PORTLAND, Ore. (AP) - A Eugene man hit by police with a stun gun at an anti-pesticide rally in 2008 can continue to pursue his appeal of a resisting-arrest conviction, the Oregon Supreme Court ruled Friday.
In May 2008, a police officer twice used a stun gun on protester Ian Van Ornum, who was lying on the ground at a rally in Eugene. The Eugene chief of police did not discipline the officer, Judd Warden.
Van Ornum was charged with resisting arrest and disorderly conduct. At trial, after arguments, the trial court judge proposed instructions to the jury that said that a police officer should determine the appropriate use of force.
Van Ornum's trial attorney didn't object to the jury instructions, and this would become important later. Instead, the attorney submitted a proposed instruction which said that the jury should consider the measure of "unreasonable force" from the point of view of the person being arrested.
The judge turned him down, the jury got the original instruction to see things from the police point of view, and they convicted Van Ornum of disorderly conduct and resisting arrest.
Van Ornum started his appeals process but, in the meantime, the state Supreme Court ruled on a different resisting-arrest case with great importance to Van Ornum. The court found that a man who was convicted of resisting arrest did not begin resisting until he was hit with pepper spray and an officer repeatedly punched him in the back.
"In that case, whatever the officer's perception for the necessity of using such force," the court wrote in that case, "the jury could have found that a reasonable person in (the arrestee's) position would have believed that the officer was using unlawful force against him."
Now, Van Ornum's appeal took on a very different look. Instead of being based on the officer's point of view, the Supreme Court had instructed judges to tell juries to consider the matter from the point of view of the person being arrested.
Van Ornum included that in his appeal. The Oregon Court of Appeals said they couldn't rule on the case because Van Ornum's trial attorney didn't raise an objection to the jury instructions.
But the Supreme Court said Friday that the instructions were in error, and are therefore reviewable by the court of appeals. The appeals court can either decide to send the case back to trial court or take no action on it, leaving Van Ornum's conviction intact.
Reach reporter Nigel Duara on Twitter at http://www.twitter.com/nigelduara
Copyright 2013 The Associated Press