The Morales Law Firm would like to share this article: Resisting Arrest When Police Use Excessive Force published by NOLO. For more information visit www.NOLO.com.
In most states, arrestees can resist arrest only in limited circumstances.
It’s rare that someone being placed under arrest has the right to forcefully resist. But in most states, if the arresting officer uses excessive force that could cause “great bodily harm,” the arrestee has the right to defend him or herself. That’s because most states hold that an officer’s use of excessive force amounts to assault or battery, which a victim has a right to defend against. (To learn about other scenarios in which defendants may be entitled to resist, see Resisting Arrest: Laws, Penalties, and Defense. Also see What to Do and Not Do When Arrested and Battery Against a Police Officer.)
An officer’s use of force is “excessive” if it is likely to result in unjustifiable great bodily harm (serious injury). Most states consider whether a “reasonable person” under the circumstances would have believed that the officer’s use of force was likely to cause great physical harm (including death). If the answer is “yes”—if a reasonable person would have felt it necessary to resist in self-defense, and if that person used a reasonable degree of force when resisting, then the resistance is typically justified. But this is a very high standard to meet, such that courts hardly ever find that an arrestee’s forceful resistance was defensible.
How Much Force?
On the rare occasion that a court finds that an arrestee was entitled to resist excessive force, the determination shifts to whether the amount of force he or she used was appropriate. Although the precise rules vary by state, in general, the amount of force used to resist arrest must be proportional to the amount of excess force used by the arresting officer.
Exceptions to a Narrow Rule
The circumstances under which a person is justified in resisting excessively forceful arrest are rare, even rarer due to some important exceptions. States created these exceptions to discourage people from fighting with police. These exceptions include:
- Abatement. If the officer stops using excessive force, then the arrestee must stop resisting.
- Resistance that prolongs excessive force. If the person being arrested has reason to believe that, if he stops resisting, the officer will stop using excessive force, then he must stop resisting.
- Resistance that causes excessive force. If the person being arrested did something to cause the officer to use excessive force in the first place, then she isn’t justified in resisting the arrest.
To illustrate how tricky the resistance issue can be, suppose that an officer pulls Jesse over for reckless driving. The officer gets out of his patrol car and orders Jesse to exit the vehicle and put his hands in the air. Jesse complies. The officer then tackles Jesse to the ground and repeatedly slams his head into the pavement. Under these circumstances, it would probably be reasonable for Jesse to resist the arrest—in some states, he may even be justified in using deadly force because of the threat to his life.
But if Jesse, rather than following the officer’s instructions, had charged at him, the analysis would be different. In that instance, he arguably provoked the officer’s violent response, in which case he wasn’t justified in resisting the unreasonably forceful arrest—he “caused” the officer’s use of force. However, if the officer had subdued Jesse but nevertheless continued to strike his head in the pavement, then Jesse may have been within his rights to resist.
Consult a Lawyer
The discussion above provides a general overview of the law on resisting arrest. Whether you are allowed to resist an arrest in any way depends on the facts of your case—and your jurisdiction. In some states, the fact that you used force and the amount of force you used might be justified, whereas in others one or both might not.
Ultimately, it’s rare that someone properly uses force in resisting arrest. If you face charges relating to an altercation with an officer, immediately seek the help of an experienced attorney. That lawyer should analyze any potential defenses and protect your rights.
by: Michael Tarleton