Resisting Unlawful Arrest

In some states you can legally resist unlawful arrest with reasonable force. In others you can’t.

By , Attorney

Historically, American citizens were legally entitled to use reasonable force to resist unlawful arrest. Some states continue to follow this rule, while others don't.

This article will provide an overview of laws in states that give citizens the right to resist an unlawful arrest, the limitations and complexities of those laws, and the consequences for getting it wrong. If you have questions about the laws in a specific state, contact a criminal defense attorney who practices in that state.

Most states don't allow individuals to resist an arrest—lawful or unlawful. For more information, check out Resisting Arrest: Laws, Defenses, and Penalties.

Do You Have the Right to Resist an Unlawful Arrest?

In some states, yes, a person has the right to resist an unlawful or illegal arrest by using a reasonable amount of force to prevent or stop the arrest. There are two key limitations to this right: (1) The arrest must be illegal; and (2) A person can resist using only a reasonable amount of force.

A suspect who gets it wrong can face criminal charges (along with serious injuries). If the person resists a legal (versus illegal) arrest, they can be charged with resisting or obstruction. And using more force than is reasonable can result in assault and battery or other criminal charges.

What Is an Unlawful or Illegal Arrest?

First off, know that just because a suspect is innocent, their innocence doesn't make their arrest illegal. That may seem counterintuitive, but police officers are working off of limited information in real time. To make a lawful arrest, an officer needs only probable cause that a crime was committed. Probable cause is a much lower standard than what's needed for a conviction—proof beyond a reasonable doubt.

Legal Arrest: Probable Cause

Officers have probable cause when they can point to objective circumstances (not a mere hunch) leading them to believe the suspect committed a crime. If a crime was reported and you're in the wrong place at the wrong time, the officer might have legal probable cause to arrest you, making that arrest legal.

Consider the fact that you don't know what information the officer has. Basically, just because the officer was wrong doesn't make the arrest wrong. And while you may have been innocent initially, by resisting a "lawful arrest," you've now committed a crime.

Illegal Arrest: No Probable Cause; Excessive Force

Of course, there are times officers make illegal arrests. If an officer doesn't have probable cause to make an arrest (such as in racial profiling cases) or uses excessive force in an arrest, the arrest is illegal. But even then, it can be dangerous to resist. Circumstances can unravel quickly, leading to serious injuries or even death. For this reason, the best place to contest the legality of an arrest is often in the courtroom, not the streets.

What Is a Reasonable Amount of Force?

The next question is what amount of force is reasonable. Generally, if permitted, a person resisting an unlawful arrest may use only the amount of force necessary to stop or prevent the arrest, nothing more. Some states don't permit an arrestee to resist an illegal arrest if it's peaceful.

Determining what's reasonable might sound simple in theory, but in reality, it's much harder to quantify. Using a deadly weapon against an officer, for instance, won't be reasonable if an officer tries to handcuff you. But what if a physical struggle ensues? Is that reasonable? Is pulling your arms away and running reasonable? It could come down to a jury.

Penalties for Resisting a Lawful Arrest or Using More Force Than Necessary

As noted above, getting it wrong in the case of resisting an arrest can result in criminal charges for your actions.

Penalties for Resisting a Lawful Arrest

If it turns out you resisted a lawful arrest (even if you thought it was unlawful), you could face charges for resisting arrest. Some states place resisting arrest under their obstruction or disorderly conduct laws.

Resisting arrest crimes can be misdemeanors or felonies, depending on the circumstances. Some states impose misdemeanor penalties for resisting crimes that don't involve violence or force (such as pulling away from an officer's grip) and reserve harsher felony penalties for resisting by use of force or threats of violence.

Penalties for Using Too Much Force

A person who uses more force than necessary can face harsh penalties for assault and battery of a police officer. Because it's an assault of an officer (who is usually afforded greater protections under the law), many states impose felony penalties right off the bat. The penalties increase as the level of harm or risk of harm to the officer increases. A conviction could mean the possibility of a few years in jail time or decades in prison. A judge can also order you to pay restitution to the officer to cover medical bills.

Can Someone Use Self-Defense Against a Police Officer?

If an officer uses excessive use of force in an arrest, many states' laws give citizens a limited right to use force in self-defense. Here, it's not necessarily about resisting but rather protecting oneself against serious harm. Some states don't permit suspects to claim self-defense if they committed a dangerous felony that required police to respond to an immediate threat of violence.

State laws differ on self-defense rules and their specifics. But generally, a person must reasonably believe they are in imminent danger of suffering bodily harm or death before resorting to self-defense. And a person can only use as much force as is necessary to protect oneself—using a greater amount of force can turn the tables and make the victim the aggressor. In some states, if the officer stops using excessive force, the suspect can no longer justify the use of further force. Other limitations to self-defense claims may also apply.

Talk to a Lawyer

If you want to know the state of the law in your jurisdiction, make sure to consult an attorney experienced in criminal law. Such a lawyer should be able to tell you whether and under what circumstances you might have a defense to resisting arrest or related charges.

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