The recent opinion from Division One of the Arizona Court of Appeals in State v. Burke deals with the issue of whether A.R.S. § 28-622(A), a law involving failure to comply with a police officer, is unconstitutionally vague. The law provides as follows:
A person shall not wilfully fail or refuse to comply with any lawful order or direction of a police officer invested by law with authority to direct, control or regulate traffic.
The facts of the actual case, as the court explains them, seem pretty simple:
This case arises out of a routine traffic stop. After Burke allegedly failed to stop at a stop sign, a police officer pulled Burke over, asked him for his license and registration, and directed him not to move his vehicle. Burke disobeyed the instructions, drove his vehicle to the side of the roadway, called 911, and eventually exited his vehicle after additional officers arrived on the scene. Burke was arrested after exiting his vehicle.
Burke was convicted by a judge rather than a jury, and although he apparently raised other issues, the Arizona Court of Appeals only addressed the law’s facial validity. That may be the most interesting part of the case.
Many people do not realize that A.R.S. § 22-375 gives you one shot at an appeal from a city or justice court’s application of the law in a case like Burke’s, limiting any appeal past the Superior Court to the issue of the facial validity of the law in question. Had Burke driven off to the side because the officer’s order to stay was dangerous or unreasonable, or perhaps because the officer was non-uniformed and in an unmarked vehicle, leading Burke to think the officer might be a criminal intending to rob him, Burke would have to make arguments about that at a bench trial before a city court judge who probably sees the same officer over and over again. The judge may be a former cop without so much as a law degree, and he might rely on police support to get elected too.
After trial, Burke would be able to raise a variety of issues to a Superior Court judge, but that would be it for many of them. There would be no further arguments about the application of the law to the Arizona Court of Appeals. In a case like Burke’s, where other potentially good issues seem likely just reading between the lines in the court’s statement of facts, only those issues relating to the facial validity of the law ever make it past the very first level of appeal.
As for the substance of the opinion, the court easily dismisses Burke’s arguments in large part due to the fact he is up against a very difficult standard. The court explains:
As applicable here, to successfully challenge the facial validity of a statute, the challenging party must demonstrate no circumstances exist under which the challenged statute would be found valid.
Although the court considers whether using the term “willfully” both by itself and in the context of willfully failing to do something is sufficiently definite, also doing the same for the terms “refuse to comply” and “lawful order or direction,” it pretty clearly comes back to that standard. At one point, the court discusses an examples of a willful refusal to obey an order that would be fine: “a police officer ordering a driver to move his vehicle into a parking lot or to stop and the driver simply continues to drive until the police can stop him.” It eventually lists a series of acceptable lawful orders or directions too: “’step out of the car with your hands up,’ or to the person exiting the vehicle, ‘put down your weapon.’”
The only argument that seems to give the court any concern at all involves the fact that there is no specific temporal language in the law, nothing saying how quickly someone has to comply with the officer. According to the court, however, providing a time “would inject rigidity into a law that requires flexibility for the law to function as intended.”
As it stands, an officer can cite, and will later probably testify in a manner guaranteed to convict, any person who does not obey any order soon enough. What if you take a second to notice him giving the order? What if the order is hard to understand? What if you have some sort of mental disability? Or are just hard of hearing? It seems the court thinks the law functioning as intended would mean it applies to anyone who does not do exactly as ordered exactly as fast as it takes to satisfy the ordering officer’s arbitrary sense of what compliance should entail. But excess rigidity is too high a price for the court.
The court also thinks there isn’t a problem with possible discriminatory and arbitrary enforcement, a pretty clear potential issue considering that, in practice, what compliance even is and the time to do it are completely determined by the ordering officer’s subjective opinion. In support of that, the court essentially says that, although there may be potential unconstitutional applications, no law is perfect. Interestingly, for reasons discussed above, the Arizona Court of Appeals will probably never get an opportunity consider those specific unconstitutional applications with regard to that specific statute.
If you think about it, there is a lot to worry about in the case. Willfully failing just means an affirmative act of rejection, and the officer will say you clearly heard and understood the order but disobeyed. The officer will also no doubt say his order was something authorized by law and that he gave you plenty of time to comply. You will have no real way to refute any of it. You will probably be convicted.
Facts of any specific case aside, the law is hardly clear even if the officer does something questionable and tells the truth about it. Sadly, that may be the intent. The Arizona Court of Appeals does not seem to mind.