Christopher Glenn was on probation, not that you would know that. Contrary to popular belief, there is no brand on the forehead of probationers. They aren’t forced to wear a special symbol on their shirts, or some weird “I’m on probation” hat, so as long as they don’t do anything illegal, they’re pretty much the same as anyone else. That means they get to take a walk and be left alone.
Christopher Glenn took a walk near a school. Someone called 911. Responding officers were filmed arresting him for loitering—an arrest that he resisted.
It’s unclear why someone called 911. Maybe Glenn was an unfamiliar face in the neighborhood, and someone assumed that if a face is unfamiliar, it must be there for unsavory purposes. Maybe it’s the ubiquitous “see something, say something,” designed to turn every good guy into a good snitch, just in case.
More to the point, people feel empowered to turn to the police whenever someone makes them feel at all uncomfortable. After all, Glenn was walking near a school, and we’ve spent decades stoking fears of child-snatching, even if it’s mostly myth. What about the children?
So the police did their job and put Glenn in their patrol car for “loitering,” because walking while on probation isn’t a thing, yet. On behalf of the Georgia Association of Criminal Defense Lawyer, Andrew Fleischman submitted an amicus brief on Glenn’s behalf.
At the hearing, the court found that, because Glenn committed no crime by taking an afternoon walk, officers were not “not operating in the lawful discharge of [their] official duties when they arrested him.” Woodward v. State, 219 Ga.App. 329, 330 (1995). That meant he could not be revoked for either loitering or obstruction.
But, although the court acknowledged “a right to . . . attack the validity of the arrest or detainment or obstruction,” it found that there was “no good legal basis to say that you’re now justified to tear up stuff or destroy or damage property.”
The problem was that Glenn, who was basically in the position of being a kidnap victim of the cops at the point where he was placed in the patrol car, decided that he preferred not to be in the patrol car.
After he was placed in a patrol car, he kicked a door off its hinges.
This created a peculiar conundrum. Glenn could not be violated for resisting an arrest for which the officers had no cause, as they were not “operating in the lawful discharge of their duties” by seizing Glenn without cause. But if Glenn was entitled to resist the arrest, challenge their seizure, how could he do so without damaging the patrol car door (or some other part of the patrol car, as the case may be) which stood between him and the freedom to which he was lawfully entitled?
The State argues that Georgians may only be justified in defending themselves against people, not property. Under this theory, a child who kicked her way out of a kidnapper’s trunk would have no defense to a charge of criminal damage to property. It would only be through prosecutorial discretion that she would not find herself in handcuffs alongside her attacker. Similarly, a woman resisting a rape might be justified in using force, perhaps even deadly force, against her assailant. But she must be careful to do so without ripping his shirt or damaging the gun he is pointing at her.
Absurd as these examples sound, they reflect the problem raised by Glenn’s not being violated for the baseless charge of loitering, but yet being violated for damaging the patrol car door when he sought to assert his right to be free from an unlawful seizure.
There is an understandable reaction to the situation, as reflected by the hearing judge. Sure, you can’t be arrested when no crime was committed, but that doesn’t mean you get to destroy police property. Indeed, there’s a visceral reaction to the destruction of property that seems to go over the line.
Here, OCGA § 16-3-20 states that: “[t]he fact that a person’s conduct is justified is a defense to
prosecution for any crime based on that conduct.”
Reading the text literally…presents a common-sense rule: people lawfully resisting a violent felony need not take special measures to protect their attacker’s property. By contrast, the State’s proposed reading changes the meaning of the word “any” and significantly weakens the natural right of self-defense embedded in American law.
Had Glenn been released, and then took a hammer to the patrol car’s door to exact revenge, he would be culpable for the destruction of property. But if his seizure was unlawful, and he was entitled to freedom, his kicking the door off its hinges wasn’t an independent act of destruction of property, but an act to effect his freedom.
Under this regime, law-abiding homeowner must worry, in shooting a home invader, whether he might illegally damage the criminal’s property in lawfully ending his life.
As the examples suggest, the law would permit a person to defend himself, even to the point of taking the life of another, but the State’s contention is that he would nonetheless be criminally liable for any property damage sustained in the process. Most peculiar.
Georgia’s laws of justification do not privilege property over people.
The law often omits reference to the obvious, because it’s, well, obvious. That doesn’t prevent a zealous prosecutor whose main case fell into the toilet from getting more imaginative in his approach. Here, Glenn’s “offense” of taking a walk near a school failed miserably to justify his arrest, despite whatever discomfort the 911 caller might have felt toward this unfamiliar fellow.
So when that failed, the prosecution came up with a way to salvage the bust by exploiting a seam in the law where no one would have thought it possible. Contrary to what reasonable people might think, ridiculous applications of law are hardly unusual, and when all else fails, are often discovered to create a gap when there’s no legitimate way to sustain a conviction.
Here, the defendant kicked at a patrol car’s door immediately after being placed inside because he was attempting to escape from unlawful confinement—exactly the motivation that justified his obstruction of the officers attempting his wrongful arrest.
Glenn didn’t damage the door, but freed himself from unlawful confinement. That the door was damaged in the process wasn’t his fault, but the fault of the officers who unlawfully placed the door between Glenn and freedom. If he was entitled to freedom, then the patrol car door was merely an obstacle to be eliminated. The solution isn’t to hold Glenn culpable for damaging the door, but for the cops not to put a door between a man and his rightful freedom.