In the United States, the crime of resisting arrest can make many people uneasy, so it’s important to understand what counts as resisting, what police can charge and the penalties involved. Whether you’re actively being arrested for another crime, on the scene of a crime or just in the general area, you need to be careful with your actions and words to ensure nothing is misconstrued. With the tensions in society today involving the police force, it’s worth taking some time to understand what seems like a nebulous crime. Your best bet, as always, is to be polite and calm.
What Counts as Resisting Arrest?
Resisting arrest can be construed as any action intended to prevent an officer from making a lawful arrest or performing other official duties in a way that creates risk on the scene. These actions can all be construed as resisting arrest:
- Running away from a scene where an officer is trying to make an arrest.
- Threatening an officer with physical violence while being arrested or on the scene of another arrest.
- Actually attacking an officer with physical violence while being arrested or on the scene.
- Requiring an officer to use physical force, such as struggling, resisting or making the officer drag or carry the individual to make the arrest.
- Giving false identification to an officer on a scene, whether verbally or using false ID or documentation.
Keep in mind that, in some states, any action that might impede an officer can be viewed as illegal and can result in charges. This includes even casual actions like talking or yelling at the officer, being a distraction on the scene, or even responding slowly to an officer’s demands. This means that an individual can be charged with resisting arrest even if she is not being arrested in the first place. This is why it’s important that people be careful at any crime scene because even trying to help may be misinterpreted as interference in the heat of the moment.
California Resisting Arrest Laws
The California resisting arrest laws, California Penal Code Sections 148(a) and 148(g), make it illegal to interfere with either a law enforcement officer or an emergency medical technician attempting to do their lawful duties, which include a variety of actions that may not necessarily be a direct arrest. This interference is defined as the action to intentionally resist, delay or obstruct these individuals from performing the actions necessary for their jobs. Resisting arrest does not necessarily require an arrest; any type of action preventing officers or medical technicians from executing their jobs can be construed as resisting arrest.
Resisting Arrest Charges
California has set out three criteria that must be met in order for a resisting arrest charge to be made:
- A police officer or Emergency Medical Technician (EMT) is lawfully performing the duties of the job.
- The individual intentionally resisted or delayed a police officer or EMT.
- The individual was aware that the officer or EMT was performing official duties.
The first requires the officer or EMT to be lawfully performing the duties of the job, which means they are making a legal arrest or performing another legal action. Use of excessive force is not legal; neither is a wrongful arrest, although that creates somewhat of a grey area.
The second requires the individual to take deliberate action to interfere. Again, intention doesn’t matter as long as the interference was intentional. The third requires the individual to recognize that the subject is likely a law enforcement officer or EMT and not to be interfered with as long as they’re performing the actions of their specific jobs.
Examples of Resisting Arrest
To understand how these three requirements interact, consider some examples:
- A plain-clothes cop attempts to get access to a crime scene and is held back by an individual. In this case, until the individual is aware that this is a police officer, they are not in violation of the law.
- An individual being placed under arrest by officers goes limp, forcing the officers to carry him out to their vehicle. Because this individual was aware that these were officers going about their official duties and he intentionally went limp, he is in violation of the law.
- An individual passes out during arrest, forcing officers to carry her to the vehicle. If she lost consciousness for a medical reason, such as alcohol, drugs or medication, she is not actively resisting arrest and would not be in violation of the law.
- An individual tries to delay or obstruct an EMT’s access to the scene of an injury. Even though this has nothing to do with an arrest, the individual can still be charged with an obstruction, because he is interfering with the EMT’s official duties.
Thus, in California, the key components of a resisting arrest charge are: the individual was aware of the officer’s intent and deliberately interfered. Remember this is a crime no matter the intentions of the individual; attempts to help that end up interfering with the officer or the EMT’s legal duties are still considered an obstruction.
Penalties for Resisting Arrest
Nationally, the penalties for resisting arrest will vary whether the individual is charged with a misdemeanor or a felony. A misdemeanor charge can lead to jail time up to one year, fines ranging up to $4,000 and informal probation ensuring the individual does not commit the same crime over the next three to five years. A felony charge assigns additional jail time, fines up to $10,000 and formal probation. The punishments vary by state.
