Resisting Arrest

A police officer orders you to stop. The officer then says, “You are under arrest.” You believe that the arrest was unfair. But if you fight back in the wrong way, you could be charged with resisting arrest.

This article discusses the actions that can lead to a resisting charge, defenses to resisting arrest, and much more. However, because so many different types of conduct can lead to a resisting arrest charge, it is one of the most complicated crimes in criminal law. If you are charged with resisting arrest or any other criminal offense, contact a criminal defense attorney as soon as possible.

What Is Resisting Arrest?

The crime of resisting arrest goes by many names, including obstruction of law enforcement, interference with a police officer, or simply resisting. State laws also define the crime in different ways. In most states, the elements of the crime require proof that a person:

• Intentionally prevented a law enforcement officer from completing the arrest of themself or another; and
• Knew or had reason to know that the person making the arrest was a law enforcement officer acting within the scope of their official duties.

What Does It Mean to “Resist”?

Resistance can be put into two categories: physical and nonphysical.

Physical Resistance

In physical resistance, the arrestee uses physical force against the officer. Examples of this type of resistance can include:

• Hitting
• Kicking
• Pushing
• Biting
• Flailing
• Throwing things

Not all physical resistance involves harm to officers. Running away and hiding from law enforcement also fall within this category.

Nonphysical Resistance

The most well-known form of nonphysical resistance is passive resistance. In passive resistance, arrestees make their bodies go limp or stiff to make arrest more difficult. Other forms of nonphysical resistance include threatening officers, giving them false information, or refusing to follow their orders.

Do I Have To Hurt an Officer To Be Charged With Resisting Arrest?

No. In many states, you simply need to create a substantial risk of harm to the officer. This means that you created a situation where it was highly likely that the officer could be hurt. So, swinging at an officer and misses is still resisting arrest.

Does Resisting Arrest Require Intent?

Not always. For example, Ohio’s resisting arrest law includes both intentional and reckless conduct. (A person acts recklessly when they know that their conduct could hurt someone, but they keep doing it anyway.)

For example: A police officer is standing next to their patrol car. Sam starts throwing rocks at the car—a rock lands within an inch of the officer. The next rock hits the officer. Sam was reckless because although he was not aiming for the officer, he knew that hitting the officer was a strong possibility.

Is Resisting Arrest Limited to Police Officers?

Most states limit the crime of resisting arrest to law enforcement officers, but some include other professions. For example, the California Penal Code makes it a crime to interfere with a “public officer, peace officer, or an emergency medical technician” during their official duties.

What Is the Penalty for Resisting Arrest?

In most states, resistance that doesn’t involve harm to a police officer is a misdemeanor. However, if a police officer suffers bodily injury or the arrestee uses a deadly weapon during the encounter, the crime usually becomes a felony. Whether a felony or misdemeanor, the sentence can include fines, jail time, or probation.

Also, some forms of resisting arrest may constitute other crimes. Actions like running away or hiding from law enforcement may lead to charges for related offenses like obstruction of justice or evading arrest.

Do I Have the Right To Resist an Unlawful Arrest?

An unlawful arrest is an arrest that an officer makes without having the legal authority to do so. An arrest can be unlawful for many reasons ranging from lack of probable cause to failure to give the proper warnings before the arrest.

Today, most states make resisting even an unlawful arrest a crime. Still, even in states where the right to resist an unlawful arrest still exists, you must be extremely careful. Although an arrest can be unlawful for many reasons, in most cases, it is very difficult to decide when a lawful arrest becomes an unlawful one.

Relying solely on your belief that an arrest was unlawful is not wise. The consequences of being incorrect are far too high.

Are There Any Defenses to Resisting Arrest?

There are several ways to attack a resisting arrest charge. You can:

• Show that you fully complied with all orders and didn’t attack or threaten officers
• Argue that you didn’t know that the person was a police officer
• Prove that the officer was acting outside of their official authority
• Argue that your actions had nothing to do with avoiding arrest (i.e., you pulled away because you saw a snake, not to get away from the officer)

In some states, self-defense is a defense to resisting arrest when the arresting officer uses excessive force. However, the arrestee must use just enough force to stop the excessive force, and once the officer’s excessive force ends, the arrestee’s use of force must stop immediately.

Finally, police officers are allowed to use force in certain circumstances. If you incorrectly believe that the force was excessive when it was within legal bounds, it will not help your case.

Get Help With a Resisting Arrest Case

Resisting arrest is a complex criminal charge. If you or a loved one has been charged with resisting arrest, you may be able to mount a successful defense. But to do so, you’ll need legal advice from an experienced criminal defense lawyer. Use LawInfo’s attorney directory to find a criminal defense attorney near you.