concurring in part and dissenting in part:
The majority has reversed the conviction of Karon McCoy and remanded the matter for a new trial, finding her original trial unfair because of improper comments made by the prosecution in closing argument. While I concur in the majority’s finding that the prosecutor’s comments were improper and deprived Ms. McCoy of her fundamental right to a fair trial, I dissent from the majority’s finding that the evidence presented at trial was sufficient to prove Ms. McCoy guilty beyond a reasonable doubt of resisting a peace officer. Accordingly, I would reverse and vacate her conviction.
In its written decision, the majority discusses extensively what can appropriately be characterized as the “unsettled” nature of the case law on resisting arrest. I agree that the cases are all over the board on what constitutes such resisting: Is talking enough? Does passive uncooperation suffice or is some active force or exertion required? The answers depend not only on the appellate district but, occasionally, on the specific panel or some compassionate tug generated by the defendant’s circumstances. This situation necessarily results in uneven justice. I echo the majority’s belief that clarification from the supreme court is needed in this area of the law.
In the instant cases, I believe that (1) consideration of the specific facts asserted to be resistance should be limited to the State’s framing of the alleged criminal conduct in its complaint, and (2) the appropriate standard of review should be determined solely on the basis of those facts. Defendant was advised by the charging instrument that it was her conduct during the handcuffing procedure that constituted the resistance. She was not advised by that instrument that any other conduct would be relevant and was thus deprived of any opportunity to seek out occurrence witnesses other than her son to refute the State’s evidence and corroborate her own version of events. For these reasons, I would agree with defendant that our consideration should be restricted to her conduct in “physically resist[ing] the handcuffing procedure” of Officer Limacher.
With regard to that particular conduct, there is no factual dispute — Officer Limacher and Ms. McCoy agree that, as the officer testified, “she tensed the hand up that I applied the handcuff to and turned her left away from me.” After this initial reaction, Officer Limacher was able to apply the second handcuff to defendant’s left hand. Any earlier conduct was not in response to any attempt (or threat) to put her under arrest and seems to me to be irrelevant. Her other alleged conduct was after she had been secured in the handcuffs. It was not part of the charged conduct and the State made no motion to enlarge the charge or to conform the pleadings to the proof. For these reasons, I believe the conduct we can consider is limited and the facts related to that conduct are undisputed. Consequently, the standard of review is de novo.
Analysis
Section 31 — 1(a) of the Criminal Code of 1961 provides that “[a] person who knowingly resists or obstructs the performance by one known to the person to be a peace officer *** of any authorized act within his official capacity commits a Class A misdemeanor.” 720 ILCS 5/31 — 1(a) (West 2000). Our supreme court, in People v. Raby, 40 Ill. 2d 392, 240 N.E.2d 595 (1968), observed:
“ 1 “Resisting” or “resistance” means “withstanding the force or effect of’ or the “exertion of oneself to counteract or defeat.” “Obstruct” means “to be or come in the way of.” These terms are alike in that they imply some physical act or exertion. Given a reasonable and natural construction, these terms do not proscribe mere argument with a policeman about the validity of an arrest or other police action, but proscribe only some physical act which imposes an obstacle which may impede, hinder, interrupt, prevent or delay the performance of the officer’s duties, such as going limp, forcefully resisting arrest or physically aiding a third party to avoid arrest.’ [Citation.]” People v. Raby, 40 Ill. 2d at 399, 240 N.E.2d at 599.
This court in City of Pekin v. Ross, 81 Ill. App. 3d 127, 400 N.E.2d 992 (1980), examined the question of whether an individual’s action of pulling his arms down and in front of him while being handcuffed was sufficient to support a conviction for resisting a peace officer. The defendant in Ross testified that he took this action because the officers were hurting him by putting his hands behind his back and pushing them up. We found this action alone insufficient to sustain defendant’s conviction. Ross, 81 Ill. App. 3d at 130, 400 N.E.2d at 994. Although we did specifically note that the officers were hurting the defendant and that the officers’ testimony was inconsistent, we also found that “the only struggling the defendant did was to pull his arms down, which was certainly not enough to constitute resistance.” Ross, 81 Ill. App. 3d at 130, 400 N.E.2d at 994. We cited People v. Flannigan, 131 Ill. App. 2d 1059, 267 N.E.2d 739 (1971), in support of our holding.