In California, resisting arrest is a misdemeanor that can lead to up to a year in jail time and up to $1,000 in fines. Court costs may also be required. The judge can also assign additional conditions, such as probation, counseling or community service.
Resisting Unlawful Arrest
Most people would instinctively try to resist an unlawful arrest – being arrested when they have committed no crime. The first response would be to deny it, possibly to struggle free; the fight-or-flight response is strong. However, it’s recommended that an individual cooperates with an arrest even if it is unlawful, because any of these arguments could be perceived as resisting arrest even if the person is innocent.
Keep in mind that a police officer is not justified in using unreasonable or excessive force in California. If the officer is using an inappropriate amount of force, this violates the criteria expecting officers and EMTs to be performing the lawful duties of their job_._ Thus, responding physically with an attempt to prevent harm is considered self-defense, rather than resisting arrest.
Other than such extreme cases, most California lawyers recommend going along with any arrest, with the knowledge that unlawful arrests can be defended in court. The wording of the law for resisting arrest is broad, so it’s best to calmly cooperate with the officer until a time when the arrestee can make his statement.
Fighting a Resisting Arrest Charge
An individual accused of resisting arrest in California can face up to a year in jail, a fine up to $1,000, and other assignments as the judge deems appropriate. However, since this law is so broad, many individuals feel that they are innocent of resisting arrest and look to fight the charges in court. There are a number of legal reasons a person might be innocent and make that defense in a court case:
- Not a willful act: This defense argues that the individual did not willfully or intentionally disrupt the officer or the EMT’s ability to complete their job. For example, the individual didn’t know that the person was a law official, or their interference was entirely accidental.
- Self-Defense: In cases where excessive force was used by the officer, the individual can make a case for self-defense. This defense may work in situations that got overheated and came to blows
- Unlawful arrest/error: If the individual was unlawfully arrested and resisted, or if the officer made a mistake, this can be used as grounds to dismiss the charge. While it may seem inadvisable to tell an officer that she has made an error, in most cases the knowledge that the arrest itself was not accurate is enough to overturn the resisting arrest charges.
- False accusations: Because crime scenes can be confusing, and emotions may be running high, there are times when an officer might falsely accuse someone of resisting arrest when they have done nothing to impede the officer's actions. This can happen if an officer is overly angry, feels he has been disrespected or wishes to additionally punish someone. If the accusation of resisting arrest is in fact false, the charges can be defended in court.
Keep in mind that in all of these cases, the individual’s response to the situation is key. For example, even if someone is being unlawfully arrested, assaulting the officer still counts as resisting arrest.
Related Offenses in California
Although resisting arrest qualifies as a misdemeanor, there are several other offenses in California to be aware of because the penalties can become quite severe if certain lines are crossed.
- Assault: An attempt to violently injure another person, this is a misdemeanor that can be added to a charge of resisting arrest in the right situation. Penalties are similar to resisting arrest.
- Battery on a peace officer: If an individual deliberately causes harm or injury to an officer while the officer is performing his lawful duties, that qualifies as battery. Classified under PC 243, this can be considered a misdemeanor or a felony, depending on the circumstances. Based on how it ends up being classified, this offense can result in up to one year of jail and up to $10,000 in fines.
- Resisting an executive officer: In California, executive officers include police officers, sheriffs, judges and government legal representatives. This charge is one step higher than resisting arrest, and requires not only that the subject qualifies as an executive officer, but that the individual has threatened bodily harm against the subject. Penalties in these cases can reach $10,000 and up to three years in jail.
With these related offenses in mind, it becomes even clearer that the best practice when dealing with law enforcement officials is to very calmly cooperate and wait to state your side of the story until the situation is safe and, preferably, you have legal representation. There are multiple ways to overturn falsified charges, so it’s best to cooperate to avoid an escalation.
Danielle Smyth is a writer and content marketer from upstate New York. She holds a Master of Science in Publishing from Pace University. Her experience includes years of work in the insurance, workers compensation, disability, and background investigation fields. She has written on legal topics for a number of other clients. She owns her own content marketing agency, <a href="https://www.wordsmythcontent.com/">Wordsmyth Creative Content Marketing</a>, and enjoys writing legal articles and blogs for clients in related industries.