Wenger got arrested for disorderly conduct and resisting at Art in the Park in Stevens point. The circuit court dismissed the DC but found him guilty, after a bench trial, of resisting. He claims insufficient evidence as to all three elements of resisting an officer:
- Defendant resisted an officer–Wenger claims his actions: making his body “stiff” such that the officers had a hard time getting him into the squad car, and also getting out of the car after the first time they got him in, do not meet the description of resisting found in the seminal case of State v. Welch, 37 Wis. 196 (1875) (too old for a link!). There the court said
[I]t is not enough that the execution of the [officer’s] process is opposed or obstructed or interrupted or hindered or prevented; the officer must be resisted…. And the resistance must be active and direct towards him. He may be balked, baffled, circumvented, frustrated, and yet not be resisted….
We do not hold that there must be actual force or even a common assault upon the officer. It is not easy to see how, but resistance may be possible, within our construction of the statute, without actual violence or technical assault.
Here the court finds the stiffening sufficiently active, rejecting the argument that it was akin to passively “going limp.” (¶13).
- Officer acting in official capacity and with lawful authority–Wenger argues that because the disorderly conduct was dismissed, the officers lacked probable cause to arrest him in the first place. The court turns this argument back by observing that the dismissal came because the court found the state could not meet the much higher burden of proof beyond a reasonable doubt. It goes on to say that Wenger’s actions–basically, engaging in disturbing conduct toward other patrons of the festival and then yelling at the police–created probable cause for disorderly conduct. (¶¶18-20).
- Defendant knew of lawful authority–the court rejects Wenger’s argument that the fact that he was shouting that the officers were violating his rights and asking bystanders to be his witnesses meant he did not know of believe the cops’ actions were lawful. The court notes that sometimes people say things they know to be false, and finds that other evidence was sufficient to support the trial court’s finding on this point. (¶25).
The court finally rejects Wenger’s argument that, even after State v. Hobson, 218 Wis. 2d 350, 577 N.W.2d 825 (1998), there is a common-law privilege to resist arrests where police use unreasonable force, saying even if there were such a privilege, the officers here acted reasonably. (¶¶26-28).