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Resisting Arrest is No Excuse for Police Brutality

July 15, 2020

In light of recent events, there are obviously a lot of comments on social media and elsewhere about police-involved shootings and police brutality, often and disproportionately targeted toward African-Americans and other minority communities.  One strain of comments essentially goes like this: “If you don’t want the officer to shoot you, don’t resist arrest.”

There’s a lot to unpack for such a seemingly simple statement.  First, I advise people all the time when dealing with police officers to comply first, and complain later.  Resisting arrest is a crime, and you can be convicted of resisting arrest even if there is no basis for the original arrest.  It also undermines any false arrest claim you may want to bring later on. Complying with the police and not resisting puts you in the best position to maintain both your physical safety and your legal rights.  (Tragically, however, it is no guarantee you won’t be the victim of police brutality anyway.)

A crucial distinction

That being said, it is crucial to distinguish between common-sense advice to civilians dealing with police officers, and the obligations and requirements of police officers under the U.S. Constitution and applicable policies and standards.  While resisting arrest, or failing to obey an officer’s orders, are inadvisable, they are not excuses for the officer to use any level of force he chooses to, and they do not justify the use of excessive and/or deadly force.

Police use of force

An officer’s allowable use of force is subject to strict rules and criteria, primarily based on the United States Constitution, federal and state statutes, and police department policies and orders.  An officer’s use of force will always be based on the actions of the subject, i.e. the civilian.  The greater the resistance and/or the threat by the civilian, the greater force the officer is allowed to use. 

The term “resisting arrest” includes a somewhat broad range of actions. You can resist arrest by simply refusing to do what the officer tells you to do, by refusing to put your arms behind your back to be handcuffed, or by not exiting your car if the officer orders you to do so. This is known as “passive resistance”.  This allows the officer to use the level of force necessary to get the subject into custody, such as using his hands to bring the subject’s arms behind his back to handcuff him, or to pull the subject out of the car.   

If a subject actively resists arrest, for instance by physically preventing an officer from putting his hands behind his back, by tensing his body, or by walking or running away from an officer, he becomes an “active resister”.  This increase in resistance allows the officer to use a greater level of force, but only enough force necessary to get the subject into custody.  Depending on the circumstances, the officer can use such nonlethal force as pain techniques, baton or asp (like a billy club) strikes, open-hand strikes (i.e. slaps), and even fists.  But these elements of force must still be reasonably necessary to get the subject into custody based on the specific facts of the situation.  An officer cannot punch a subject if the subject is merely moving his arms to prevent himself from being handcuffed.  And it should go without saying that an officer cannot use deadly force simply to get a subject into custody.  The primary justification for the use of deadly force by an officer is that the officer reasonably believes a person poses an imminent threat of serious physical harm or death to the officer or others in the vicinity.  

Bottom line: force must always be reasonable

The fact that a subject resists arrest, or otherwise does not comply with an officer’s orders, does not release the officer from his obligations under the Constitution, applicable laws, or police department policies with respect to the use of force.  Any use of force that is not reasonably necessary to gain compliance by the subject is a violation of the subject’s constitutional rights, regardless of whether the person was resisting at the time.

The problem with glib headlines like “If you don’t want the officer to shoot you, don’t resist arrest”, is that they can blur the line between common sense advice and the legal obligations of law enforcement officers regarding the level of force they can use in a given situation. Too often, we’ve seen moderate resistance by a civilian result in profoundly disproportionate and unreasonable force by an officer.

Simple noncompliance is never an excuse for excessive or deadly force.  

Never.

If you want to speak with a Chicago civil rights attorney about police brutality, get in touch with our office.

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