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Arrested for Resisting Arrest: What You Need to Know

By Ephrat Livni, Esq. on July 08, 2016 | Last updated on March 21, 2019

Luckily for many of us, the absurdities of the criminal justice system are an abstraction. If charges sometimes seem farcical from a distance, we don't worry because we don't think we'll be arrested. But some cases highlight issues in the system that cannot be ignored, and with protests happening all around the country, it seems like a good time to understand the crime of resisting arrest.

Absurd Words

Last year, when a San Francisco public defender was arrested in the courthouse for resisting arrest, a video of the incident shows the plainclothes policeman telling her, "If you continue with this, I will arrest you for resisting arrest." This statement raised questions, naturally. It didn't seem logical or right somehow.

The incident with the public defender, Jami Tillotson, caught media attention because the charge against her didn't seem to make sense. How could a person who is not under arrest and not suspected of a crime be arrested for resisting arrest? The circular logic of the resisting charge broke down in Tillotson's case.

But the logic doesn't always break down. Resisting arrest is often a charge that accompanies another. So, if for example you are stopped for an open container and then you start arguing with police and evading their reach, you might be charged with resisting arrest (distinctions are made between resisting arrest with violence and charges for resisting arrest without violence).

In this hypothetical open container case, the resisting charge stems from the open container accusation, which led to an arrest that was resisted and led to a resisting charge. So the person is not arrested for resisting arrest solely, but that charge is added to another.

Expert Guidance

National Public Radio spoke to an expert about resisting, asking, "How can you be arrested for resisting arrest? Isn't that like being fired for refusing to be fired?"

According to David L. Carter, a professor of criminology and former police officer, resisting arrest does not usually stand as a charge on its own, and when it does, it seems suspect to him. "I question the legitimacy of that," Carter says. "You've got to have the arrest to have the resisting arrest!"

Still, don't expect officers to be super logical when at the scene of a crime or protest, especially if tensions are heightened. Resisting arrest, New York attorney and former prosecutor Nathaniel Burney says, is a charge officers sometimes use to justify controversial arrests or give them added legitimacy.

Burney explains, "There is this -- it's not necessarily an evil mentality -- but it is a mentality that, 'I am in charge, and you shall not contradict me, you're going to do what I say, at all costs,' " he says. "And if you don't do what they say, well now all of a sudden you're a bad person and they've got to arrest you for that."

Arrested?

If you have been charged with a crime, whether resisting or otherwise, speak to a lawyer. Many criminal defense attorneys consult for free or a minimal fee and will be happy to assess your case.

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