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.

What Is Resisting Arrest?

State laws vary as to the kinds of acts and threats that will constitute resisting arrest. The act doesn't need to amount to force or violence, but some states require a physical act of some kind. Others count any type of refusal to obey orders as resisting arrest.

Violent or Physical Acts of Resisting

Acting violently or causing harm to an officer is resisting arrest and often leads to felony charges. Any physical act—such as pulling away, actively fleeing, or even going limp—will generally count as resisting as well.

Non-Physical Acts, Threats, or Refusals to Obey Orders

The tougher question pertains to non-physical acts. Threats of violence will typically satisfy the element, even if the person doesn't act on them. But what if the person disagrees with the officer—loudly or vehemently—but doesn't make threats, possess any weapons, or make any movements toward the officer, is that resisting? These cases often come down to the wording of the law and the facts of the case.

Some state laws on resisting arrest broadly include "opposing" or "impeding" an officer's duties. In these states, an arrestee who refuses a police officer's orders to turn around and put their hands on the car might be considered resisting. But, in other states, the arrestee must do more than refuse an order, such as intentionally walk away or block the officer's path. Another area where states differ involves using profanity, giving false information, or arguing in a heated manner with an officer. Whether or not these acts are crimes in your state, it's generally better to argue your point in the courtroom, not on the street.

What Does the Prosecutor Need to Prove in a Resisting Arrest Case?

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 element beyond a reasonable doubt.

Elements of Resisting Arrest

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

• The defendant intentionally resisted or obstructed a law enforcement officer (see above). This element requires that the defendant intentionally acted in a way to impede, hinder, or delay the arrest. However, the person need not have intended the result or harm that his actions caused.
• The defendant knew or should have known they were resisting a "law enforcement officer." The definition of "law enforcement officer" can be broader than police and deputies (see below).
• The law enforcement officer was lawfully discharging their 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 Is a Law Enforcement Officer?

State laws vary when it comes to defining "law enforcement officers" for resisting arrest purposes. 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.

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. Again, for a person's safety, the best place to argue the legality of the arrest is in the courtroom and not the streets.

What Are the Penalties for Resisting Arrest?

The penalties for resisting arrest often depend on the severity of the actions taken by the defendant.

Misdemeanor Resisting Arrest

In some states, resisting crimes are misdemeanors. These states may have separate crimes with harsher penalties for acts that amount to fleeing in a vehicle, assault, or disarming a police officer.

Other states impose misdemeanor penalties only when the resistance doesn't involve threats or harm to the officer, and everything other act of resisting is a felony. For instance, a person who flees on foot might receive a misdemeanor conviction. Other examples include refusing an officer's orders, pulling away from an officer's grip, blocking an officer from trying to arrest someone else, or refusing to accept a citation.

In many states, a person convicted of a misdemeanor faces up to a year in jail, plus fines.

Felony Resisting Arrest

Felony resisting arrest usually requires that a person either act or threaten to act violently toward the arresting officer. Fleeing in a vehicle may also be a felony for resisting arrest.

The penalties for resisting arrest depend on the state law, but some impose a range of felony penalties based on the level or risk of harm involved. For instance, threatening or shoving an officer but causing no harm may be a low-level felony that carries the possibility of a few years in prison. But fleeing in a vehicle, punching an officer, or physically struggling with an officer could result in much stiffer penalties, such as up to 5 or 10 years in prison. The person may also face charges for assault or battery of a police officer.

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.