dissenting.
The majority holds that EC § 4.907 is preempted by ORS 162.315, because the ordinance prohibits conduct that the statute permits. In determining whether preemption occurs, there are two questions to be asked: First, can the statute and the ordinance operate concurrently, i.e., does the ordinance permit what the statute forbids or vice versa; and, second, did the legislature intend the state law to be the exclusive source of regulation? City of Portland v. Jackson, 111 Or App 233, 241, 826 P2d 37, rev allowed 313 Or 354 (1992). Because EC § 4.907 and ORS 162.315 can operate concurrently and there is no suggestion that the legislature meant the statute to be exclusive, I disagree with the majority.
ORS 162.315 makes resistance to arrest by a police officer unlawful. In the context of the statute, “resist” means:
“[T]he use or threatened use of violence, physical force or any other means that creates a substantial risk of physical injury to any person and includes behavior clearly intended to prevent being taken into custody by overcoming the actions of the arresting officer. The behavior does not have to result in actual physical injury to the arresting officer. Passive resistance does not constitute behavior intended to prevent being taken into custody.” ORS 162.315(2). (Emphasis supplied.)
EC § 4.907 makes it unlawful for a person to interfere with a police officer in the officer’s lawful performance of duty. In the context of the ordinance, “interfere” means
“any physical act, including a refusal to leave a particular area in response to a lawful order from a police officer, that prevents or could reasonably be expected to prevent a police officer from performing his or her duties.” EC § 4.907. (Emphasis supplied.)
The majority says that “[t]he legislature expressly excluded ‘passive resistance’ from the scope of ORS 162.315, but it is within the reach of EC § 4.907. Therefore, the *501ordinance prohibits what the statute allows and is preempted.” 115 Or App at 499. If, according to the majority, the conflict between the ordinance and the statute is that, under the ordinance, passive resistance is criminalized while, under the statute, that conduct is not criminalized, the majority is incorrect. The statute and the ordinance are directed toward different kinds of conduct and can operate concurrently. The statute addresses only conduct that follows an attempt to arrest a person. The fact that the statute permits passive resistance in that context does not mean that passive resistance in response to police action is decriminalized in all instances.
In the instant case, defendant was a bystander who was arrested because she grabbed the officer’s flashlight and refused a lawful order to leave the area. Before she was arrested, she had been warning the officers about Romeo’s back condition. She was behind a fence 4 to 5 feet away from where he was being arrested. Because defendant was not resisting her own arrest and was not resisting the arrest of Romeo, the provisions of ORS 162.315, which permit passive resistance, do not apply to her. That defendant may have passively resisted the order to leave the area is irrelevant to a determination of whether the ordinance and the statute conflict, because that behavior is not regulated by the resisting arrest statute.
As to whether the legislature intended the resisting arrest statute to be the exclusive source of regulation, there is no legislative history to indicate that.1
I dissent.
Under City of Portland v. Jackson, 111 Or App 233, 242, 826 P2d 37, rev allowed 313 Or 354 (1992), the answer to the first preemption question determines the analysis to be applied to the second. If that answer is yes, the ordinance is preempted, unless there is a clear statutory intent to the contrary. If that answer is no, the question remains whether the legislature intended its law to be exclusive.