Felony Flight

In Arizona, a driver who “willfully flees” or “attempts to elude” a pursuing official law enforcement vehicle using an audible signal and lights is guilty of a class 5 felony. The only in-depth analysis of what “willfully flees” and “attempts to elude” mean came in a 1993 opinion from the Court of Appeals of Arizona, Division One.

In State v. Fogarty, an officer tried to stop the defendant, who had been passing other traffic in a forty-miles-per-hour zone. The officer thought the defendant was going about fifty miles-per-hour and caught up with him at a red light. The light turned green, and the defendant drove ahead at about forty-five miles per hour. The officer turned on his flashing red lights, and after the defendant failed to stop for several blocks, the officer turned on his siren. The defendant kept going, obeying all traffic laws. At a stop light, the officer heard the defendant yell, “leave me alone, what do you want me for?” The officer called in the defendant’s license plate number and continued to follow him, but never attempted to block him or cut him off. The police officer eventually gave up, and the defendant was later arrested at his home.

The court analyzed whether the defendant’s conduct violated the felony flight statute. To do that, it looked at the definitions of “flee” and “elude” contained in the Oxford English Dictionary. The court decided the evidence did not support a finding that the defendant “attempted to elude” the officer, but that it did satisfy one of the seven definitions for “flee,” which was “[t]o make one’s escape, get safely away.” The court could not find a single case in any jurisdiction where defendants who didn’t “elude” or drive at high speeds were convicted under similar statutes. The court also acknowledged drivers commonly go fifty miles per hour in a forty-miles-per-hour zone and that the felony flight statute was “arguably designed to discourage” high-speed chases.

However, the court decided to look at what it felt were the purposes of the statute: making sure motorists stop on command and avoiding accidents. The court noted the fact failing to stop is particularly dangerous when two vehicles are involved and explained “the failure of a motorist to stop may provoke a pursuer into dangerous driving.” The court decided that, in its opinion, “any refusal to stop on command of an officer who is in a police car violates the felony flight statute because of the potential for personal danger inherent in vehicular pursuit, even if that pursuit does not attain excessive speeds or involve reckless driving.”

I had to read the opinion about four times to believe what I was reading. The court acknowledged that the defendant’s conduct was neither uncommon nor dangerous, that the statute was arguably designed to proscribe different conduct, and that no other jurisdiction has ever applied a similar statute to conduct like that of the defendant. However, the court thought the defendant was rightfully convicted of a class 5 felony despite the plain meaning of the statute (as evidenced by six out of seven possible definitions of the key term that might have applied to the conduct in question) because the officer might have done something dangerous trying to pursue him.

Reading Fogarty almost makes me want to donate money to the Federalist Society. When people say it is emphatically the province and duty of the judiciary to say what the law is and not what it should be, they usually pick much less egregious examples of “activist” judges than the ones in Fogarty. The text of the felony flight statute is fairly clear, yet the court interpreted “willfully fleeing” and “attempting to elude” as encompassing “any refusal to stop on command” simply because of the danger inherent in vehicular pursuit. It does not even matter that there was no danger in the actual pursuit in question. The legislature could have proscribed “any refusal to stop,” but it chose two fairly specific terms.

When people get upset about judges reading statutes too broadly and giving people rights they should not have, I am usually not very receptive to their arguments. On the other hand, what the court in Fogarty did bothers me immensely. If courts can take a fairly clear criminal statute and make it apply to conduct its text does not plainly proscribe, nulla poena sine lege comes to mind. I hope the reason Fogarty has not been cited by a single Arizona court since it was published is because other courts realize people should not be punished for doing something that is not actually prohibited by law and that we should not have courts creating common law crimes.