. After Tyson refused to comply with her orders to keep his hands visible and instead continued backing away with his hands still in his pockets, the officer twice tased Tyson as he turned toward the front steps of his house.

The Indiana Court of Appeals later affirmed his conviction of forcibly resisting law enforcement under Indiana Code section 35-44.1-3-1(a)(1), and a majority of the Indiana Supreme Court denied transfer to his case.

But Chief Justice Loretta Rush, joined by Justice Geoffrey Slaughter, dissented in a Thursday order from the majority’s denial of transfer in Charles R. Tyson v. State of Indiana, 19A-CR-01813.

Instead, the dissent argued that the high court should take the “rare chance” to clarify that when the “force” element of a resisting-law-enforcement conviction is based on a threat, the evidence must establish that the threat was directed at the officer and that the defendant’s actions, viewed objectively, were threatening.

“Enforcing these requirements is the only way to distinguish between what is and isn’t a threat of force. Because Tyson’s actions do not satisfy these requirements, I would reverse his conviction,” Rush wrote.

The dissenting justices first contended that the evidence does not show that Tyson’s actions amounted to forcible resistance against the officer. Rather, Rush said, Tyson’s actions were not directed at the officer and there was no objective evidence that Tyson’s actions were threatening.

“Indeed, Tyson was walking away from Officer Pierce — up the steps to his own home — when she tased him twice in the back. So, even if the unknown objects within Tyson’s pockets constituted a threat, the State still failed to prove that Tyson’s actions were ‘directed towards the law enforcement official.’ Though Tyson’s conviction should be vacated on this basis alone, there is a second reason why the State failed to satisfy the ‘force’ element,” Rush wrote in dissent.

The chief justice further pointed out that Tyson did not show a weapon and never approached the officer, but “simply refused to follow her commands and walked away.”

“We acknowledge Officer Pierce’s concern that Tyson had unknown objects in his pockets and her explanation that a ‘welfare check,’ like the one she performed with Tyson, can become dangerous. But this is not objective evidence of ‘threatening’ actions. If there were evidence that the objects in Tyson’s pockets resembled weapons, the State’s case would be on better footing. But Officer Pierce, who is trained in recognizing weapons, ‘didn’t know’ what Tyson had on him and simply stated, ‘I could see that there were items in his pockets.’

“In short, because there was no objective evidence that Tyson’s actions were threatening, the State — for a second reason — cannot satisfy the ‘force’ element required to sustain Tyson’s conviction,” the dissent concluded.