Resisting Unlawful Arrest

In some states you can legally resist unlawful arrest with reasonable force. In others you can’t.

Historically, American citizens were legally entitled to use reasonable force to resist unlawful arrest. Some states continue to follow this rule, while others don’t.

A statute rejecting the traditional rule might say something like this: “You can’t use force to resist if you know or should know that you’re being arrested by a police officer, regardless of whether the arrest is legal.”

(See here for an overview of resisting arrest. For a discussion of resistance when police use unreasonable force in the course of an arrest—a topic beyond the scope of this article—look here.)

RESISTING THE URGE
Of course, even where resisting unlawful arrest (with or without some degree of force) is legal, most would tell you it isn’t a good idea. Just about anyone working in the criminal justice system—including criminal defense lawyers—would recommend that someone being unlawfully arrested through use of reasonable force not resist. For one, as discussed below, the arrest might be lawful even if the arrestee is innocent. For another, circumstances can quickly unravel to the point that the arrestee is seriously injured or earns additional criminal charges.

The Traditional Rule: Reasonable Force Okay
A 2012 Georgia case illustrates the traditional rule that it’s sometimes okay to resist arrest with force. An officer had been investigating the firing of shots in or around an apartment building. Outside, he saw a young man wearing a hoodie heading for the building. The officer approached and expressed his desire to speak with the youth, who in turn muttered and kept right on his way. The officer quickened his approach; the youngster began to run toward the building. The young man ran up the stairs and eventually tripped. The officer pounced on and “arm-barred” him in order to apply handcuffs. The arrestee struggled to escape, “kicking his legs about and throwing his elbows back and forth.”

Georgia’s Court of Appeals focused on that fact that the struggle between officer and suspect occurred after the attempted arrest. To the court, the arrest for supposed obstruction had no basis. Because that arrest was unlawful, the young man “was justified in resisting the attempted arrest with all force that was reasonably necessary to do so.” (Ewumi v. State, 315 Ga. App. 656 (2012).)

Innocent—Until You Resisted
It’s critical to note that one can be convicted of resisting arrest even without having committed the crime that was the basis for the arrest.

For example, in New York it’s a misdemeanor to intentionally prevent a police officer “from effecting an authorized arrest.” (N.Y. Penal Law § 205.30.) In that state, an arrest is “authorized” if the police have probable cause to believe that the suspect has broken the law, even if the suspect actually hasn’t. So, whether or not a suspect has broken the law, if the police had probable cause to arrest him and he resisted, he’s guilty of a crime. (People v. Laltoo, 801 N.Y.S.2d 591 (2005).)

On the other hand, consider the New York case of young man who fled the police. An officer received word of a burglary in progress; he arrived on scene to notice the young man and two others near a parked car. The officer and his partner approached the men and asked them what was going on; the young man ran away. The cops eventually caught and arrested him. An appeals court noted that the officers didn’t have a description of the burglary suspects or even know where, exactly, the crime occurred. They didn’t even know whether the tip about the burglary was reliable. The defendant wasn’t doing anything other than standing on the street. The court found that the officers had no basis for chasing the young man, meaning he couldn’t be guilty of resisting arrest. (In re Manuel D., 796 N.Y.S.2d 345 (2005).)

A Florida court issued a similar ruling in the case of a juvenile who loudly (and with choice language) protested police actions at an apartment complex. The police commanded him to leave the complex, where a rowdy crowd had gathered. The charge was that he resisted arrest by refusing the command. The court held that the youngster was justified in nonviolently resisting because the police didn’t have probable cause to arrest him. (J.G.D. v. State, 724 So. 2d 711 (Fla. Dist. Ct. App. 1999).)

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, 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.

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.

Resisting Arrest When Police Use Excessive Force
In most states, arrestees can resist arrest only in limited circumstances.
By Michael Tarleton

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It’s rare that someone being placed under arrest has the right to forcefully resist. But in most states, if the arresting officer uses excessive force that could cause “great bodily harm,” the arrestee has the right to defend him or herself. That’s because most states hold that an officer’s use of excessive force amounts to assault or battery, which a victim has a right to defend against. (To learn about other scenarios in which defendants may be entitled to resist, see Resisting Arrest: Laws, Penalties, and Defense and Resisting Unlawful Arrest. Also see Battery Against a Police Officer.)

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Excessive Force
An officer’s use of force is “excessive” if it is likely to result in unjustifiable great bodily harm (serious injury). Most states consider whether a “reasonable person” under the circumstances would have believed that the officer’s use of force was likely to cause great physical harm (including death). If the answer is “yes”—if a reasonable person would have felt it necessary to resist in self-defense, and if that person used a reasonable degree of force when resisting, then the resistance is typically justified. But this is a very high standard to meet, such that courts hardly ever find that an arrestee’s forceful resistance was defensible.

How Much Force?
On the rare occasion that a court finds that an arrestee was entitled to resist excessive force, the determination shifts to whether the amount of force he or she used was appropriate. Although the precise rules vary by state, in general, the amount of force used to resist arrest must be proportional to the amount of excess force used by the arresting officer.

Exceptions to a Narrow Rule
The circumstances under which a person is justified in resisting excessively forceful arrest are rare, even rarer due to some important exceptions. States created these exceptions to discourage people from fighting with police. These exceptions include:

Abatement. If the officer stops using excessive force, then the arrestee must stop resisting.
Resistance that prolongs excessive force. If the person being arrested has reason to believe that, if he stops resisting, the officer will stop using excessive force, then he must stop resisting.
Resistance that causes excessive force. If the person being arrested did something to cause the officer to use excessive force in the first place, then she isn’t justified in resisting the arrest.

To illustrate how tricky the resistance issue can be, suppose that an officer pulls Jesse over for reckless driving. The officer gets out of his patrol car and orders Jesse to exit the vehicle and put his hands in the air. Jesse complies. The officer then tackles Jesse to the ground and repeatedly slams his head into the pavement. Under these circumstances, it would probably be reasonable for Jesse to resist the arrest—in some states, he may even be justified in using deadly force because of the threat to his life.

But if Jesse, rather than following the officer’s instructions, had charged at him, the analysis would be different. In that instance, he arguably provoked the officer’s violent response, in which case he wasn’t justified in resisting the unreasonably forceful arrest—he “caused” the officer’s use of force. However, if the officer had subdued Jesse but nevertheless continued to strike his head in the pavement, then Jesse may have been within his rights to resist.

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