In Flannigan, the evidence showed that the defendant did not immediately step from his car, that he wanted to give his car keys to his girlfriend, that he intended to argue with police over the charge and used abusive language, and, like here, that he jerked his arm away when the officer tried to take custody of him. At no time did he say that he refused to go nor did he attempt to escape. In reversing the defendant’s conviction for resisting arrest, the court stated:
“Such conduct, while not the paragon of cooperation, was not ‘withstanding the force or effect of or the ‘exertion of oneself to counteract or defeat’ [the officer] in the exercise of his authorized duty; so that, giving the statute a reasonable and natural construction as has been done by our Supreme Court, *** defendant’s conduct, which is at most an insubstantial display of antagonism or belligerence, [does not] constitute[ ] the offense of resisting a police officer[.]” Flannigan, 131 Ill. App. 2d at 1063, 267 N.E.2d at 742.
Here, as in Flannigan, Limacher did not testify that defendant attempted to flee on foot or that defendant stated an intention not to be arrested. In fact, defendant repeatedly begged for someone to call the police. The only evidence presented as to defendant’s alleged resistence was Limacher’s testimony that defendant “tensed the hand up that [he] applied the handcuff to and she turned her left away from [him].” As this court found in Ross, this behavior alone is insufficient to constitute resistance. See Ross, 81 Ill. App. 3d at 130, 400 N.E.2d at 994. Again, defendant testified that Limacher approached her from behind and suddenly placed a handcuff on her right hand while her left hand was being used to call the police from her cell phone. Significantly, it was merely a matter of seconds from the time defendant’s right hand was handcuffed to the time her left hand was also handcuffed. While section 31 — 1 does require an individual to comply with a peace officer’s authorized actions, it does not call for complete and immediate submission. See Ross, 81 Ill. App. 3d at 130, 400 N.E.2d at 994; Flannigan, 131 Ill. App. 2d at 1063, 267 N.E.2d at 742. A contrary interpretation is inconsistent with at least some Illinois case law and does not constitute a reasonable and natural construction of section 31 — 1. Thus, I would find that defendant’s act, in reaction to being handcuffed and in attempting to complete her 911 call, of momentarily turning her arm away as Limacher pulled her opposite arm backward did not, without more, rise to the level of resisting a peace officer. Such behavior simply does not fall within the purview of “withstanding the force or effect of’ or the “exertion of oneself to counteract or defeat” an officer’s exercise of his authorized duty.
In coming to this conclusion I would reject the State’s reliance upon the Second District’s holding in People v. Synnott, 349 Ill. App. 3d 223, 811 N.E.2d 236 (2004). The Synnott court, in rejecting the Fifth District’s reasoning in Flannigan, held that a physical act is not necessary for obstructing a peace officer where a defendant repeatedly refused to get out of his car because “any behavior that actually threatens an officer’s safety or even places an officer in fear for his or her safety is a significant impediment to the officer’s performance of his or her duties.” Synnott, 349 Ill. App. 3d at 228-29, 811 N.E.2d at 241. Here, Limacher did not testify that he was in fear for his safety, nor did defendant threaten him. Moreover, this court has already held that the act of momentarily pulling one’s arm while being handcuffed is not enough to constitute resistance. See Ross, 81 Ill. App. 3d at 130, 400 N.E.2d at 994. Consequently, I believe Synnott is not only overly broad, but is inapplicable to the present case.
Finally, it would be unfair not to provide some context here by pointing out that this entire encounter was precipitated by the officer for no apparent good reason. Limacher himself admitted that he did not see Quincy McCoy pick anything up or place anything in his pockets; he saw no wrongdoing. Nonetheless, Limacher decided to confront Quincy due to the boy’s past contact with the law. Limacher then proceeded to confront defendant, telling her she needed to remove Quincy (and herself) from the store. It was defendant’s contention that Limacher also admitted to her that he had no reason to remove Quincy from the store. When she inquired as to why Limacher was harassing her and her son, Limacher allegedly pushed a shopping cart into her, knocking her to the floor. Limacher admits defendant fell to the floor, but he claims her “flop to the floor” was of her own accord. Defendant then yelled for someone to call the police. While conflicting testimony was offered as to whether these cries contained vulgar language, it does appear that it was the cries that were the basis for defendant’s sudden arrest. These facts raise several troubling questions as to the validity of defendant’s arrest.
Still, it is clear that the law in Illinois is that one may not resist an arrest no matter how unfounded it might be. Without reference to the legitimacy of the basis of the arrest (or lack thereof), it is my belief that, given the allegations of the charging instrument, the State’s evidence of guilt relative to those allegations was insufficient to sustain defendant’s conviction for resisting arrest. For these reasons, I believe her conviction should be reversed and vacated.