WHAT IS RESISTING ARREST?

What is Resisting Arrest?

In Massachusetts, under M.G.L. c. 268, §32B, a person can be convicted of Resisting Arrest. Resisting Arrest means knowingly preventing or attempting to prevent a police officer from making an arrest by using or threatening to use physical force or violence.

What does the law say on resisting arrest?

According to Commonwealth law:

“A person commits the crime of resisting arrest if he [or she] knowingly prevents or attempts to prevent a police officer, acting under color of his [or her] official authority, from effecting an arrest of [himself or herself] or another [either] by using or threatening to use physical force or violence against the police officer or another; or [by] using or threatening to use physical force or violence against the police officer or another; or [by] using any other means which creates a substantial risk of causing bodily injury to such police officer or another.”

In other words, a defendant is resisting arrest if he or she knowingly EITHER:

  • Prevents a police officer acting under his or her official authority from making an arrest of the defendant
  • Attempts to prevent a police officer acting under his or her official authority from making an arrest of the defendant

…by EITHER:

  • Using or threatening to use physical force or violence against the police officer or another person
  • Using any other means which creates a substantial risk of causing bodily injury to the police officer or another

What does the government need to show to prove someone resisted arrest?

In order to prove a defendant GUILTY of the offense of resisting arrest, the Commonwealth must prove ALL of the following four beyond a reasonable doubt:

  1. That the defendant:
  • Prevented a police officer from making an arrest
  • Attempted to prevent a police officer from making an arrest

…of the defendant or of another person.

2. That the officer was acting under color of his or her official authority at the time

3. That the defendant resisted:

  • By using, or threatening to use, physical force or violence against the police officer or another person
  • By using some other means which created a substantial risk of causing bodily injury
  • That the defendant resisted knowingly—that is, the defendant knew at the time that he or she was acting to prevent an arrest by a police officer acting under color of his or her official authority

If the Commonwealth fails to prove ANY element of the offense beyond a reasonable doubt, the defendant is NOT GUILTY.

With the fourth part, a police officer’s words or actions communicating his or her intention to make an arrest before or during pursuit is enough evidence to reasonably conclude that the defendant resisted “knowingly”.

What does it mean for a police officer to be acting “under color of official authority?”

A police officer legally acts “under color of official authority” when he or she makes a judgment in good faith.

How do we know that the person making the arrest was actually a police officer?

In order to convict a defendant of the crime of resisting arrest, the Commonwealth must prove beyond a reasonable doubt that the defendant knew that the person seeking to make the arrest was indeed a police officer.

The Commonwealth may prove this by proving:

  • That the officer was in uniform
  • That (if NOT in uniform) the officer identified himself or herself

…while attempting to make the arrest

Note that police credentials includes such things as:

  • A badge
  • Insignia (i.e. a distinguishing mark of police rank)
  • An identification card
  • A police radio
  • Other police equipment (e.g. a clearly identified police vehicle)

Also, even if the officer is out of uniform, if he or she verbally identified himself or herself, in addition to visibly displaying a police credential, a defendant could still be charged with resisting arrest if he or she engages in the act in this scenario.

When does a police officer complete an arrest?

It is the burden of the Commonwealth to prove beyond a reasonable doubt that the defendant resisted after the arrest.

A police officer “legally” completes an arrest when ALL of the following occurs:

  • Police detain a person
  • Officers place a person securely in custody
  • A person is under the control of the police

What if a police officer uses unreasonable or excessive force when they make an arrest?

A police office may NOT use unreasonable or excessive force in making an arrest. A person may use reasonable force to protect himself or herself from harm when unreasonable or excessive force is present.

If a police officer uses unreasonable or excessive force to make an arrest, the person who is being arrested may defend himself or herself with as much force as reasonably appears to be necessary. However, remember that the person arrested is required to stop resisting once he or she knows or should know that if he or she stops resisting, the officer will also stop using unreasonable or excessive force.

How do we know someone did NOT act in self-defense in resisting arrest?

It is the burden of the Commonwealth to prove beyond a reasonable doubt that the defendant did NOT act in self-defense in resisting arrest.

In order to prove that a defendant did NOT act in self-defense in resisting arrest, the Commonwealth must prove AT LEAST ONE of the following three items beyond a reasonable doubt:

  • That the defendant did NOT reasonably believe BOTH that the police officer was:
  • Using unreasonable AND excessive force
  • Putting the defendant’s personal safety in immediate danger
  • That the defendant did NOT do everything that was reasonable in the circumstances to avoid physical combat before resorting to force
  • That the defendant used more force to defend himself or herself than was reasonably necessary in the circumstances

Is an unlawful arrest ever a defense against resisting arrest?

No, an unlawful arrest is NOT a defense to the charge of resisting arrest. As long as the officer was acting under the color of his or her official authority and using only reasonable force in attempting to make the arrest, a police officer is allowed to make an unlawful arrest.

Remember that in the case of an unlawful arrest, the person being arrested must resort to the legal system to restore his or her liberty.

How is evidence of intoxication used in proving a defendant “knowingly” resisted arrest or was “preventing” or “attempting” to prevent the arrest?

Jurors may consider whether the defendant was intoxicated in determining whether the Commonwealth has proved beyond a reasonable doubt BOTH that:

  • The defendant knows that the person is a police officer
  • He or she was preventing or attempting to prevent the officer or officers from making an arrest

Is flight (i.e. running away) to evade the police resisting arrest?

Running away to evade the police does NOT itself constitute resisting arrest.

If a defendant resists a stop or patfrisk, the defendant is NOT resisting arrest.

The only exception to this latter scenario is if a reasonable person in the defendant’s position would have understood that the attempted seizure was to make an arrest. In this case, the defendant is resisting arrest.

IF YOU OR A LOVED ONE HAVE BEEN CHARGED WITH RESISTING ARREST, AND YOU NEED AN EXPERIENCED CRIMINAL DEFENSE LAWYER WORKING ON YOUR SIDE TO PROTECT YOUR RIGHTS, PLEASE CONTACT CRIMINAL DEFENSE ATTORNEY WILLIAM J. BARABINO.

CALL 781-393-5900 TO LEARN MORE ABOUT YOUR AVAILABLE DEFENSES.

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