Resisting Arrest

In protests today, such passive resistance straddles the line between protected speech or expression under the First Amendment and resisting arrest, a misdemeanor crime.

More often than not, resisting arrest cases occur when police attempt to make an arrest and the suspect fights back or attempts to break free. From a public safety standpoint, the government takes the view that resisting arrest increases the risk of physical harm for the offender, law enforcement, and anyone else nearby. Critics of such laws see the offense as a "catch-all" crime that police use against people who do not cooperate with them. Yet, every criminal offense must have specific elements that provide the public with notice of what conduct is criminal and what is not.

This article takes a closer look at when a person might face charges of resisting arrest and possible defenses to the charge. It also addresses penalties and controversies surrounding the charge.

Elements of the Crime of Resisting Arrest

Resisting arrest generally involves charges against a person who obstructs, resists, or delays law enforcement during the performance of their official duties. The crime of resisting arrest often includes these elements:

• An intent to hinder, delay, or prevent a law enforcement officer from making a lawful arrest or detention
• Refusing to stop at a request or signal of law enforcement
• Using physical force against a law enforcement officer
• Creating a substantial risk of bodily injury to a law enforcement officer

Some state laws prohibit any action that impedes an officer in their lawful duties (though in other states this is charged as hindering or obstructing justice). In such states, a resisting arrest charge may be filed against someone without any prior attempt to place them under arrest. In many other states, the basis of a resisting arrest case must show that a lawful arrest was in progress.

In most states, resisting arrest is a misdemeanor crime. Yet, certain conduct will elevate the offense to a felony or lead to other felony charges. For example, if the suspect assaults an arresting officer while refusing to submit to arrest, they may face felony resisting arrest charges. The police may also charge them for a felony assault on a peace officer. Also, if the suspect leads police on a dangerous high-speed chase, this may result in additional felony charges like fleeing from the police.

In California, the resisting arrest offense extends beyond police officers to emergency medical technicians (EMTs). California Penal Code section 148 outlaws the crime of resisting arrest for every person who willfully resists, delays, or obstructs any public officer, peace officer, or EMT in the discharge or attempted discharge of their duties. Resisting arrest is a misdemeanor offense for which a court can sentence an offender to up to one year in county jail, a $1,000 fine, or both.

California law mandates a jail or prison sentence under circumstances where the suspect attempts to take a weapon off of the law enforcement officer. The law also provides an exemption for those who photograph or make a video or audio recording of an officer making an arrest. This applies as long as the officer is in a public place or the person making the recording is in a place they have a right to be. 

In other words, the person recording the police conduct does not violate the law in such situations. Further, the police cannot use the act of recording as probable cause to detain or arrest the person recording the incident.

Resisting arrest law in other states may vary to some extent. In Ohio, for example, the mens rea or intent for the crime is recklessness. Ohio law defines resisting arrest as follows: No person recklessly, or by force, shall resist or interfere with a lawful arrest of the person or another.

The basic offense is a second-degree misdemeanor. The offender can face up to 90 days in jail, a fine of $750, or both. If the offender causes physical injury or harm to a law enforcement officer while resisting, then the offense becomes a first-degree misdemeanor and the potential jail time and fine will increase. If the offender causes harm to an officer by means of a deadly weapon or brandishes a deadly weapon during the incident, this can lead to a felony resisting arrest charge. The offender will face the possibility of time in state prison.

Related Offenses

There may be other actions that either qualify for resisting arrest or another related crime, depending on state law. Most often, resisting arrest involves the suspect physically struggling with the officer. Yet, related conduct can include:

• Threatening violence against an officer, which may lead to arrest for disorderly conduct
• Running away or hiding from police, which may lead to arrest for fleeing, evading, or obstruction of justice
• Physically getting in the way of an officer doing their duty, which may lead to arrest for obstructing official business

State laws may vary according to elements, degree, and penalty. Some states may require the use of force or actual harm to have occurred against the officer.

Penalties and Punishment for Resisting Arrest

To obtain a resisting arrest conviction, the prosecution must prove all elements of the crime beyond a reasonable doubt. Key elements in most laws include:

• The defendant was aware or should have reasonably known that the person they were resisting was a law enforcement officer
• The officer was performing their official duties in a lawful manner
• The defendant's intent was purposeful, knowing, or reckless

The possible penalties will appear in the state penal code. Penalties for a misdemeanor charge can range from probation and fines to county jail time. A felony conviction for resisting arrest change can likewise include probation and fines to time in state prison. The court will often review an offender's criminal record prior to determining the sentence. A history of prior offenses related to resisting arrest may lead to jail time or prison.

Possible Defenses To Resisting Arrest​

There are several possible defenses against a criminal charge of resisting arrest, including:

• Evidence to the Contrary: Physical evidence that the suspect did not resist arrest, such as live testimony, video evidence, the police bodycam, or photographs, could exonerate a defendant.
• Self-Defense: It may be possible to argue that a suspect was acting in self-defense after the officer used excessive force. Excessive force amounts to something beyond the reasonable force needed for the officer to make the arrest.
• Unlawful Arrest: In some states, a suspect can claim that an arrest was unlawful or based on false information. The defendant may argue that their resistance or fleeing occurred after an officer acted illegally to arrest or detain them. This defense may not apply if the defendant used physical force or created a risk of bodily injury.
• Mistaken Identity: In some states, a defendant can assert that they had a reasonable belief that the police officer was not actually affiliated with law enforcement. This may occur when the officer is in plain clothes or is "off-duty" when the arrest occurs.

Controversy With Resisting Arrest Charges​

Critics of the resisting arrest charge question police use of the offense in certain circumstances. Normally, the offense does not occur in a vacuum. The police charge an underlying offense. If the evidence of the underlying offense appears to be weak, then the resisting arrest charge may receive greater scrutiny by prosecutors, defense attorneys, and the court.

In resisting arrest cases, police often use physical force to effectuate the arrest. This may lead to civil lawsuits against the local city, town, or county that employs the officer. In light of potential claims of "excessive force" by officers, internal procedures may require the officer to complete a "use of force" report that their supervisors may review for quality control and disciplinary purposes. Civil rights advocates often look for patterns in police "use of force" reports to document any disparate impact on minority populations.

Charged With Resisting Arrest? A Criminal Defense Lawyer Can Help​

There can be a fine line between guilt and innocence with a charge of resisting arrest. If you or someone you know is facing criminal charges, they should consider getting legal advice before a plea or trial. An experienced criminal defense attorney in your area may provide possible defenses and can also negotiate a fair resolution to the case.