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Obstructing an officer, § 946.41 – “Officer” includes jailer or correctional officer

State v. Mark A. Gierczak, 2012AP965-CR, District 4, 12/13/12

court of appeals decision (1 judge; ineligible for publication); case activity

For purposes of obstructing an officer § 946.41, “officer” includes someone with authority “to take another into custody,” and therefore includes a correctional officer at a county jail, ¶¶11-12. The court of appeals thus rejects Gierczak’s challenge to the factual basis for his obstructing plea where as a county jail inmate, he ignored a correctional officer’s instructions over the intercom not to dismantle the fire sprinkler head in his cell.

¶13      Based on the above principles, we conclude that a reasonable inference may be drawn from the criminal complaint that the corrections officer, regardless whether a “peace officer,” “public officer” or “public employee,” had the authority “to take another into custody.”  Wis. Stat. § 946.41(2)(b).  It is undisputed that, at the time of the incident, Gierczak was being monitored by the corrections officer.  It would be absurd to conclude that the corrections officer who monitored and supervised Gierczak had no power to physically detain him by restricting his freedom of movement.  See Adams, 152 Wis. 2d at 75.

An “officer” under  § 946.41(2)(b) is not required to have arrest authority, but only authority “to take another into custody.” Custody is not synonymous with arrest, and a person may be in the custody of  an  institution guard without being under arrest. State v. Hoffman, 163 Wis. 2d 752, 762, 472 N.W.2d 558 (Ct. App. 1991), ¶¶12-13.

Elements of the offense recited (“(1) the defendant obstructed an officer; (2) the officer was doing an act in an official capacity; (3) the officer was acting with lawful authority; and (4) the defendant knew that the officer was acting in an official capacity and with lawful authority and knew that his or her conduct would obstruct the officer”), ¶9, citing Wis JI—Criminal 1766. Standard of review (de novo) for sufficiency of factual basis for plea also recited, ¶8, citing State v. Payette, 2008 WI App 106, ¶14, 313 Wis. 2d 39, 756 N.W.2d 423.

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