Resisting arrest can be a separate criminal offense in some states, while in others, it falls under the general category of obstruction of justice. This can be charged as a felony or a misdemeanor. A conviction could mean time in jail, or even prison, plus additional fines, and there may also be a probation sentence as well as community service. This would be on top of the other potential sentences that could be faced in this time. Because this is a very serious matter to face, it is important to understand what constitutes obstruction, and the possible defenses against this charge.
To be convicted of a felony resisting arrest, there are three elements that a prosecutor has to prove, convincing either a judge or a jury beyond a reasonable doubt that the offense occurred. The specifics could be different in each state's statutes, but generally, one thing the prosecutor has to prove is that the defendant purposefully tried to get in the way of an arrest. The defendant did not even have to purposefully inflict harm, just intentionally hinder the arrest. Secondly, a prosecutor would have to prove that the defendant acted violently or threatened violence. This could be something like a defendant throwing a punch, or threatening to hit an officer with the scissors in their hand. Thirdly, the prosecution would need to establish that the law enforcement officer conducting the arrest was thoroughly following the law. A mistaken arrest could still be legal; the officer simply must have followed procedure for a traffic stop or a search, for example.
Who is considered a law enforcement officer? This will depend on a state's laws, but usually speaking, not only are police officers and sheriffs considered law enforcement, but this could further mean prison guards, probation and parole officers, park rangers, and more. If someone making an arrest is a private security officer, however, then that officer would be considered a private citizen and not a law enforcement officer. There is no charge for resisting arrest from a private officer. However, if someone who is considered a law enforcement officer also works as a private security officer when they are off-duty, then it is up to a court to decide whether resisting an arrest could apply in this case.
So how can you defend against this charge? Again, state laws will weigh in on how someone approaches this case. You may be able to defend this charge by proving self-defense though. Law enforcement officers are allowed to use force, even violence in the right situations, but if an officer commits violence illegally against an arrestee, then they have the right to defend themselves. This could look like an officer who unlawfully tries to shoot the person, and that person needs to defend him or herself. That being said, this cannot go too far and verge into aggression. Once the arrestee has acted in a way to defend him or herself, and the threat is gone, the arrestee cannot inflict anymore harm to the officer.
Then there is the issue of whether or not the law enforcement officer was acting in accordance with law concerning the arrest itself. This could mean an officer who is acting without a warrant or apart from probable cause. In some states, someone is allowed to resist an unlawful arrest, but only by putting up enough of a fight to resist the arrest, and nothing more. Some states actually require people to still submit to an unlawful arrest though.
When you need help understanding your state's laws, and when you need help to fight against any criminal charges, do not wait to contact an experienced criminal defense attorney today!
