Resisting an Unlawful Arrest

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 Can I Resist an Unlawful Arrest?

The United States Constitution provides that a citizen may resist an unlawful arrest. It is important to be aware, however, that the laws regarding unlawful arrests and resisting arrest depend upon the state in which the incident occurs.

Traditionally, the general rule was that the offense of resisting arrest included an assumption that the arrest was a legal arrest and, therefore, it was not a crime to resist an unlawful arrest. Therefore, individuals could resist arrests which were made without the proper authority to do so, which included arrests made under invalid statutes or arrests made without warrants or probable cause.

Many states, however, have passed statutes which limit the ability of individuals to resist arrest, even if it is an unlawful arrest. Because of this, while it may be legal to resist an unlawful arrest, the rules of the jurisdiction will dictate exactly what is permitted with regard to resisting the arrest.

Resisting arrest occurs when an individual interferes with an attempt by law enforcement to perform a lawful arrest. In some states, it is referred to as obstruction.

Resisting arrest is typically defined as an individual using any amount of physical force to prevent a law enforcement from arresting, handcuffing, and/or taking the individual to jail. Even a small amount of force may be enough to constitute resisting arrest.

The crime of resisting arrest is typically charged as a misdemeanor. Therefore, in addition to any charges already an individual is already facing, if they resist arrest, another charge may be brought which adds more fines and possible jail time.

It is important to be aware that if an individual attempts to resist arrest and uses physical force, the charge of resisting arrest can be elevated to assaulting a law enforcement officer, which is a felony charge. Due to the fact that resisting an arrest often involves an individual engaging in a physical struggle with the law enforcement officer, there would be a high probability that the misdemeanor resisting arrest charge would turn into a felony assaulting a law enforcement officer charge.

What is a False Arrest?

False arrest is a common law tort where a plaintiff claims they were held in custody or arrested without legal justification or without an arrest warrant. False arrest is also sometimes referred to as false imprisonment or wrongful arrest.

False imprisonment occurs when an individual holds another individual against their will or takes them into custody. False imprisonment may be committed by both law enforcement and private individuals.

In order to be guilty of committing a false arrest, law enforcement must be acting without authority. This standard is different from law enforcement arresting an individual without probable cause or without any supporting evidence.

Wrongful arrests or false arrests may also include:

  • Arresting the wrong individual;
  • Arresting an individual without probable cause;
  • Arresting an individual without just cause;
  • Arresting an individual without an arrest warrant or legal justification;
  • Arresting an individual based on their race; and
  • An arrest which is made for personal gain.

The majority of individuals who are involved in wrongful arrest cases typically file a lawsuit against the arresting officer and law enforcement department for damages. As noted above, in some states, individuals may have the right to resist an unlawful arrest, but usually with limitations.

What States Allow to Resist an Unlawful Arrest?

It is difficult to provide a listing of which states permit individuals to legally resist an unlawful arrest and which do not. This is because even in states which permit resisting an unlawful arrest, there are limitations.

These limitations include rules such as:

  • The force is required to be reasonable and necessary in such a way that it responds to the amount of force being used by the officer who is making the arrest;
  • An individual’s resistance must occur during the time the arrest is being attempted;
  • The arrest must have no legal basis; and
  • The force used must be no more than what is required to resist the arrest.

Numerous states have eliminated the right to resist arrest and require citizens to comply with an arrest, even if they believe it is not legal. An individual may challenge the arrest once they are taken into custody.

A successful challenge of an arrest may leave an individual’s charges being dropped. It may also allow an individual to file a civil claim of false arrest against law enforcement.

In Texas, resisting an unlawful arrest is a crime. An individual may be found guilty of resisting arrest without being charged with any other offenses.

In the State of New York, an individual is not permitted to prevent a law enforcement officer from making an authorized arrest. Law enforcement has the authority to make an arrest if they have probable cause to believe that the individual has committed a crime.

For all practical purposes, there are no states which provide individuals with the right to resist unlawful arrest. Even in the states where the law permits the possibility of the right to resist an unlawful arrest, that right is very limited.

What Can I Do to Resist an Unlawful Arrest?

If an individual is in a state that does permit resistance to unlawful arrests, there are still limitations placed upon what actions can be taken, including:

  • An individual may only use the amount of force which is reasonably necessary. Some states have limited this rule even further by refusing to allow any force against law enforcement officers who are performing their authorized duties, regardless of whether an arrest is legal;
  • In certain state, there are exceptions for good faith arrests, where an arrest by a law enforcement officer acting in good faith cannot be resisted; and
  • An individual cannot resist arrest because they believe the law under which they are being arrested is unconstitutional.

What Should I Do if I am Arrested Unlawfully?

Due to the limits which are placed on resisting arrest in many states, resisting an unlawful arrest can be a very risky undertaking. In the majority of states, it is a crime to resist a law enforcement officer, even if the arrest would be unlawful.

It can be very difficult for an individual to determine and know under what circumstances, if any, it would be permissible for them to resist arrest as well as the amount of force which they are permitted to use. Because of these limitations, if an individual is being arrested, they should cooperate peacefully.

If an individual feels that they were wrongfully arrested, they can file a complaint for police misconduct. It may also be helpful for individuals to be aware of what is required to obtain a conviction for resisting arrest.

Although the elements of resisting arrest vary by state, typically, the prosecution must show:

  • The defendant intentionally resisted a law enforcement officer;
  • The defendant acted violently or threatened the law enforcement officer; and
  • The law enforcement officer was lawfully discharging his official duties and properly conducting their official duties.

The amount of resistance must be sufficient to show some form of physical force or violence was used by the defendant at the time of their arrest which interfered or obstructed the law enforcement officer from being able to carry out their official duties.

Do I Need a Lawyer?

It is essential to have the assistance of a criminal defense lawyer if you have been accused of resisting arrest and you believe the arrest was unlawful. Your lawyer can review your case, advise you of the laws of your state, and help you file a complaint. Your lawyer will also appear in court with you during any proceedings.

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