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A person cannot be charged with resisting arrest based on the number of officers present, but rather on their separate, voluntary acts of resistance, the Colorado Court of Appeals decided.

In a case from El Paso County, the defendant's struggle against officers “was a continuous course of action to avoid a single arrest that did not end until he was shot,” wrote Judge Terry Fox for the three-member appeals panel, which ruled on the issue for the first time on Thursday.

In May 2015, Brian Douglas Lowe escaped from parole supervision and the sheriff’s office received a tip that he was in a Colorado Springs Hobby Lobby. Lowe was using a store telephone when a lieutenant and sergeant approached him, telling Lowe he was under arrest. Lowe resisted an attempt to handcuff him, and grabbed one of the officers’ Tasers. He also was wielding a knife during the encounter, which prompted one officer to shoot Lowe three times.

Among other crimes, Lowe received a conviction on two counts of resisting arrest and for assaulting a peace officer. The court gave him two consecutive 64-year prison sentences.

The double jeopardy clauses of the U.S. and Colorado constitutions generally prevent multiple punishments for the same criminal conduct. In Lowe’s case, the appellate panel sought to determine the “unit of prosecution,” or how the law divides criminal conduct into separate acts with which to charge a defendant. In Colorado, resisting arrest happens when a perpetrator uses or threatens to use physical force, or when they create a substantial risk of injury to an officer.

Lowe contended that the El Paso County District Court should have merged his two resisting arrest convictions — one for each officer — because he only resisted one arrest. The appeals panel concurred that the statute did not hinge on the number of officers present.

“However, we disagree that the unit of prosecution is based upon the number of arrests resisted,” wrote Fox. Instead, she explained, resistance is measured by the number of separate, voluntary actions from a perpetrator.

The court found no interruption during the arrest, meaning Lowe continuously refused to cooperate until officers shot him.

“Because Lowe was never subdued, the attempt to arrest him was never re-initiated. Therefore, we hold that the two resisting arrest convictions should merge,” the opinion indicated. Consequently, Lowe merited only one sentence for the charge.

Aya Gruber, a professor of criminal law at the University of Colorado, said that "multiplicity" cases, such as assaults, will generally be treated by courts as one offense, even though in theory there could be a series of violations arising from the encounter.

"Of course, multiple charges can arise from one act that produces multiple victims — a reckless driver kills two victims in one crash," she said. "But here, the court is saying that resisting arrest is not like an assault on a victim but more like, say, a disturbing the peace. If I become disorderly in public, it will not suddenly become 100 counts of disturbing just because there were 100 people in the vicinity."

The panel also agreed with the defendant on another aspect of his appeal. Lowe’s attorney before trial asked the El Paso sheriff to provide personnel and internal affairs records for the arresting officers, including “any allegations of misconduct, mishandling evidence, dishonesty and excessive use of force.” The office delivered the files for private review, and the trial court decided against public release.

District court Judge Lin Billings Vela noted that “[a]ny relevancy of the reviewed records from [the Sheriff’s Office] is remote and speculative at best,” and that maintaining the officers’ privacy was more compelling.

While the Colorado Supreme Court has recognized law enforcement personnel’s right to privacy in their employment files, Fox explained there is an override if the documents further a “compelling interest in the determination of the truth” or if the information is exculpatory for the defendant. The court agreed that Sergeant Keith Duda’s files contained no relevant information.

However, “after reviewing [Lieutenant Robert Shane] Mitchell’s sealed files, particularly reviewing for complaints against Mitchell charging excessive use of force and challenging Mitchell’s credibility,” Fox wrote, “we conclude that the following records relate to Mitchell’s credibility and should have been disclosed.”

Those included documents from six separate investigations arising from allegations that Mitchell falsified reports, failed to report a use of force and made false statements. Some of the claims were ultimately deemed unfounded, but the appellate judges noted that Mitchell’s credibility was relevant to Lowe’s convictions. As such, the trial court erred when it withheld from the defense information related to Mitchell’s past misrepresentation of facts.

The appeals court ordered the El Paso judge to give Lowe’s counsel access to the documents, and to grant a new trial if, given the information therein, there was a “reasonable probability that the result of the trial would have been different.”

The case is People v. Lowe.

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