Resisting Arrest in Massachusetts (G.L. c. 268, § 32B): Elements, Penalties, and Defenses

Resisting arrest is a crime in Massachusetts under G.L. c. 268, § 32B. The charge covers two kinds of conduct: using or threatening force against an officer, or doing something that creates a substantial risk of bodily injury. Simply pulling away or running off is not always enough. District Court Instruction 7.460 sets out what the Commonwealth must prove beyond a reasonable doubt, including the rule that an unlawful arrest is not a defense and the right to defend yourself against excessive force.

What the Commonwealth Must Prove

Under Instruction 7.460, the Commonwealth must prove three things beyond a reasonable doubt:

1. Prevented or attempted to prevent an arrest. You prevented, or tried to prevent, a police officer from arresting you or another person.
2. Knowingly. You knew the person was a police officer, and a reasonable person in your circumstances would have understood that an arrest was being made.
3. Color of official authority. The officer was acting under color of official authority. That means that, in the regular course of assigned duties, the officer made a good-faith judgment based on the facts and circumstances that an arrest should be made.

If the Commonwealth fails to prove any one of these, the verdict must be not guilty.

The Two Ways to Resist

For the first element, the Commonwealth must show that you resisted in one of two ways:

• Force or violence: using or threatening to use physical force or violence against the officer or another person; or
• Other risky means: using some other means that created a substantial risk of causing bodily injury to the officer or another person.

Mere flight, without a substantial risk of bodily injury to the officer, is not enough. Whether the circumstances of a flight created that risk is a question for the jury. The resistance must also happen before the arrest is complete. An arrest is complete when a person has been detained, placed securely in custody, and is under police control.

Knowing It Was an Arrest by a Police Officer

A stop for questioning or a pat-frisk is not an arrest. Running from a stop is not resisting arrest unless a reasonable person would have understood that the officer was trying to make an arrest. On the officer's identity, the statute defines "police officer" as an officer in uniform or, if out of uniform, one who showed police credentials while attempting the arrest. Credentials can include a badge, insignia, identification card, police radio, or a clearly marked police vehicle. The jury may also consider evidence of intoxication in deciding whether you knew these things.

Does the Arrest Have to Be Lawful?

No. Under § 32B(b), it is not a defense that the arrest was unlawful, as long as the officer was acting under color of official authority and used only reasonable force. The challenge to an unlawful arrest belongs in court, not on the street.

Self-Defense Against Excessive Force

A police officer may not use unreasonable or excessive force to make an arrest. If an officer does, the person being arrested may use as much force as reasonably appears necessary to protect themselves. But that person must stop resisting once they know, or should know, that the officer will also stop using excessive force if they stop.

If there is some evidence of excessive force, the Commonwealth must prove beyond a reasonable doubt that you did not act in self-defense. It must prove at least one of these four things:

1. the officer did not use excessive or unnecessary force;
2. you did not reasonably believe the officer was using unreasonable and excessive force that put your safety in immediate danger;
3. you did not do everything reasonable to avoid physical combat before using force; or
4. you used more force than was reasonably necessary.

Penalties

Resisting arrest is a misdemeanor. Under § 32B(d), the maximum penalty is imprisonment in a jail or house of correction for not more than 2½ years, a fine of not more than $500, or both. A conviction leaves a criminal record that can affect work, housing, and licensing.

Defenses

• No force and no substantial risk: the conduct was passive, or it was flight that created no substantial risk of injury.
• No arrest yet, or arrest already complete: the encounter was only a stop or pat-frisk, or the conduct came after the arrest was complete.
• No knowledge: a reasonable person would not have understood it was an arrest, or you did not know the person was a police officer.
• Not under color of authority: the officer was not acting in good faith within assigned duties.
• Self-defense: the officer used excessive force, and your response was reasonable.

Why a Lawyer Matters

Resisting arrest charges often hinge on a few seconds of conduct, frequently captured on body-camera or cruiser video. What the officer said, when the arrest actually happened, and how much force each side used can decide the case. I have defended criminal cases for 23 years. If you have been charged with resisting arrest, call 781-393-5900.

Related Charges

• Assault and battery on a police officer (G.L. c. 265, § 13D): often charged alongside resisting arrest.
• Disorderly conduct (G.L. c. 272, § 53): a frequent companion charge from the same incident.
• Self-defense: how the defense works, including against excessive force.
• Defense of another: using force to protect someone else.

Disclaimer

This information is for general educational purposes only and not legal advice. Laws change. For advice about a specific case, speak with a licensed Massachusetts attorney.