Resisting Arrest

The term resisting arrest refers to the act of physically struggling against, or attempting to elude a police officer, in order to escape being restrained. According to the law, a person cannot use physical force to resist being lawfully arrested by a police officer. The act of resisting arrest is a crime that may be charged above and beyond any other crime for which the individual is charged. To explore this concept, consider the following resisting arrest definition.

Definition of Resisting Arrest

Noun

1. The act of physically struggling against, attempting to flee from, or threatening a police officer.

What is Resisting Arrest

In the United States, the laws hold resisting arrest to be a separate crime that may be charged in addition to, or regardless of, any other crime for which a person may be charged. The act of using force to avoid being restrained, fleeing from a police officer to avoid arrest, and threatening a police officer with bodily harm while attempting to elude arrest are all considered crimes.

The purpose of laws against resisting arrest is to protect law enforcement officers in the discharge of their duty, and to protect the public from harm that may be caused by someone violently resisting, or running from police. In many jurisdictions, obstructing or delaying a law enforcement officer in the performance of his duty is also considered resisting, though some jurisdictions use the term “obstructing police officer.” Additionally, in many states, obstructing the duties of an emergency medical technician / Paramedic, and other emergency services personnel are also included in resisting and obstructing laws.

In order to enforce these laws, it is necessary to allow a person to be criminally charged, tried, and convicted for resisting arrest, whether or not the individual is charged in the act for which the arrest was made. In fact, a person can be charged with resisting arrest even if the arrest was not lawful.

Other Actions Considered Resisting Arrest

Because resisting laws cover acts that obstruct an officer in going about his duties, there are certain other acts that may be charged as resisting arrest or as obstruction. These include such acts as:

• Going limp – an individual forcing an officer to carry or drag him in order to accomplish the arrest
• Third party obstructing – physically obstructing an officer from arresting another person may be charged as a crime, as may delaying officers from accomplishing their goal of investigating a crime, or arresting a suspect. Such charges would be levied against the third party doing the obstructing.
• Providing false information – providing a law enforcement officer with a false name or other false personal information, with or without a false ID, in order to avoid arrest, is considered arresting arrest.

For example:

Martha joins a group of people protesting a new city ordinance outside the government building. The group is loud, harassing people as they walk to and from the offices doing business. When police attempt to disburse the group, several of them sit down across the access walkway, and refuse to leave.

As an officer places handcuffs on Martha, she refuses to get up, then forces the officers to carry her to a patrol car, as she just allows her body to hang limply. The initial arrest was made for disturbing the peace, and failing to disburse. However, in this example of resisting arrest, Martha may be charged with resisting as a separate crime.

Is Resisting Arrest a Felony

In most jurisdictions, resisting arrest is a misdemeanor, though it can result in jail time. In some cases, however, resisting may be charged as a felony. This would depend on the level of violence committed by the individual in resisting – and often whether innocent bystanders are injured. Resisting may also be charged as a felony, and be punished with prison time, if the individual has previous convictions for resisting arrest.

Elements of Resisting Arrest

In order for a charge of resisting arrest to be successfully prosecuted as a felony, the prosecution must prove certain elements. These elements vary by state, but generally include:

• Willful Obstruction – The individual willfully, intentionally resisted, delayed, or obstructed a law enforcement officer. It is not necessary to prove the individual intended the harm caused by his actions.
• Act or Threat of Violence – The individual acted in a violent manner, or threatened violence against, the law enforcement officer. This might include punching, striking, or shoving the officer, or threatening violence while holding something that could be considered a weapon.
• Recognized Public Officer – The individual knew – or reasonably should have known – that the individual he resisted against was a law enforcement officer, or emergency medical technician.
• Official Duty – The law enforcement officer was engaged in his official duties when attempting to restrain or arrest the individual.

Defenses to Resisting Arrest Charges

Just as prosecutors must prove certain elements of resisting arrest in order to successfully prosecute an individual, that individual may offer defenses to resisting arrest charges at trial. While the laws of each state vary on this issue, there are generally two categories of defenses to resisting arrest: (1) self-defense, and (2) unlawful arrest.

