Gavin Howe
The topic of resisting arrest is a complex and contentious issue, with laws varying across different jurisdictions. In the United States, the Constitution provides that a citizen may resist an unlawful arrest, but the legality of doing so depends on the specific state laws. While some states still permit the resistance of unlawful arrests, many have passed statutes limiting this right, making it a crime to resist even an unlawful arrest. The act of resisting arrest can take many forms, from verbal objections to physical force, with the latter often resulting in felony charges. The use of force by individuals during an arrest is a highly debated topic, with some arguing for the right to self-defense against excessive police force, while others emphasize the dangers and potential legal consequences of resisting arrest.
| Characteristics | Values |
|---|---|
| Jurisdiction | The laws regarding unlawful arrests and resisting arrest differ from state to state. |
| Law enforcement officers | The definition of "law enforcement officer" varies by state. It may include police officers, sheriffs, prison guards, probation supervisors, park rangers, and correctional officers. |
| Probable cause | An officer needs probable cause to make an arrest. If probable cause is absent, the defendant cannot be convicted of resisting arrest. |
| Excessive force | If an officer uses excessive force in an arrest, citizens may have a right to self-defense and can use reasonable and necessary force to protect themselves. |
| Physical force | The use of physical force to resist arrest may constitute resisting arrest and can lead to felony charges. |
| Verbal objection | Verbal objection to an arrest or police orders may not support a conviction for resisting arrest as this behavior is non-physical. |
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What You'll Learn
The definition of a law enforcement officer
A law enforcement officer's primary responsibility is to protect lives and property. All their tasks relate back to this one responsibility. There are various types of law enforcement officers, and their duties differ based on their type and the organization they work for. In almost all situations, law enforcement officers are expected to fulfill their responsibilities whether on or off duty.
General law enforcement officers are the most common type of law enforcement officer. They are usually uniformed personnel who carry out patrols, answer calls for service or help, direct traffic, investigate crimes, and give first aid. They are also increasingly focused on community policing, where they build relationships with citizens in local neighborhoods and enlist their help in fighting crime.
Detectives are another type of law enforcement officer. They do not usually wear uniforms and are responsible for investigating criminal cases by gathering facts and collecting evidence. Most detectives specialize in a specific crime type, such as narcotics, grand theft, or homicide.
State police officers, sometimes called state troopers or highway patrol officers, have jurisdiction throughout the state. They focus on motor vehicle safety, enforcing traffic laws and regulations, and assisting at accident scenes.
Federal law enforcement agencies, such as the Federal Bureau of Investigation (FBI), the Drug Enforcement Administration (DEA), and the U.S. Secret Service, have different responsibilities and requirements. FBI agents, for example, are responsible for investigating violations of federal statutes, conducting sensitive national security investigations, and addressing issues like organized crime, public corruption, and civil rights violations.
Other types of law enforcement officers include U.S. Marshals and Deputy Marshals, who conduct judicial security, fugitive investigations, witness security, prisoner services, and other special operations.
It is important to note that the term "peace officer" is sometimes used interchangeably with "law enforcement officer" or "police officer." However, in some jurisdictions, it is a separate legal designation with quasi-police powers.
In summary, a law enforcement officer is responsible for protecting lives and property, and their specific duties vary depending on their type and organization. They are expected to fulfill these duties both on and off duty, and their tasks may include patrols, investigations, community engagement, and more.
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What constitutes resisting arrest
Resisting arrest occurs when an individual interferes with a law enforcement officer's attempt to perform a lawful arrest. The crime can be a felony or a misdemeanour, depending on the severity of the actions of the person being arrested. State laws vary on the kinds of acts and threats that constitute resisting arrest.
Some states count any refusal to obey orders as resisting arrest. Others require a threat or physical act of some kind. Even in these states, the simple act of pulling back your arms or slamming a door in an officer's face can be considered resisting arrest. 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. However, in other states, the arrestee must do more than refuse an order, such as intentionally walk away or block the officer's path.
Resisting arrest is typically defined as an individual using any amount of physical force to prevent a law enforcement officer from arresting, handcuffing, and/or taking the individual to jail. Even a small amount of force may be enough to constitute resisting arrest. 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.
To secure a conviction for resisting arrest, the prosecutor must produce evidence on the following issues, called the "elements" of the offense. The judge or jury must decide that the prosecutor has proved each element beyond a reasonable doubt. Usually, all of the following must be true for resisting arrest:
- The defendant intentionally resisted or obstructed a law enforcement officer.
- The defendant intentionally acted in a way to impede, hinder, or delay the arrest.
- The defendant knew or should have known they were resisting a "law enforcement officer."
- The law enforcement officer was lawfully discharging their official duties.
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The legality of resisting unlawful arrest
Historically, the general rule was that resisting an unlawful arrest was not considered a crime. This right to resist unlawful arrest was recognised in English common law and later in American courts. However, over time, many states have passed statutes limiting an individual's ability to resist arrest, even if it is unlawful. As a result, while it may be legal to resist an unlawful arrest in some jurisdictions, it is essential to understand the specific laws of your state.
