Criminal Law Blog

Escape Statute Does Not Cover Fleeing from an Attempted Arrest

Davis v. United States
 (decided August 10, 2017)

Players: Associated Judges Glickman and Fisher, Senior Judge Ruiz. Opinion by Judge Fisher. PDS for Mr. Davis. Trial Judge: John McCabe

Facts: Officers saw Mr. Davis appearing to urinate in public. They approached him, told him to put his hands on the railing, and one officer grabbed Mr. Davis's belt and pants. The officer then told Mr. Davis to put his hands behind his back, but Mr. Davis instead shoved the officer and ran off. Mr. Davis was arrested and charged with escape.

Issue: Did fleeing from an attempted, but not yet completed, arrest violate the escape statute?

Holding: No. The D.C. escape statute prohibits, in pertinent part, escaping from the "lawful custody" of a police officer. D.C. Code § 22-2601(a)(2). The DCCA had previously held in Mack v. United States, 772 A.2d 813 (D.C. 2001), that the escape statute applies to escapes from an officer's physical restraint pursuant to a lawful arrest. However, after reviewing cases from other jurisdictions, the court declined to extend Mack to an escape from physical restraint while attempting to make a lawful arrest. The court noted that a different statute, D.C. Code § 22-405, criminalizes efforts to evade arrest. But Mr. Davis was charged with escape, and that crime he did not commit.

Of Note: Once again, the DCCA rejects the government's attempt to argue that a defendant had "waived" his right to present a sufficiency issue on appeal by failing to renew an MJOA after the close of the defense case. Hopefully the government will get the hint and stop making this argument.


Read the full opinion here.