Self-Defense

Law enforcement officers are allowed to meet force with force in affecting an arrest, but if an officer acts with a level of force or violence that is not justified, the individual charged with resisting may be able to put forth a defense of self-defense. This defense cannot be used if the individual arrested acted violently toward the arresting officer, unless the officer acted in a violent manner first. In addition, the individual fighting back must restrain himself to only the force reasonably needed in the circumstance.

Unlawful Arrest

An unlawful arrest is defined as an arrest that is not sanctioned by law. This might include an arrest made without probable cause, or without a warrant. In some states, a person who is being arrested unlawfully may resist with reasonable force, though in most states resisting is still unlawful. The individual must submit to arrest by a law enforcement officer who is performing the duties of his job, then make his case at a later time.

Penalties for Resisting Arrest

Penalties for resisting arrest vary by state, as well as the circumstance. A person convicted may face the following penalties for resisting arrest:

• Fines – The court may penalize a person found to be guilty of resisting arrest by imposing a fine. The amount of the fine likely varies by jurisdiction, and certainly according to the circumstance.
• Community Service – In addition to, or in place of, a fine, the court may order someone guilty of resisting arrest to serve a specific number of hours in community service.
• Probation – Probation may be ordered, rather than incarceration, in some cases of resisting arrest. This requires the individual to meet on a regular basis with a probation officer, and to fulfill other terms specified in his probation order. This may include maintaining employment, not engaging in other illegal activities, and other specifics.
• Incarceration – Penalties for resisting arrest that rise to a serious level, or which are charged as felonies may involve time in the county jail, or even a sentence of one or more years in the state prison.

Example of Resisting Arrest Statute

Each state has its own laws regarding what constitutes arresting arrest, as well as the penalties for breaking this law. As an example, California’s law provides that:

California Penal Code §148(a)(1)

(a) (1) Every person who willfully resists, delays, or obstructs any public officer, peace officer, or an emergency medical technician, as defined in Division 2.5 (commencing with Section 1797) of the Health and Safety Code, in the discharge or attempt to discharge any duty of his or her office or employment … shall be punished by a fine not exceeding one thousand dollars ($1,000), or by imprisonment in a county jail not to exceed one year, or by both that fine and imprisonment.

Most states also make provisions for sentencing in the event the defendant has a history of convictions for resisting arrest, and even for other crimes. These sentences are usually stiffer than for first time offenders.

Resisting Arrest Example

In June 2015, 30-year old banker, Noel Carter, was approached by police after a report that he had been abusing his girlfriend at a night club. As police attempted to arrest Carter, he fled from them, then fought violently with officers when they caught up to him, and tried to restrain and handcuff him.

Because cell phone videos popped up online, this case generated a host of public outcry, as people were shown just one side of the story. The officers testified to having ordered Carter to stop, and to get on the ground, which he refused. Officers tased Carter, and wrestled with him on the ground. Carter had bruises from the conflict when he was booked into the jail. When he was charged with resisting arrest, Carter claimed police had engaged him with excessive brutality – kicking him, beating him, and using pepper spray on him.

Arresting officer Dave Cruz told the jury that Carter had first run from them, then fought violently to get away once they caught up to him. The officer testified that, after the chase, and several long minutes of wrestling with Carter, he was exhausted physically, and feared for the safety of himself and his partner, as well as the safety of bystanders should Carter get away from them.

In his defense, Carter tells the jury he ran because he was afraid of the police, and that he had fought them because he was afraid they were going to kill him. In his own words, Carter said, “I thought they were going to beat me to death.”

After a week-long trial, and seven hours of deliberation, the jury found Noel Carter guilty of battering and resisting police officers who were attempting to arrest him. The jury deadlocked, however on the charge of resisting arrest with violence.

Related Legal Terms and Issues

• Felony – A crime, often involving violence, regarded as more serious than a misdemeanor. Felony crimes are usually punishable by imprisonment more than one year.
• Jurisdiction – The legal authority to hear legal cases and make judgments; the geographical region of authority to enforce justice.
• Misdemeanor – A criminal offense less serious than a felony.