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 violently toward the arresting officer or threaten to act violently.
In order to secure a conviction for 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 one of them beyond a reasonable doubt. While the elements of the crime may vary from state to state, usually all of the following must be true:
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 resisting arrest laws do apply to off-duty police officers working as private security guards; but other courts have found that the resisting arrest laws do not apply to these off-duty officers.
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 may be enough.
Defendants charged with resisting arrest sometimes offer one or more of the following defenses. The requirements to prove these defenses vary by state.
Police officers are entitled to use the amount of force necessary, in the circumstances, 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 himself 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.
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.
Someone convicted of felony resisting arrest can be subjected to any or all of the following penalties:
If you are facing a charge of resisting arrest, consider consulting with an experienced criminal defense attorney who regularly 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.