A previous post discussed the level of suspicion that an officer must articulate to justify a “stop” or otherwise initiate an encounter with a “civilian.” Generally speaking, a law enforcement officer initiates contact with a “civilian” because he or she suspects the civilian of some kind of wrongdoing. The officer may be mistaken, may have ulterior motives (prejudice, profiling, etc.), or may only be acting on a mere hunch. However, whether the officer’s justification was legal will only get sorted out after the fact, by a competent defense attorney filing a motion to suppress evidence. An accused should not attempt to argue that issue with an officer during the stress of an encounter. In spite of the possibly faulty reason for the encounter, the actions an accused person takes when confronted by law enforcement can, themselves, lead to criminal charges.

Resisting an Officer and Obstructing an Officer, both charged under Wisconsin Statutes Section 946.41 are two criminal offenses that focus on the conduct of an accused in the context of a police investigation. To “resist” means to oppose the officer by force or threat of force. To “obstruct” means that the conduct of the accused prevents or makes more difficult the performance of the officer’s duties. Both charges require the officer to be acting in an “official capacity” — performing duties that he or she is employed to perform — and with “lawful authority — meaning, the officer’s acts are not themselves in violation of law. Finally, to obtain a conviction for resisting or obstructing, the State must prove that the accused knew (had reason to know) that the officer was indeed acting in an official capacity and with lawful authority.

Although both resisting and obstructing an officer require some action, some volitional act, by the accused, either physical or verbal, obstructing is a bit trickier. An obstructing charge can result from an accused giving any information to an officer that is deemed to be false information. One obvious form of obstructing is when an accused gives false identifying information, such as a false name. Perhaps less obvious is an obstructing charge that arises when an accused denies involvement in the act that the officer is investigating. Any affirmative statement to police that a prosecutor thinks he can prove to be false could be charged as obstructing.

Police will often encourage an accused person to make a statement (to “come clean”) with the promise of a better outcome for being honest (“If you cooperate I’ll put a good word in with the prosecutor.”) Unfortunately, a confrontation with police is one of those exceptions to the maxim “honesty is the best policy.” Making a statement rarely, if ever, turns out well for an accused person. The best response to questions from police is “I do not wish to talk, and I want to speak to a lawyer.” It may feel uncomfortable or confrontational at the moment, but in the long run silence is the best policy.

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