Resisting arrest is the attempt to defy, or make difficult, a law enforcement officer’s attempt to perform a lawful arrest.
It can be a complicated concept that exists on a spectrum ranging from a misdemeanor to a felony, depending on the severity of the resistance and whether or not there is an attempt to do harm to an officer.
The Fourth Amendment provides protection against unreasonable search and seizures, unless there is probable cause. Probable cause can include:
- Information that has been gathered from witnesses or informants.
- A recognition of possible crimes, such as gang signs, tools that may be used to commit a crime, or the knowledge of activity that indicates a crime may be committed.
- Circumstantial evidence that can possibly indicate a crime, such as a broken door.
- Observations based on knowledge, sight, smell, sound, etc.
An arrest is also lawful if there is a court order or a warrant for an arrest, search, or seizure.
Felony vs. Misdemeanor
States tend to have different laws about resisting arrests and what constitutes resisting arrest. But, as a general rule, the following circumstances can result in a resisting arrest charge:
- An officer sought to arrest you
- You had reason to know that the individual looking to arrest you was an officer
- There was an active attempt to prevent the officer from executing the arrest in a safe and efficient manner
The following are forms of resisting an officer that can result in resisting arrest charges. Note that some may slightly vary by state or commonwealth:
Misdemeanor: usually passively resisting by performing the following actions:
- Running from officers when they attempt to arrest you
- Hiding from officers during an arrest attempt.
- Not opening a door when summoned.
- Making your body go limp or stiff during the arrest process.
Possible penalties for misdemeanor charge include:
- Anywhere from 0 days to 6 months in jail.
- A fine depending on the state or commonwealth.
Felony: resisting arrest can be charged as a felony if:
- The individual either successfully or attempts to kick, hit, or run toward an officer.
- Attempting to push an officer off of the body once they are on top.
- The threat of physical violence against an officer.
- The use or attempted use of a weapon against an officer, which can also result in additional charges.
- Yelling at individuals who are standing by, which may result in an assault or threats toward an officer by a third party.
Possible penalties for felony charges include:
- Anywhere from 0 to 12 months in jail
- A fine maxing out at a few thousand dollars, depending on the severity of the resistance and state or commonwealth guidelines.
- A possibility of prison depending on the severity of the action and whether or not there are prior convictions
What Does The Prosecution Need To Prove?
A successful prosecution of an individual charged with resisting arrest must prove, beyond reasonable doubt, that:
- The defendant intentionally acted in a manner that hindered or made the arrest more difficult, even if there was no intended harm or attempts at violence against an officer. This can include running, hiding, or physically resisting.
- The defendant acted out or threatened violence against an officer during the arrest attempt. This can include physically attempting to or succeeding in striking, kicking, or pushing an officer.
- The officer was performing a lawful arrest while properly engaged in relevant duties, like investigating a crime or performing a lawful traffic stop.
What Does The Defense Need To Prove?
A defendant does not need to prove their case beyond a reasonable doubt. They simply need to assert, with enough evidence, that the individual had adequate reason to resist or defend themselves against an officer. Common defenses may include:
- Self Defense: Officers are not permitted to use violent or excessive force when performing an arrest. Even if the arrest is legal, an attempt to defend oneself against excessive or violent force can be a valid form of defense.
- Inadequate Knowledge: This implies that the police officer was not adequately identified as an officer, be they off-duty or in civilian clothing. An individual has reason to assume that they are not being lawfully arrested if an officer cannot identify themselves.
- Error in a Report: It is generally not advisable to accuse an officer of lying, but it is possible to assert that the circumstances in the police report in or an officer’s account of the situation are fabricated, altered, or simply false.
- Unlawful Arrest: An arrest is not lawful if there is no legal basis for the arrest, such as a lack of warrant or probable cause. As such, depending on the state or commonwealth, an individual may use reasonable force to defend themselves against the unlawful arrest. Though, it is usually advisable to submit to the arrest and argue that the arrest was unlawful in court.
De Castroverde Law Group has the tools necessary to provide a defense against unlawful arrest or indications that you have been mistreated by officers. Contact our team to learn more about how we can represent you.