Elvis pleased to hear that “wiggling” and shouting during arrest not an assault.

Jarrell A. Gayden v. United States, No. 13-CF-814 (Decided February 5, 2015)

Players: Associate Judges Glickman and Blackburne-Rigsby, Senior Judge Reid.  Opinion by Reid.  George E. Rickman for Mr. Gayden.  Trial Judge: John McCabe.

Facts:  After telling Mr. Gayden to “move along” form an alley where drug activity was suspected, MPD Officer Kimball called for backup.  This prompted Mr. Gayden to say, “Are you calling for back-up, I would if I were you before what happen[ed] to your partner happens to you[;] you can get hit.”  Kimball took this comment to refer to an earlier incident in which Mr. Gayden’s brother had wrestled with Kimball’s partner and pointed two guns at his head. Kimball arrested Mr. Gayden for threats.  Although initially handcuffed without incident, once his mother and other spectators appeared, Mr. Gayden began to “wiggle” and  “pull away” from the officers, and began shouting obscenities and telling the police to get off of him.  The police subdued Mr. Gayden and transported him to the police station.  The trial court convicted Mr. Gayden of attempted threats and assault on a police officer.

Issue 1:  Did the trial court properly conclude that the “small amount of wiggling and pulling away somewhat [by Mr. Gayden] . . . combined with the cursing and loudly screaming at the crowd and the police officers” constituted an assault on a police officer under D.C. Code § 22-405 (b)?

Holding: No.  The DCCA holds that “the little bit of wiggling and pulling away” after Mr. Gayden had already been restrained in handcuffs without incident was insufficient to constitute “resisting” under the APO statute.  Nor was the combination of this “wiggling” and the shouting of Mr. Gayden and the onlookers sufficient to established “intimidation” under the statute because: (1) the crowd was not incited to try to free Mr. Gayden from custody; and (2) no reasonable police officer in Kimball’s position (with five additional police officers present) would have feared the crowd or felt intimidated by the possibility of an attack as the result of Mr. Gayden’s words.    

Issue 2:  Did the trial court properly conclude that Mr. Gayden’s statement “Are you calling for back-up, I would if I were you before what happens to your partner happens to you, you can get hit” constituted an attempted threat?

Holding: Yes. The DCCA holds that the words intentionally and explicitly invoked a prior incident of violence and suggested that the same, or worse (crediting Officer Kimball’s testimony that to “get hit” meant to be killed) would happen to Kimball, and would convey fear of bodily harm to an ordinary hearer.  CP.

Read full opinion here.