What is Obstruction of a Legal Process?
At the outset, obstruction of legal process means the use of force to prevent the execution of process. It is the common-law definition upon which our obstruction statute is based and is sufficiently clear. "The gist of the offense . . . is the wrongful interference by force with the processes of the law." McCray v State, 216 Md 124, 138, quoting 8 Am Jur 2d Bail § 180. The use of physical force to prevent a police officer from performing a lawful duty and fulfilling his responsibility to the courts is the essential element of the offense.
The obstruction statute is applied in cases involving both police officers and private citizens. Since the statute is worded in terms of obstructing a police officer in the performance of his duties, it is often cited in cases that do not involve police. Every court of this State has applied section 9-408 in cases involving private citizens. Not infrequently, private citizens attempt to "take the law into their own hands" and to keep police officers from executing various legal processes . There are many different forms which such interference may take. In some, a person may refuse his consent to an entry by a police officer who is executing a search warrant. In others, citizens attempt to interpose themselves between the police and a person whom the police are about to arrest. In still other instances, citizens resist an arrest or a search. Whether the police are executing an arrest warrant, performing a protective search as a matter of reasonable precaution, executing a search warrant, or serving a summons in a civil case, citizens sometimes use some kind of physical force to resist the execution of the warrant or to prevent the performance of the officer’s duty. These acts of resistance constitute interference with the orderly administration of justice. In each of these instances, a citizen has attempted by force or threat of force to resist, hinder, obstruct, prevent or interfere with the police officer in the performance of his or her duties. See Whitt v State, 243 Md App 88, 94-95 (2019) (footnotes omitted).
The Types of Obstruction
The most common methods of obstruction employed, particularly on that are family law litigation-related, are those that seek to impede the parties’ ability to seek redress in court. The biggest offenders are the tampering and withholding of evidence. A classic example of such a tactic in family court is the withholding of a child (typically by a custodial or primary custodial parent) from the other parent on a scheduled basis. This is itself a violation of the terms of any Custody Order that may be in place, though it often leads to further violations of the law (and the Court’s Orders) when the aggrieved parent has to seek access to the children through legal or quasi-legal means, as in the use of police officers to effectuate their visitation rights. While no single offense may have occurred during a given event, the cumulative effect of several of them has been known to amount to a violation of Federal statutes prohibiting such conduct. Witness intimidation is another damaging and systematic method of obfuscation of the legal processes and is typically accomplished through coercive threat, foul language toward the witness and/or proffered inducements ("do this for me and I won’t prosecute you"). Resisting arrest constitutes another type of obstruction of the legal process, though it often does not receive much notoriety unless something goes very wrong (such as someone being injured) during the execution of the arrest. Even at the time of arrest, obstreperousness can amount to a charge of "obstruction of a law enforcement officer".
The Legal Ramifications of Obstruction
Based on the state’s statutes, penalties for obstructing legal process run the gamut of merely standard fines all the way to imprisonment with lengths that range from 90 days to 2 years. There are also a few states in which this is a felony. Many states treat it as a common law misdemeanor, but this isn’t the case in all states. Again, there are examples, such as Florida, where it’s only a misdemeanor if the conduct occurred without a weapon. If the force was used and a weapon was present, then it goes up to a felony.
Even if your state doesn’t have laws in place on who can serve a "disturbance of the peace" warning, an order of protection, a no trespass notice, or an eviction notice, you could still be charged with obstruction of legal process if you didn’t leave when they said you should.
If, on the other hand, you do live in a state where such a warning or notice doesn’t have to be issued directly to you, it could still apply to you. Why? If you have been seen at the same home or on the same property many times, even if they don’t know your name, you could still count as someone "in the immediate area of the person whose legal process is being obstructed."
Essentially, if a police officer believes that your presence is interfering with the legal process, you could be charged with obstruction of legal process. Even if it’s wrong, it’s not uncommon for a police officer to forget about the difference between a warning and an arrest. In the heat of the moment, you may be the one who is taken down to the station in handcuffs, regardless if you’re actually guilty of what they accuse you of.
How to Defend Against an Obstruction Charge
When defending clients against obstruction of justice charges, an experienced criminal defense attorney will look closely at available strategies and defenses. Obstruction of legal process is a gross misdemeanor, and while charges of this nature can have serious consequences, fighting the charges can be an option. Exploring the following issues could lead to a downgrade or even dismissal of obstruction of justice charges:
"Does the charge arise from a valid arrest?"
The most basic strategy involves an examination of the legality of the arrest. If a police officer makes an arrest, they must do so within certain legal parameters. For example, if the arrest was made based on a warrant, that warrant must be valid. If, on the other hand, the arrest was simply made on the officer’s say so, the officer’s presence at a location does not necessarily give them the right to bar entry to that location and arrest any of its occupants.
"Was the officer properly identified?"
Police officers must possess clear identification of their status as police. A badge or an official ID, for example, must be presented upon any reasonable request. According to statute, "Peace officers shall have their badge and any other required identification displayed prominently while in the exercise of official functions." And in cases where the officer is being selective of who they show identification to (e.g., only the occupant of a house vs other individuals), it could be argued that it was because they were not authorized to be there.
"Was the initial contact voluntary?"