The definition of "resisting arrest" also varies across states. In some states, any refusal to obey orders or non-cooperation is considered resisting arrest. In other states, a physical act or threat is required for it to be classified as resisting arrest. Even a small amount of force, such as pulling away or slamming a door, can be considered resisting arrest. It is important to note that resisting arrest can be charged as a separate crime, resulting in additional fines and potential jail time.
If you believe you have been unlawfully arrested and wish to resist, it is crucial to understand the potential risks and consequences. Resisting arrest can escalate the situation, leading to serious injuries or even death. Additionally, if the use of force is involved, you could face felony charges for assaulting a law enforcement officer. Therefore, it is generally advised to comply with the arrest and seek legal representation to contest the legality of the arrest in court.
In certain exceptional circumstances, an individual may be justified in using reasonable and necessary force to resist an unlawful arrest. This typically arises when the arresting officer uses excessive force, creating a risk of serious and unjustifiable bodily harm. In such cases, an individual may have a right to self-defence, allowing them to use proportionate force to resist. However, it is important to note that the use of force must be limited to what is necessary to protect oneself, and the right to self-defence may not apply if the officer's use of force is a result of the individual's actions.
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Self-defence and the use of force
The use of force in self-defence during an arrest is a highly complex and controversial topic. While the United States Constitution provides that a citizen may resist an unlawful arrest, the laws and their interpretations vary from state to state. The general rule is that resisting arrest involves an individual interfering with law enforcement's attempt to perform a lawful arrest, often by using physical force. This can be as minimal as pulling back one's arms or slamming a door in an officer's face, and it may result in misdemeanour charges.
The right to self-defence in the context of an arrest is similar to general self-defence laws. In most states, if an officer uses excessive force that could lead to serious bodily harm or death, arrestees have the right to defend themselves. This is because an officer's use of excessive force is often considered assault or battery, which a victim can legally defend against. However, the use of force in self-defence must be proportional and reasonable. If an individual uses more force than necessary, they can face harsh penalties for assault and battery of a police officer.
The determination of whether the use of force was appropriate depends on the specific circumstances. For example, if an individual's actions caused the officer to use excessive force, their self-defence argument may not hold up in court. Additionally, if the officer stops using excessive force, the arrestee must also stop resisting.
It is important to note that the legality of resisting an unlawful arrest has been questioned and limited over time. While the common law recognised the right to resist unlawful arrest, many states have passed statutes that restrict this right. As a result, it is generally advised to contest an unlawful arrest in the courtroom rather than on the streets.
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Contesting an arrest in court
- Understand the legal definition of resisting arrest: Resisting arrest typically involves an individual interfering with law enforcement's attempt to perform an arrest by using physical force or any act that prevents officers from carrying out their duties. Some states consider any refusal to obey orders as resisting, while others require a physical act or threat. Even pulling back your arms or slamming a door can be considered resisting in certain jurisdictions.
- Know your rights: The United States Constitution provides citizens with the right to resist an unlawful arrest. However, many states have passed statutes limiting this right. Traditionally, resisting an unlawful arrest was not considered a crime, but now, you must carefully follow the rules of your jurisdiction when contesting an arrest.
- Seek legal representation: Consult a criminal defense lawyer who can advise you on the specific laws of your state and help you build your case. They can review any procedural errors or breaches of your rights that may make certain evidence inadmissible in court. Your lawyer will also guide you through the legal process and represent you during court proceedings.
- Cooperate cautiously: While it is generally advised not to resist arrest, as it can escalate the situation and lead to charges of resisting arrest, there may be rare circumstances where resisting is your only option, such as when your life is in danger. In less urgent situations, cooperating and answering police questions may result in them deciding not to arrest you. However, be mindful that anything you say can be used against you in court, so it may be best to remain silent until you have legal representation.
- Plead "not guilty": During your arraignment (first court appearance), you will be asked to enter a plea. If you plead "not guilty," your case will proceed to a jury trial, where you will have the opportunity to present your defense and contest the charges. It is crucial to consult with your lawyer before entering any plea.
- Appeal if necessary: If you disagree with the court's decision, you have the right to file an appeal. Each jurisdiction will have its own procedures for filing an appeal, so be sure to follow the appropriate guidelines.
Remember, the legal system can be intricate, and each case is unique. Always seek qualified legal advice and representation to ensure your rights are protected throughout the process of contesting an arrest in court.
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Frequently asked questions
Resisting arrest occurs when an individual interferes with an attempt by law enforcement to perform an arrest. This can be by using any amount of physical force to prevent a law enforcement officer from arresting, handcuffing, and/or taking the individual to jail. However, some states require a physical act of some kind, while others count any refusal to obey orders as resisting arrest.
The laws regarding unlawful arrests and resisting arrest depend upon the state in which the incident occurs. While the United States Constitution provides that a citizen may resist an unlawful arrest, many states have passed statutes that limit the ability of individuals to resist arrest, even if it is deemed unlawful. Therefore, while it may be legal to resist an unlawful arrest, the rules of the jurisdiction will dictate what is permitted.
While it may be legal to resist an unlawful arrest in some jurisdictions, it is generally advised that you do not resist arrest and instead fight any charges in court. This is because you can still be convicted of resisting arrest regardless of whether you are guilty of the crime for which the officer was arresting you. You can consult a criminal defense attorney who can advise you of the laws of your state and help you file a complaint.
