RESISTING ARREST

RESISTING ARREST

 This post will answer the following legal questions on the offense of resisting arrest:

  • What does Commonwealth law say on “resisting arrest”?
  • How does the Commonwealth prove a defendant guilty of the offense of resisting arrest?
  • What does it mean for a police officer to be acting “under color of official authority”?
  • How does the Commonwealth prove that a defendant knew that the person seeking to make the arrest was indeed a “police officer”?
  • Legally speaking, when does a police officer “complete” an arrest?
  • What actions can a defendant take if a police officer uses unreasonable or excessive force in making an arrest?
  • How does the Commonwealth prove a defendant did NOT act in self-defense in resisting arrest?
  • Is an unlawful arrest ever a defense against resisting arrest?
  • How is evidence of a defendant’s intoxication used in proving a defendant “knowingly” resisted arrest or was “preventing” or “attempting” to prevent the arrest?
  • Is flight (i.e. running away) to evade the police considered resisting arrest?

 What does Commonwealth 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 legally considered to be resisting arrest if he or she knowingly EITHER (ONE OR BOTH):

  • 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 (ONE OR BOTH):

  • 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

How does the Commonwealth prove a defendant guilty of the offense of resisting arrest?

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

  1. That the defendant (ONE OR BOTH):
  • 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 (ONE OR MORE):

  • 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 to the police officer or another person
  • 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 must be found NOT GUILTY.

Note with the fourth element that 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, in the regular course of assigned duties he or she makes a judgment in good faith, based on the surrounding facts and circumstances, that he or she should make an arrest.

How does the Commonwealth prove that a defendant knew that the person seeking to make the arrest was indeed 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 (ONE OR BOTH):

  • That the officer was in uniform
  • That (if NOT in uniform) the officer identified himself or herself by exhibiting his or her credentials as a police officer

…while attempting to make the arrest

Note that police credentials includes such things as (ONE OR MORE):

  • 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 note that 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.

Legally speaking, when does a police officer “complete” an arrest?

It is the burden of the Commonwealth to prove beyond a reasonable doubt that the defendant’s resistance occurred BEFORE the arrest was completed.

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

  • A person has been detained
  • A person has been placed securely in custody
  • A person is under the control of the police

Note that the defendant’s conduct after the police officer has completed the arrest has no bearing on prosecutions based on a continuing course of conduct related to the offense of resisting arrest. Therefore, the jury is allowed to hear about a defendant’s continued lashing out after arrest in an uninterrupted “single chain of events” rather than as subsequent and distinct acts.

What actions can a defendant take if a police officer uses unreasonable or excessive force in making an arrest?

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

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 does the Commonwealth prove a defendant 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 (ONE OR MORE):

  • 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 a defendant’s 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 (ALL):

  • The defendant knew that the person or persons with whom he or she was engaged was or were a police officer or police officers acting under the color of his or her or their authority
  • 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 considered resisting arrest?

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

Additionally, if a defendant was chased for a stop or patfrisk, the defendant is NOT legally considered to be 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 legally considered to be 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.

 

Source: Instruction 7.460

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