Saturday, April 23, 2011

Case o' The Week: Don't Mess with (Park) Rangers - Bibbins, Willfulness, and "Resisting"

The bad news is that Kevin Bibbins had a broken leg, was forced to walk on it to respond to rangers' orders, was hammered with a taser (twice) when he tensed up (until he collapsed onto the ground) -- and ultimately lost his appeal for resisting arrest.

The good news is that he created some good new mens rea law along the way. United States v. Bibbins, 2011 WL 1486095 (9th Cir. Apr. 20, 2011), decision available here.

Players: Nice win on legal issue (though sadly, facts got in the way for reversal) for AFPD Richard Boulware, D. Nev.. Decision by Judge Paez.

Facts: Park rangers stopped Bibbins, who was driving a motor home, in the Lake Mead National Recreational Area. Id. at *1. The rangers and Bibbins bickered over an obstructed license plate; the rangers then ran Bibbins’ info and discovered an active felony warrant. Id. Bibbins’ prior charges, they learned, included assaulting officers and other violent conduct. Id. The four rangers decided to use a microphone and order Bibbins to walk out of the motor home and to the back of the truck, to be arrested. Id. Bibbins left the truck, as instructed, but limped and complained that his leg was broken. Id. When he got to back of the truck he tightly gripped the tailgate because of pain in his leg, and for fear it would break again. Id. at *2. He was instructed to spread his legs; when he didn’t his arms were grabbed, he allegedly tensed his arms, and he was ultimately tased (twice). Id.

Having been twice electrocuted, he fell to the ground “then complied with all of the rangers’ instructions.” Id.

At the misdemeanor trial, a defense doc confirmed that Bibbins’ leg was in fact broken, had not healed, and confirmed it would have been painful to walk. Id. The magistrate found Bibbins guilty of resisting arrest, a violation of 36 C.F.R. § 2.32(a)(1). Id.

Issue(s): “Bibbins contends that the ‘resisting’ offense of 36 C.F.R. § 2.32(a)(1) contains a willfulness element and that the evidence at trial was insufficient to show that he acted willfully. The question of the mens rea requirement for a violation of the “resisting” offense of § 2.32(a)(1) is one of first impression for this court.” Id. at *3 (footnote omitted).

Held: “As the magistrate judge noted, the dictionary definition of the word ‘resist’ is: ‘to exert oneself to counteract or defeat, strive against: OPPOSE.’ Webster's Third New International Dictionary 1932 (1993 ed.) (capitalization in original). From this definition, we do not think a person can ‘resist’ someone or something without forming an intention to do so. Accordingly, we hold that the resisting offense of § 2.32(a)(1) includes a mens rea element of willfulness.” Id. at *3.

“We ultimately conclude, however, that substantial evidence supports the magistrate judge’s finding that Bibbins acted willfully.” Id.

Of Note: This little misdemeanor case is actually a great example of a very thoughtful mens rea analysis, and is a useful textbook for mens rea challenges for other statutes. Judge Paez describes many interpretative rules that will transport well: for example, he explains that interpretations should favor consistent mens rea requirements across the various offenses within a criminal statute. In the present case, this particular “resisting” C.F.R. can also be satisfied by, “threatening,” “intimidating,” or “intentionally interfer[ing]” with an officer – all of which require “willfulness.” Id. at *4. Because these other offenses require “willfulness,” Judge Paez holds that “resisting” should require that mens rea as well. Id.

Similarly, Judge Paez rejects those old “general intent” and “specific intent” labels we learned in law school – explaining that the Court’s preferred practice is to identify the particular intent instruction that properly reflects the intent requirement of the charged offense.” Id. at *3 & n.5.

How to Use: Bibbins is a welcome decision for those who defend the colorful clients who often frequent federal parks and recreational areas (the Golden Gate National Recreational Area, for example, comes immediately to mind). Judge Paez continues the welcome trend of avoiding strict liability for Forest Service regulations, explaining the Ninth’s “predilection towards reading an intent element into regulations of the National Forest Service.” Id. at *4.

For Further Reading: Mustached Mr. Bibbins is an ex-Marine who likes fly-fishing, horse-back riding, has forty acres in Northern Utah, and who likes a “woman who is a good kisser.” See Profile here.

Image of Smokey the Bear from

Steven Kalar, Senior Litigator N.D. Cal FPD. Website at


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