Depending on the state where you live, you may or may not have the right to resist an unlawful arrest by using force. If you have this right, the use of force must be reasonable and necessary, such that it responds to the use of force by the officer making the unlawful arrest. The resistance must occur during the attempted arrest, and the arrest must have no legal basis. Any use of force must be no more than what is needed to prevent the arrest.
Many states have eliminated this right and now require citizens to comply with an arrest by a police officer, even if they believe that the arrest may not be legal. They can challenge the arrest once they have been taken into custody. Successfully challenging the arrest may lead to getting the charges dropped and possibly filing a civil claim of false arrest against the police.
The Crime of Resisting Arrest
An arrest can be lawful even if the arrestee is innocent.
If a state makes it a crime to resist an arrest, even if the arrest is unlawful, this can result in a separate criminal charge. A defendant can be convicted of resisting arrest regardless of whether they are guilty of the crime for which the officer was arresting them. In some states, such as New York, you cannot prevent a police officer from making an authorized arrest. The police have the authority to make an arrest if they have probable cause to believe that a certain individual has committed a crime. This leaves some room for the possibility that the individual may not actually have committed the crime, but they still cannot resist the arrest if they are confident in their innocence. If probable cause is absent, or if an arrest is otherwise unauthorized, the defendant cannot be convicted of resisting arrest.
Sometimes a law on resisting arrest is limited to physical resistance to an arrest. Verbally objecting to an arrest or to police orders may not support a conviction for resisting arrest because this behavior was non-physical.
Arrests Involving Excessive Force
Controversies recently have arisen regarding the use of excessive force by the police in the course of making an arrest. Specific rules apply to the actions that a person being arrested can take in this situation. If the police officer is using force that creates a risk of serious and unjustifiable bodily harm, this amounts to the crime of assault or battery. As a result, you may have a right to self-defense when this happens, which means that you can use proportionate force to resist the officer.
A Police Officer May Use Deadly Force:
When the suspect threatens the officer with a weapon
When the officer has probable cause to believe that the suspect committed a violent felony (Tennessee v. Garner, 471 U.S. 1 (1985))
To protect the life of a third person
In determining whether an arrest involved excessive force, the court probably will use a reasonable person standard. This means that it will consider whether a reasonable person in the defendant’s situation would have believed that the officer’s use of force would have resulted in serious injuries or death. If the defendant meets this standard, the court next will consider whether the defendant’s use of force in resistance was reasonable. Defendants usually struggle to win these arguments.
There are certain exceptions to the right to use force in response to excessive force by the police. Self-defense against the use of excessive force during an arrest will not apply if the officer is using excessive force because of the actions of the person being arrested. As with other forms of self-defense, an individual must stop using force against the officer if the officer stops using excessive force. In other words, they cannot retaliate. They also must stop resisting the arrest with force if they have reason to believe that stopping resistance will cause the officer to stop using excessive force.