While a police officer may demand an occupant to identify themselves and provide their address, occupiers have the right to refuse to provide information in most situations. If the contact is voluntary, because a simple request was made, then the occupation may refuse to provide information to the officer as long as that refusal does not inhibit the officer’s ability to carry out their job and does not alter their actions.
"Was the arrest made for no good reason?"
There are a number of factors that must be in place in order for an officer to make an arrest for obstruction of legal process. The officer must have been acting in their official capacity and the suspect(s) must have known they were a police officer and the officer must have been executing a valid warrant or investigating a crime. Any of these components (or their summary judgment—right to refuse identification or officer misidentification) can lead to invalid charges for obstruction of justice.
Obstruction and its Impact on Legal Processes
The ramifications of obstruction of legal process go beyond the immediate harm to individual litigants. As such conduct is more widely used and accepted by society, the cynical view of lawyers will be deemed reasonable. Court practice will reflect this by a perceived need to lay more groundwork as to why the judge reached the correct conclusion. In the end, the time and money that could be spent on additional court time is instead spent on litigation that would otherwise not happen .
Moreover, a failed justice system feeds on itself by destroying confidence in law, judges, and lawyers. The process becomes less important than winning, even for enduring relationships. As the system is weakened, people begin to view it as legitimate competition: if I cannot get satisfaction from you, I can do it myself or hire a different lawyer to do it for me. In the end, social cohesion is hurt when people feel compelled to take justice into their own hands.
Obstruction in Action: Real Life Situations
Obstruction of legal process is commonly found in the context of pre-trial detention orders. An interesting example where a pre-trial detention order was interfered with by the accused occurred in R v Ferrett in 2016. The issue that arose in the case was whether the accused had breached two orders imposed at the time of arrest. In this case, the police officer asked whether the accused wanted to speak to a lawyer. To speak to a lawyer, the accused needed to speak to Legal Aid Ontario, who would refer him to a duty counsel lawyer, or be given an opportunity to contact another retained lawyer of his choice privately. A Duty Counsel Scheme Order (Section 11(2)) was given to the accused that stated that he could speak to either Legal Aid Ontario (LAO) or Defence counsel in the interim. For an accused to speak to the duty counsel lawyer, they needed to return to the courthouse each day in that period of remand. The accused confirmed that he wished to speak to a lawyer, but when he was told that he needed to go back to the courthouse, he complained and that he only wished to call counsel that was not in attendance at the courthouse. The accused was not allowed to address his retained counsel by phone because the presiding Justice of the Peace at the courthouse did not allow it, the accused therefore returned to custody. At that point, he indicated his wish to have legal counsel of his choice when he was discharged. After he indicated this, LAO fulfilled that wish. Ten days later, however, the accused was charged with obstructing justice (Section 139(2)) for breaching his duty counsel scheme order. The appeal court found the accused not guilty, and that there were no reasonable and probable grounds for the arrest. There was no evidence that the accused had committed any crime, only that he did not fulfill the requirements of the duty counsel scheme order, so there were no grounds to arrest him for obstructing justice.
Another case study that highlights obstruction of legal process is R v Goulet in 1999. While Mr. Goulet was being arrested at the airport, he had struggled with police officers and punched one in the face. He was arrested for assault. On the day of his trial, Mr. Goulet attempted to attend a party with his friends, which he believed to be a reasonable request. He was told by the bail supervisor that it would be against his conditions to be with friends and so he could not go. Even after explaining the location he was headed to as well as who would be at the party, his request was denied. Mr. Goulet then ignored these conditions and attempted to attend the event. He was subsequently arrested and searched, but nothing was found. He was charged again for breaching his release conditions. The reasoning from the court of appeal is that in accordance with the principles of fundamental justice, merely attempting to breach a condition of a release order does not interfere with the course of justice. The accused’s state of mind is not at issue. Rather, the concept of "interference with the course of justice" requires a non-trivial act or conduct reasonably causing the administration of justice to be disrupted or impeded. Two things must then be established. The first is that there must be a clear link between a voluntary act and interference of legal process. The second is that a trivial act does not equate to the prohibited interference.
How to Prevent Obstruction of a Legal Process
An effective way to prevent obstruction of legal process is through the implementation and support of various initiatives and policies that help create an efficient and coherent system of law. Rigorous training and education of those in the legal profession, such as lawyers, judges and other key members of legal institutions, is essential. In addition, Governments and other concerned governing bodies can enforce and implement best practices in legal systems. Provisions, policies and procedures meant to reduce or eliminate obstruction can be created. This may include providing more frequent updates (i.e. to keep all parties informed), publishing court rolls, increasing transparency in disputes, improving responsiveness of court systems , etc. Publications can be issued to create more transparency in the court system. If the public is made more aware about the objectives and rules behind a particular legal procedure, obstruction of legal process can be prevented. Recently, the publication of legal information on intranets has been initiated. This allows for integration of legal information to be accessed by other legal institutions. The internet is another tool used to prevent obstruction. Legal databases, legal guides and other resources online help create stronger cases when faced with obstruction of legal process, and allows for better access to and understanding of the law. Laws can be created or amended to help reduce and eliminate obstruction of legal process. For instance, legal professionals may be penalized for non-compliance.