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Resisting Arrest Charges and Possible Defenses

Criminal Law Blog by The Law Office of Greg Tsioros

Resisting Arrest Charges and Possible Defenses

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Disclaimer: This article is not intended as legal advice and does not reflect the opinions of The Law Office of Greg Tsioros.

Resisting Arrest: What is it?

When a law enforcement officer is trying to arrest a person lawfully and that person attempts to thwart the officer’s arrest, this is classified as resisting arrest. The person can obstruct the arrest using force, or not, but in most states this act of resisting arrest is considered a felony or misdemeanor depending on the seriousness of their actions. The charges for resisting arrest are normally considered in addition to any charges for which the arrest was originally made which is why it is crucial to understand how an act gets classified as resisting arrest and what can be used as defense in court.

There are a variety of actions considered as resisting arrest, all of which hinder the police officer from arresting and handcuffing the person to take them to jail. The act of running or trying to hide from the police officer is normally classified as misdemeanor category of resisting arrest. The act of threatening or using violence towards the officer to resist arrest is all classified as felony. Other acts that are categorized as resisting arrest include presenting a false identification to the police officer or helping somebody else escape the arrest.

Acts that may not be resisting arrests

Nonviolent acts such as swearing at an officer or taking time to follow the officer’s order, all by themselves, do not classify as resisting arrest. Questioning the intent and authority of the law enforcement officer is also not resisting arrest as long as the person eventually complies with the order. But if these acts are accompanied by aggression or threats of aggression, then they may lead to charges of resisting arrest.

What constitutes a conviction for felony resisting arrest?

If a person has been charged with resisting arrest classified as a felony, the prosecution needs to produce evidence on a number of aspects of the arrest in court. Known as the ‘elements’ of arrest, it is up to the judge to decide whether these elements prove the felony on all aspects beyond doubt. The intensity or depth of the evidence may differ from state to state, but normally, all of the following aspects of the crime must be proved in order for the person to get a conviction for resisting arrest:

  • The defendant intentionally used certain acts to obstruct or hinder arrest by the law enforcement officer. Even so, the defendant need not have intention to cause the harm that his/her actions resulted in.
  • The defendant either acted with aggression towards the law enforcement officer or threatened to do so. Using an object to strike the officer or threatening to do so would also classify in this element.
  • Most of the times, police officers are simply doing their duties investigating a crime or suspicious activity. Even if the officer arrested the wrong person, it is enough to be established that the arrest was performed in the course of performing official duties.

Resisting Arrest Charge and its Defenses

There are multiple defenses against resisting arrest in the courtroom but the requirements to prove these defenses may vary from state to state. What is key to remember in order to successfully defend this charge is the fact that the police officer was hindered during lawful execution of duties.

  • Self-defense: Most arrests are lawful but some involving police misconduct or bad intent can be classified as unlawful. If the police officers are using unnecessary violence and physical force, especially with a person with physical or medical conditions, then the person has the right to defend themselves. This is also true if the police officer tried to shoot or hurt the arrestee without just cause. However, if the officer’s violence was provoked by an act of violence done first by the arrestee, then this defense will not hold in court. Also, under just circumstances, the person being arrested must use only the amount of force needed to defend themselves and not to intentionally harm the officer.
  • Unlawful Arrest: Even if you did resist the arrest but you did nothing wrong and were mistaken for someone else, the arrest would be classified as unlawful. In this case, the law enforcement officer was not really executing his or her duties especially if the arrest had no probable cause or an arrest warrant. For example, resisting an arrest or an unlawful search of your house can be defended in court. Even in such cases, only resistance that involved reasonable force for self-defense is defensible in court.
  • Officer Identification: Sometimes police officers are working undercover so it is not possible for the arrestee to identify them unless they reveal themselves. If during an attempted arrest, the undercover officer failed to properly identify him or herself, then the arrestee is bound to resist and this act of resistance can also be used as possible defense.
  • False Allegations: If you did nothing wrong that could possibly explain or justify the arrest, it can also be used as a plausible defense. For instance, being sarcastic or rude does not warrant a police officer to file resisting arrest charges.
    In all of these possible defenses, it is always helpful to have witnesses around who can testify to your claim. It is also always better to comply with the police officer making the arrest, in the first place, in order to avoid aggravating your case. Even if you think the arrest is unjustified, polite compliance is the best option as it makes it easier and quicker for your lawyer to free you of all charges rather than having an additional charge of resisting arrest on your record.

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