Is It Ever Permissible To Resist A Police Officer?

This is the twelfth part in a series of posts about what legal obligations you have when you interact with the police.

Situation:

You’re out with a group of friends, some of whom are drunk and acting rowdy.  This attracts the attention of a group of police officers who decide to arrest all of you.  An officer grabs you roughly, twisting your arm, and attempts to put handcuffs on you.

You might wonder what to do.

The BEST answer:  Let your arms go limp.  Tell the officer politely that you will cooperate but he is hurting you.

The OK answer:  Grin and bear it.

The WRONG reaction:  Tense-up and push back to stop the officer from hurting you.

With respect to your friends, the officers probably have authority to arrest them for some species of disorderly conduct depending on how obviously intoxicated and rowdy they appear.  However, with respect to you, the arrest is probably illegal.  So the question this situation presents is this:  What can you do in a situation like this to prevent a painful and illegal arrest?

You Do Not Have the Right to Resist Arrest

The most important thing to note at the outset is that you do not have a right to resist arrest, even if it is an illegal arrest.  It used to be that citizens had the right to resist an illegal arrest and escape illegal confinement.  However, in the 1960s and 70s, courts began to change their minds about that idea.  The Ohio Supreme Court, for instance, in 1975 decided that there was no right to resist an illegal arrest unless the arrest is carried out using “excessive or unnecessary force.”  Some folks, even experienced attorneys have the wrong idea that there is still a right to resist an illegal arrest because, in Ohio, you cannot be convicted of resisting an illegal arrest.  That is, in order to prove that a person is committing the crime of resisting arrest, the prosecutor would have to prove that the arrest was legal.  However, though you cannot be successfully prosecuted for resisting, you can still be prosecuted for other crimes like obstruction of official business or assault which are almost bound to happen if you resist.  So safest and smartest thing to do is to not resist

Excessive Force

In fact, the only time you are ever allowed to resist an officer is if excessive force is being used against you.  But it is difficult to predict how much force is “excessive” and it is very dangerous to resist armed police officers.  Certainly, a bit of arm twisting, like what is described in this case probably will not qualify as “excessive or unnecessary force.”  Thus, as the OK and BEST answers recognize, the right thing to do in all but the rarest of circumstances, is not to resist.  However, the BEST answer goes further.  The BEST answer also explains that you should let your arm go limp and let the officer know that you will cooperate and what he is currently doing is hurting.  It is important to let the officer know you will cooperate so he does not feel like he has to use force against you.  It is important to let him know he is hurting you so he knows to stop doing what he is doing.  But most important, is letting your arm go limp.

Almost every case I have ever seen that involves obstruction of official business concerns relatively mild resistance to police.  And most often, mild resistance is actually an involuntary reaction to being painfully restrained.  It is amazingly tempting and even instinctual to tense up and push back against someone who is pinning you to the ground or trying to force your arm behind your back.  But that is an impulse you have to control because if you do that, the officer will just push harder to force you to do what he wants.  This will hurt more and, to make a bad situation worse, the officer might decide to charge you with obstruction of official business.

If you are under investigation, or have been arrested by any law enforcement agency, feel free to contact one of our experienced Criminal Defense Attorneys, for a free initial consultation about your legal rights and possible defenses.

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