Resisting Arrest: Laws, Penalties, and Defenses

Resisting arrest occurs when a person interferes with a law enforcement officer's attempt to perform a lawful arrest. Some states call the crime "obstruction." The crime can be a felony or a misdemeanor, depending on the severity of the actions of the person being arrested.

Misdemeanor resisting arrest (or misdemeanor obstruction) can include actions, such as running and hiding from a law enforcement officer. Felony resisting arrest usually requires that a person either act or threaten to act violently toward the arresting officer.

Felony Resisting Arrest: What Does the Prosecutor Have to Prove?

In order to secure a conviction for felony resisting arrest, the prosecutor must produce evidence on the following issues, called the "elements" of the offense. And the judge or jury must decide that the prosecutor has proved each element beyond a reasonable doubt.

While the elements of the crime may vary from state to state, usually all of the following must be true:

• The defendant intentionally resisted or obstructed a law enforcement officer. This means the defendant intentionally acted in a way to hinder the arrest. However, the person need not have intended the result or harm that his actions caused.
• The defendant acted violently toward the law enforcement officer or threatened to act violently. For example, striking or pushing the officer would satisfy this requirement. Similarly, a defendant's threat to strike an officer with an object in the defendant's hand would also satisfy this requirement.
• The law enforcement officer was lawfully discharging his official duties. This means the law enforcement officer was properly engaged in the performance of official duties, such as investigating a crime or making a traffic stop. A law enforcement officer can be acting lawfully even when arresting the wrong person, and even if the charges are dropped or the defendant secures an acquittal at trial. (Read more on your rights if you're arrested.)

Who Are "Law Enforcement Officers?"

State laws vary when it comes to defining "law enforcement officers." In addition to police officers, sheriffs, and other commonly encountered peace officers, the term may include other law enforcement personnel, such as prison guards, probation supervisors, parole supervisors, park rangers, or correctional officers.

Because private security guards are not performing a public duty, they are usually treated as private citizens and not as law enforcement officers. Therefore, resisting arrest laws often do not apply to attempted arrests by security guards.

The result may be different 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 opposite conclusion.

How Much Resistance Must the Prosecutor Prove?

State laws also vary as to the kinds of acts and threats that will constitute felony resisting arrest. Physical violence is enough, while a simple refusal to talk is not enough. Non-threatening statements of disagreement with the officer's actions usually are not enough. However, loud, threatening, and extended arguments can be enough.

Defenses to a Charge of Resisting Arrest

Defendants charged with resisting arrest sometimes offer one or more of the following defenses. The requirements to prove these defenses vary by state.

Self-Defense

Police officers are entitled to use the amount of force necessary to accomplish the arrest. But if the arresting officer acts violently and is not justified in doing so, the arrestee may protect himself and resist the arrest. For example, if a law enforcement officer unjustifiably attempts to shoot the arrestee, the arrestee may fight back. The person being arrested cannot act violently toward the arresting officer unless the officer acted violently first.

Importantly, the arrestee must exercise self-restraint, using only the force reasonably necessary under the circumstances to resist the arrest. For instance, if the arrestee subdues a police officer who has acted unreasonably, the arrestee cannot then harm the officer further.

Unlawful Arrest

An unlawful arrest is an arrest that is not authorized by law, such as an arrest without a warrant or probable cause. In some states, a person may resist an unlawful arrest but only with reasonable force. Reasonable force is generally considered to be only the amount of force necessary to resist the arrest.

In other states, statutes and court rulings have changed this rule to require a person to submit to the unlawful arrest, as long as the law enforcement officer is performing the lawful duties of the officer's job.

For much more on this topic, including the risks of resisting arrest, see Resisting Unlawful Arrest.

Penalties

The penalties for resisting arrest depend on the state law but generally include the following:

• Incarceration. A felony conviction typically carries 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 incarceration.
• Fines. Courts can also impose fines to penalize defendants. Fines vary depending on the offense and circumstances and can range from a few hundred to several thousand dollars.
• Probation. A judge may allow a person to serve part of the sentence in the community, rather than jail or prison. A person on probation regularly meets with a probation officer and fulfills other terms and conditions, such as maintaining employment and attending counseling. If the person violates probation, the judge may order the person to serve time in jail or prison.

Talk to a Lawyer

If you are facing a charge of resisting arrest, consult with an experienced criminal defense attorney who practices in your area. A lawyer can evaluate the strength of the prosecution's case against you and help develop any defenses you might have. For example, if you believe that your resistance was justified because the arrest was unlawful, you'll need to know whether your state recognizes this defense, as explained above.

A lawyer's skillful negotiation with the prosecutor can sometimes result in a reduction of felony resisting arrest charges to misdemeanor charges, or even dismissal of the charges. A local criminal defense attorney, who knows how the prosecutors and judges involved in your case typically handle such cases, can assist with these negotiations. And if you decide to go to trial, having a good lawyer in your corner will be essential.