Image by chriswhite313 on YouTube.

Recently, a horrifying video surfaced of Metro Transit Police slamming a man in a wheelchair to the ground where he began bleeding from the head. WMATA said the man fell out of his wheelchair while “resisting arrest” and was “arrested for assault on a police officer.”

But do you really know what “assaulting a police officer” in DC means?

Quick quiz: Which of the following would be considered “assaulting a police officer”?

  1. Punching a police officer in the face.
  2. Standing behind a gate holding it closed while an officer tries to push it open.
  3. Sitting in your car grabbing the steering wheel while an officer tries to drag you out of your car.
  4. Standing at a Metro station with your hands in your pockets, refusing to take them out of your pockets when an officer commands you to.

If you guessed just #1, you are wrong.

According to the DC Court of Appeals, #1, #2, and #3 all qualify. The US Attorney has argued that #4 does too, but the Court of Appeals said no.

#1 is obvious. If you do that you can be charged with the felony Assaulting a Police Officer (APO). DC law § 22-405, “Assault on member of police force, campus or university special police, or fire department,” reads:

(c) A person who violates subsection (b) of this section and causes significant bodily injury to the law enforcement officer, or commits a violent act that creates a grave risk of causing significant bodily injury to the officer, shall be guilty of a felony and, upon conviction, shall be imprisoned not more than 10 years or fined not more than $10,000, or both.

But the law contains another kind of APO, a misdemeanor, which most of us would probably not consider “assaulting” a police officer. It’s more like what we think of as “resisting arrest.”

(b) Whoever without justifiable and excusable cause, assaults, resists, opposes, impedes, intimidates, or interferes with a law enforcement officer on account of, or while that law enforcement officer is engaged in the performance of his or her official duties shall be guilty of a misdemeanor and, upon conviction, shall be imprisoned not more than 180 days or fined not more than $1,000, or both.

To be guilty of misdemeanor APO, someone might need to only “oppose” a law enforcement officer without cause. Courts have drawn a distinction between “passive” resistance, like slumping to the ground when being arrested in a protest, versus “active” resistance against the officer’s actions.

That was the issue in Ava Howard v. United States, 966 A.2d 854 (D.C. 2009). Ms. Howard was arrested by Metro Transit Police at Minnesota Avenue station after getting in an altercation with another passenger. The officer asked Howard to “sit down in the bus bay” and take her hands out of her pockets, which she refused to do.

The officer claims that when he tried to arrest Howard for disorderly conduct, she started “swinging her arms and her elbows” and struck him, but she denies this and the judge in the case did not make a factual finding about the swinging. Instead, he simply convicted her of misdemeanor APO based on not taking her hands out of her pockets. The Court of Appeals found this to be insufficient.

In other cases, the Court of Appeals has upheld APO convictions even without evidence of actions that the average person might consider “assault.” In Dolson v. United States, 948 A.2d 1143 (D.C. 2008), Mr. Dolson ran from police and went to his own house, where he went inside a chain link fence. Dolson pushed the gate closed and the officer tried to push it open. The Court of Appeals upheld Dolson’s conviction just based on this action, finding it constituted misdemeanor APO.

In Coghill v. United States, 982 A.2d 802 (D.C. 2009), the court upheld a conviction for misdemeanor APO. Mr. Coghill was stopped by police while driving a car, and refused to let police search his car. He then got out of the car at their instruction, but at some point got back in the car. Officers tried to drag him out of the car, but he braced himself against the floorboards and gripped the steering wheel.

Based on that action alone, the court upheld Coghill’s conviction. They held that it counts as “assaulting a police officer” just to be “actively interposing some obstacle that precluded the officer from questioning him or attempting to arrest him.”

Why does this matter? If someone is convicted of misdemeanor APO, a future employer might look at their record and think they’re quite a violent person if they assaulted a police officer. But they might have just panicked and resisted, without even touching or hitting an officer.

If the police respond to someone’s resisting arrest by savagely beating you while you lie on the ground, as has happened in a few places, it can be very difficult to file a civil rights lawsuit if you’ve been convicted of “assaulting a police officer,” even if it’s again not really what we consider “assaulting.”

In one incident, New Jersey police beat a Rutgers student who was lying on the ground, all the while yelling “stop resisting.” That led Carlos Miller to say, “I’m beginning to think cops are trained to yell ‘stop resisting’ when making arrests, even though the suspect might not necessarily be resisting.”

It’s important to keep in mind that some people really do assault police officers. Police claim, and might or might not be correct, that Ms. Howard was swinging her arms and struck the officers. Mr. Dolson ended up hitting an officer in the face and breaking his nose later on, after the chain link fence shoving match. Neighbors say this was self-defense and the officer was choking Dolson. Without video, we can’t really know and that’s not the point.

Certainly there are real assaults on police officers which should be prosecuted. But we have also seen many videos where police are the ones doing the beating and claim someone is “assaulting a police officer.” It seems unfair to convict people of “assaulting” police officers in those cases where they didn’t hit anyone or even try to.

We don’t know everything that happened in this wheelchair case. Dwight Harris, the man in the wheelchair, might have been drunk, and might have hit the officers before the video started. Being a police officer is a dangerous job and requires dealing with a lot of potentially violent people.

But there seems to be little reason to grab a man in a wheelchair, slam him to the ground, have him bleed from the head, refuse to help him… and then potentially have a completely legal leg to stand on in criminally charging him for assault. The US Attorney has dropped the charges, likely because of the video. But had the bystander not been recording, Mr. Harris might still be facing charges of “assaulting” the very police officers that did this to him.

David Alpert is Founder and President of Greater Greater Washington and Executive Director of DC Sustainable Transportation (DCST). He worked as a Product Manager for Google for six years and has lived in the Boston, San Francisco, and New York metro areas in addition to Washington, DC. He lives with his wife and two children in Dupont Circle. Unless otherwise noted, opinions in his GGWash posts are his and not the official views of GGWash or DCST.