{¶ 34} I respectfully dissent from the second portion of the majority's opinion. While I agree that William Callaway's obstruction-of-official-business conviction must be reversed, I disagree with the majority's determination that Akron Codified Ordinances 136.13 conflicts with R.C. 2921.33 and is therefore unconstitutional and void. Though this case presents troubling facts, the dispositive issue is what occurred when Officer Hamidi informed appellant that he was under arrest. Once told he was under arrest, Callaway had a duty to cooperate and not impede the officer in the performance of his perceived duty.
{¶ 35} Specifically, I disagree with the majority's opinion that "R.C. 2921.33 in effect allows a person to resist an unlawful arrest." That finding is fraught with potential problems including confusion in the minds of police officers and citizens and the possibility of encouraging citizens to resist arrests because they subjectively believe the arrest to be unlawful. *Page 794
{¶ 36} Moreover, I would not overrule Akron v. DeLorenzo (Sep. 27, 1984), 9th Dist. No. 11647, 1984 WL 3957. I agree with this court's previous determination in DeLorenzo that no conflict exists between the Akron resisting-arrest ordinance and R.C. 2921.33. I agree with our previous finding that "[n]either authority positively permits an act which is prohibited by the other." Id. at 7. I agree with the DeLorenzo opinion that the Akron ordinance "merely fills a gap in the law where the General Assembly has not spoken." Id.
{¶ 37} The DeLorenzo opinion discussed Columbus v.Fraley (1975), 41 Ohio St.2d 173, 70 O.O.2d 335, 324 N.E.2d 735, which I believe directly contradicts the majority's position that Ohio law permits resistance to an unlawful arrest. The Fraley court discounted the common-law position that one had a right to resist an unlawful arrest. In fact, the court directly disagreed with the appellant's position that because her arrest was unlawful she had a right to resist it. Fraley,41 Ohio St.2d at 178, 70 O.O.2d 335, 324 N.E.2d 735. Further, the Fraley court abandoned the rule allowing forcible resistance to arrest. Id. at 180, 70 O.O.2d 335, 324 N.E.2d 735.
{¶ 38} I also note that the word "lawful" within the meaning of the statute does not conflict with the Akron ordinance. In determining whether an arrest was lawful, it must be determined "whether there was a `reasonable basis' for the arrest and not whether the elements of the underlying charge were or could have been proven beyond a reasonable doubt." State v. McCrone (1989), 63 Ohio App.3d 831, 835-36, 580 N.E.2d 468. "A reasonable basis means whether a reasonable police officer under similar circumstances would have concluded that the defendant had committed a crime." Id. at 836, 580 N.E.2d 468. Such a definition has also been found to define legal arrest. See State v.Thompson (Nov. 9, 1993), 4th Dist. No. 92CA1906, 1993 WL 472907, at *3. In my opinion, "lawful arrest" as used in R.C. 2921.33 does not conflict with the Akron ordinance. Accordingly, I respectfully dissent from the majority's opinion on the constitutionality of the Akron ordinance. *Page 795