The constitution states that citizens may resist an unlawful arrest and the laws of resisting an unlawful arrest depends on which state you happen to be in. The traditional rule was that the crime of resisting arrest included the assumption that the arrest was a legal one, so it was not a crime to resist an illegal arrest. Therefore, people could resist arrests made without authority to do so, such as arrests made under an invalid statute, or without a warrant or probable cause. However, many states have passed statutes limiting the ability of people to resist even unlawful arrests. Therefore, while it might be legal to resist an unlawful arrest, it will depend on the rules of the jurisdiction exactly what is allowed.

What Is a False Arrest?

False arrest is a common law tort where the plaintiff states that he or she was held in custody or arrested without legal justification or without an arrest warrant. False arrest, sometimes known as false imprisonment or wrongful arrest, also occurs when someone holds you against your will or takes you into custody. This can be done by both law enforcement and/or a private person. To be guilty of a false arrest, the police must act without authority. This standard is different than police arresting someone without probable cause or with any supported evidence.

Wrongful arrest or false arrest also includes:

  • Arrest of the wrong person
  • Arrest of someone without probable cause
  • Arrest without just cause
  • Arrest without an arrest warrant or legal justification
  • Arrest based on race
  • Arrest made for personal gain

Most people that are involved in a wrongful arrest case usually file a lawsuit against the arresting officer and the police department for damages.

What Can I Do to Resist an Unlawful Arrest?

If the state does allow someone to resist an unlawful arrest, there are still several limits on what can be done:

  • A person can only use the amount of force that is reasonably necessary. Some states have limited this even further by refusing to allow any force against police officers performing their authorized duties, regardless of whether the arrest is legal.
  • Some states also have exceptions for good faith arrests, where an arrest by a police officer acting in good faith cannot be resisted.
  • A person cannot resist arrest because he believes the law under which he is being arrested is unconstitutional. 

What Should I Do if I am Arrested Unlawfully?

Because of the limits in many states, resisting an unlawful arrest can be a very risky thing. In most states, it will still be a crime to resist a police officer, even if the arrest would be illegal. It can be very difficult to know under what circumstance, if any, it is permissible to resist arrest and what amount of force can be used. Because of this, if you are being arrested you should go peacefully. If you then feel that you have been wrongfully arrested, you can file a complaint for police misconduct.

Do I Need a Lawyer?

If you have been accused of resisting an arrest which you believe to have been unlawful, a lawyer will be able to help you determine the law in your area and defend you in court. If you believe that you have been wrongfully arrested, a criminal defense lawyer can advise you of your rights and help you file a complaint.