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Restitution — Causation — “Natural and Probable Consequence” of Crime — Damage Caused by Police While Defendant Resisted Arrest

State v. Freeman Canady, 2000 WI App 87, 234 Wis. 2d 261, 610 N.W.2d 147
For Canady: Charles B. Vetzner, SPD, Madison Appellate

Issue: Whether a defendant, convicted of resisting arrest, can be ordered to pay restitution for damage caused by a police officer in the course of subduing him.

Holding: Because the damage was a natural consequence of the defendant’s resisting, the defendant was a substantial factor in causing that damage and can be required to make restitution for it.

Canady pleaded guilty to burglary-related offenses, including resisting arrest at the scene of an apartment building. He had a pry bar in his jacket which an officer, in the course of subduing him, took and threw to prevent its use as a weapon; it broke a door pane, requiring that the door be replaced. The trial court ordered restitution for the door. The court of appeals upholds the order. Restitution is meant to compensate the victim, and, § 973.20 being construed broadly to accomplish that end, restitution is the rule not the exception. ¶8. Still, a causal nexus must be shown between the “crime considered at sentencing,” § 973.20(2), and the disputed damage. Causation requires that the defendant’s criminal activity be a substantial factor in causing the damage – i.e., harm must have been a natural consequence of the defendant’s actions.¶9. Canady was a substantial factor in the damage, because but for his resisting (which included reaching for the pry bar), there would have been no damage. ¶12. Though the holding is clear enough on the immediate facts, its truncated discussion leaves some question as to its reach. Canady was convicted of resisting, so his potential restitution liability for the broken door is indisputable (§§ 973.20(1g)&(1r): court shall order restitution for any “crime considered at sentencing,” defined as “any crime for which the defendant was convicted and any read-in crime”). And in any event, the damage occurred at the scene of the burglary, and would probably be considered at least factually integral to that crime (same way that flight from a scene is considered part of a theft, State v. Grady, 93 Wis.2d 1, 286 N.W.2d 607 (Ct. App. 1979)); more importantly, the damage was caused to the burglary victim’s property. The court nonetheless seems to suggest that restitution is barely, if at all, delimited by the charge. ¶10 (“crime considered at sentencing” broadly defined, to encompass defendant’s activity related to the crime, not just acts supporting the crime’s elements; defendant’s “entire course of conduct” to be considered). However, prior precedent establishes at least some formal limit on eligibility for restitution, namely that “restitution to a party with no relationship on the record to the crime of conviction … or to read-in crimes is improper.”State v. Mattes, 175 Wis.2d 572, 581, 499 N.W.2d 711 (Ct. App. 1993). There’s no reason to think that this case disturbs that precedent.

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