Resisting arrest transpires when a person interferes with law enforcement’s attempt to conduct a lawful arrest. Some states call this crime obstruction. Resisting arrest is usually described as using any amount of physical force to stop a police officer from arresting, handcuffing, or taking you to jail. Even a tiny amount of force can be enough.
Resisting arrest is a misdemeanor. So, in addition to any charges already being brought against you, if you resist arrest, another charge can be brought, adding more fines and potential jail time.
Can I Ever Resist Arrest?
The answer to this question varies from state to state. In most areas, you are no longer permitted to resist arrest, even an unlawful arrest. The soundest suggestion is to go peacefully with the officer. If you feel that you are the target of a false arrest or any other type of police misconduct, go with the officer and then get a lawyer and file a complaint.
If the Police Are Employing Extreme Force, Can I Resist Arrest Then?
The standard rule is that you can defend yourself if an officer uses unreasonable force against you. But this may not be the soundest idea. Instead, it may aggravate the officer(s) even more, pushing them to use even more power. Also, if you use force to protect yourself, it could be seen as resisting arrest. The best recommendation is not to aggravate the officer and never use bodily force against an officer.
What Happens If I Use Physical Force Against a Police Officer?
If you try to resist arrest and use physical force, the charge of resisting arrest can escalate into assaulting an officer. Assaulting an officer is a felony. Because resisting arrest usually involves some physical fight with an officer, there is a high likelihood that your misdemeanor resisting arrest charge can turn into a felony assaulting an officer.
How Does the Prosecution Demonstrate a Resisting Arrest Charge?
To convict someone of a resisting arrest charge, the prosecution must provide proof of the following. The jury must determine that the prosecutor has established every crime element beyond a reasonable doubt.
While these factors vary from state to state, usually, all of the following must be true:
- The defendant knowingly resisted a police officer
- The defendant acted violently or endangered the officer
- The police officer was legally discharging his official duties and adequately conducting official duties
The amount of resistance that the prosecutor must establish must be some form of physical violence or force by the defendant at the time of arrest that hindered or obstructed the police officer from carrying out his official responsibilities.
Actions Commonly Judged to be Resisting Arrest
These and other actions could be regarded as “resisting arrest” if they transpire leading up to or during the process of making an arrest:
- Physically struggling with an officer (use of force)
- Threatening violence against an officer
- Running away, hiding from, or evading police
- Physically getting in the way of an officer doing their duty
Different states may include further elements in their criminal law. Some states require a use of force or actual harm to have occurred against the officer.
Who Are “Law Enforcement Officers?”
State laws differ when it comes to specifying “law enforcement officers.” In addition to police officers, sheriffs, and other generally encountered peace officers, the term may comprise other law enforcement personnel, such as correctional officers, probation supervisors, parole supervisors, park rangers, or correctional officers.
Because private security guards are not conducting a public duty, they are usually treated as private citizens and not as law enforcement officers. Thus, resisting arrest laws often do not apply to endeavored arrests by security guards.
The outcome may differ when off-duty law enforcement officers work as private security guards. Some courts have found that laws on resisting arrest apply to off-duty police officers working as private security guards, while others come to the opposing determination.
How Much Resistance Must the Prosecutor Prove?
State laws also differ as to the types of acts and threats that will comprise felony resisting arrest. Physical violence is sufficient, while a simple refusal to talk is not enough. Non-threatening comments of disagreement with the officer’s actions usually are not enough. Nevertheless, noisy, frightening, and extended arguments can be enough.
What Are the Defenses to a Resisting Arrest Charge?
Defendants charged with resisting arrest may present one or more of the following defenses. The requirements to prove these defenses differ from state to state.
The defendant can assert that the police officer acted violently and the force that was used was excessive, and the defendant was defending themselves from the excessive force being used. Police officers are allowed to use the amount of force required to complete the arrest. But if the arresting officer acts violently and is not justified in doing so, the arrestee may defend himself and resist the arrest. For instance, if a law enforcement officer inexcusably tries to shoot the arrestee, the arrestee may fight back. The arrested person could not act violently toward the arresting officer unless the officer acted violently first.
Notably, the arrestee must exert self-restraint, using only the force reasonably required under the circumstances to fight the arrest. For example, if the arrestee stops a police officer who has acted unreasonably, the arrestee cannot harm the officer further.
The defendant can assert that the initial arrest was unlawful and not permitted by law. An illegal arrest is an arrest that is not authorized by law, such as an arrest without a warrant or probable cause. A person may resist an illegal arrest in some states but only with reasonable force.
Reasonable force is typically considered only the amount of force required to resist the arrest.
In other states, statutes and court rulings have modified this law to direct a person to submit to the unlawful arrest, as long as the law enforcement officer is conducting the legal obligations of the officer’s job.
The penalties for resisting arrest hinge on the state law but typically include the following:
- Incarceration: A felony conviction generally bears a penalty of a year or more and can be served in state prison. Misdemeanor sentences may be served in local jails and usually involve less than a year of imprisonment.
- Fines: Courts can also assess fines to punish defendants. Fines differ depending on the offense and cases and range from a few hundred to several thousand dollars.
- Probation: A magistrate may permit a person to serve part of the sentence in the community rather than in jail or prison. A person on probation regularly meets with a probation officer and completes other terms and requirements, such as holding work and attending counseling. If the person disobeys probation, the magistrate may order the individual to serve time in jail or prison.
What Should I Do If I Am Arrested? Will I Need a Lawyer?
The best advice is to go peacefully with the officer(s) and say that you wish to remain silent and would like an attorney. Stay silent until you get a criminal defense attorney.
Do not try to resist and never use force against a police officer. If you feel that you are the target of police misconduct, consult an attorney and file a complaint. Anytime you are arrested, you should consult an attorney who can inform you of your rights and defenses and help you with the complicated legal process.