Resisting a lawful arrest is a crime. But what about resisting unlawful arrests? Can an innocent person or someone wrongfully stopped by police resist an unlawful arrest? States are split on this issue. Some recognize a limited right to resist an unlawful arrest, but many do not and a person can face criminal charges for resisting any arrest.
Understanding the Crime of Resisting Arrest
States that prohibit resisting any arrest—lawful or unlawful—do so because resisting carries a significant risk of harm to the arrestee, officer, and potentially innocent bystanders. Even in states that recognize a person’s right to resist an unlawful arrest, the right is limited and, absent extreme circumstances, use of force or violence generally cannot be used.
As you'll see below, resisting arrest, even an unlawful arrest, is risky—legally speaking and in terms of physical safety. In most cases, the risk of harm associated with resisting greatly outweighs the temporary loss of liberty of an unlawful arrest.
What Is Resisting Arrest?
A person who tries to prevent an officer from making an arrest is "resisting arrest." States differ on what exactly constitutes resistance, and it often comes down to the language used in the law.
Acts That Could Lead to Charges for Resisting Arrest
A statute might broadly define resistance as any opposition or obstruction of an officer’s duties or refusal to cooperate with an arrest. Other states’ laws refer to resistance as the use or threatened use of physical force to avoid arrest.
Are words enough? A person who protests their innocence—without more—won’t likely be considered to have resisted. But protesting one’s innocence in a belligerent or threatening manner likely would be resistance.
Passive resistance. States vary on whether a person who passively resists, such as by protesting and nonviolently stepping away, is resisting arrest. Some states’ laws provide that passive resistance that doesn’t create a risk of harm won’t be considered a crime, but any further action, such as jerking away from an officer, will. Other states consider any resistance—passive or active—a crime. Refusing to obey an officer's command to put up one’s arms or roll down a vehicle window would likely be considered acts of resistance in these states.
Active resistance. A physical act of any kind will generally be considered resistance. Pulling away from an officer’s grasp would be active resistance. Locking oneself in a vehicle may also be considered active resistance. In one case, a person who braced himself against a steering wheel to avoid being pulled from a vehicle was considered actively resisting arrest. And, of course, hitting, kicking, pushing, or using any physical force against an officer is active resistance.
Fleeing or evading. Some states include fleeing or evading police to be resisting arrest. This offense generally involves intentionally disobeying an officer's order to stop, which can be verbal or a signal (such as flashing lights or displaying a badge). A person can flee by foot or vehicle.
Amount of Resistance
Where states recognize a right to resist an unlawful arrest, the right is not an open invitation to use force. Some states recognize a person’s right to resist extends only to the use of reasonable and necessary force—in other terms, only as much force as is necessary given the situation and the harm at stake. For instance, an arrestee cannot resist with force when an unlawful arrest subjects the person to loss of liberty but no bodily harm. In other states, the resisting person can use force equal to the officer's use of force. Still, in others, an arrestee can never resist with physical force.
What Is a Lawful vs. Unlawful Arrest?
If a state allows resisting an unlawful arrest, how does one determine the legality of an arrest? Determining what is a lawful or unlawful arrest isn’t as clear cut as it might seem. Even arresting an innocent person can be a lawful arrest, as long as the officer had probable cause. The legality of an arrest tends to be the argument of many courtroom battles. It’s an even trickier call to make while being arrested when emotions are running high.
Consider that the person being arrested doesn’t know what information the officer is basing the arrest on. An officer lawfully arrests someone when the officer has probable cause—a reasonable and objective basis—to believe the arrestee committed a crime. An officer cannot arrest someone based on a hunch, ill will, or a gut feeling. But, if the officer can point to objective facts that led to the innocent person’s arrest, the arrest is valid.
While some situations clearly suggest the officer’s actions were unlawful, other circumstances are not as clear. A person who resists believing an arrest is unlawful could face criminal charges if it turns out the officer had probable cause.
What Are the Penalties for Resisting an Unlawful Arrest?
Some states penalize resisting arrest as a separate crime, while others punish the underlying act, such as obstructing a peace officer's duties, assaulting an officer, or fleeing an officer.
Penalties Based on the Type of Resistance
Penalties for resisting arrest are often based on the circumstances of the crime. For instance, a person could face misdemeanor penalties (jail time) for resisting without force but be subject to felony penalties (prison time) for using force or causing an officer bodily harm. Delaware, for example, provides that resisting arrest by fleeing carries a misdemeanor penalty but resisting by use of force or violence is a felony. A state that includes fleeing officers under the crime of resisting arrest may impose harsher penalties for fleeing by vehicle rather than by foot.
Penalties Based on the Underlying Criminal Act
Several states punish resisting an unlawful arrest based on the underlying offense committed against the officer, whether it’s assault, battery, disorderly conduct, obstruction, fleeing, or another crime.
As described above, most penalties may start as misdemeanors but increase as the level of harm increases. A person could face felony charges if, while resisting arrest, the person:
- physically harms the officer
- uses or brandishes a deadly weapon, or
- creates a substantial risk of harm to any person (say by fleeing in a car).
Some states punish resisting a lawful arrest harsher than resisting an unlawful arrest. In California, for instance, the state’s assault and battery statutes carry harsher penalties for acts committed against officers engaged in their lawful duties. (People v. Delahoussaye, 213 App.3d. 1 (1st Dist. 1989).)
How to Handle an Unlawful Arrest
Resisting an arrest can come with serious consequences. The ACLU advises the following measures to reduce your risk of harm during an arrest:
- Do not resist arrest, even if you believe the arrest is unfair. Follow the officers’ commands.
- Stay calm. Don’t run, resist, or obstruct the officers.... Keep your hands where the police can see them.
The safest place to contest an unlawful arrest is in the courtroom, not on the street. After the arrest, write down as much information as you can remember from the incident, take pictures of any injuries and seek medical help, and talk to an attorney.