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Resisting Arrest: Should I Resist a Wrongful Arrest?

December 01, 2020

Resisting arrest is one of the worst things you can do if confronted by the police.

Take this example: You’re walking down the street, minding your own business.  An officer pulls up along side you, and calls you over.  He asks you questions about where you’re coming from, where you’ve been today, where you’re heading.  You answer his questions truthfully.  But then the officer says you’re under arrest for burglary.

You know you didn’t commit burglary, and that you haven’t done anything wrong.  As far as you know, the officer has no reason to believe you’ve committed any crime. The officer orders you to place your hands behind your back to be handcuffed.

What should you do?

When the officer tells you to put your hands behind your back, what do you do?

Do not resist arrest.

Even though the officer appears to be doing something wrong, resisting arrest will likely make the situation much worse.

Your best course of action is to put your hands behind your back and submit to arrest.

Resisting Arrest

What happens when you Resist Arrest?

1. You’ve committed a crime

In Illinois, as in many other jurisdictions, if you refuse to put your hands behind your back, or resist arrest in any other way, you are committing a crime, even if the arrest you’re resisting is later found to be unlawful (i.e. even if there is no probable cause for the arrest).   

Resisting arrest is normally a Class A misdemeanor in Illinois, and subjects you to 48 hours of imprisonment or 100 hours of community service, in addition to any other sentence the court imposes. 

If your resistance results in an injury to an officer, it becomes a Class 4 Felony, which may be punishable by 1 to 3 years in prison. However, in the course of resisting, if you offensively touch an officer, even if there is no injury, you may be guilty of an aggravated battery, which is a Class 2 Felony, and may be punishable by up to 7 years in prison.

In short, resisting arrest is a serious offense that can come with significant punishments!

2. You may lose your false arrest claim

Under federal law, probable cause to arrest will defeat a false arrest claim in civil court, even if that crime is different than the one for which you’re being arrested.

If an officer attempts to arrest you without probable cause, and you resist that arrest, you have just provided the officer with probable cause to arrest you (for the crime of resisting), and you have forfeited any false arrest claim you may have had.

3. You’ve allowed the officer to use force against you

Police officers are justified in using any force reasonably necessary to effectuate an arrest.

If the suspect resists arrest, the officer may use force to effectuate the arrest. The greater the resistance, the greater the force the officer will use.  This may be simply grabbing your arms to get them behind your back to handcuff you, it could mean an emergency takedown (in which you may be slammed to the pavement face first), or it could mean even more severe uses of force, with weapons.

But it may not stop there. We’ve seen too many situations where an officer struggles with a suspect and things spiral out of control, with tragic results. Make no mistake, though: resisting arrest never justifies the use of excessive force on a suspect. Police use of force must always be reasonably necessary to effectuate the arrest. Any more force than that is illegal and unconstitutional.

But these recommendations are not about justification. This is about you putting yourself in the best position to preserve your life, your safety, and your legal rights. And you do that by submitting to arrest, even if you believe the arrest is unlawful.

You deal with unlawful arrests in court. You don’t deal with them on the street, because on the street, you’ll lose every time. 

4. Resisting Arrest weakens your case in court

As discussed above, resisting arrest may result in criminal charges and possibly even a conviction. But it will also harm your case if you decide to file a civil rights lawsuit later on.

Whether it’s a false arrest claim or an excessive force claim, the more you resist, the more the jury will be likely to side with the officer. Never forget that most Chicago police officers, and many officers throughout Illinois and the rest of the nation have dash cameras and body cameras that will record everything that happens between you and the officer. 

So you should always assume that your actions are being audio- and video-recorded, and that a judge and a jury are likely to see everything that happened.

Two Types of Resisting Arrest: Passive and Active Resisting

There are two categories of resisters: passive resisters and active resisters.

  1. Passive resisters resist arrest by refusing to comply with an officer’s orders.  They refuse to come out of the car, or to put their hands behind their backs when ordered.
  2. Active resisters resist arrest by taking affirmative actions to defeat the arrest.  It can be as little as tensing your body so the officer can’t handcuff you.  Walking or running away from an officer attempting to arrest you makes you an active resister.  Physically struggling with an officer or striking the officer constitutes active resistance, and may even get you charged with aggravated battery to the officer. That’s a felony. Even threatening an officer with harm makes you an active resister.

Resisting arrest, regardless of whether it is passive or active, is a crime. But the more active your resistance, the worse it will be for you – physically and legally.

There is one more classification you should be aware of: the cooperative subject.

A cooperative subject is a police classification for someone who complies with police directions and orders, and does not resist or obstruct the officer in any way. Any use of force against a cooperative subject is illegal and violates the Fourth Amendment to the United States Constitution.

Your goal is always to be the cooperative subject.

Conclusion

Even if you believe you are being wrongfully arrested, resisting arrest is a crime. However, resisting is no excuse for an officer to use excessive force. Let’s review the main takeaways below.

Resisting arrest may have several consequences:

  1. You have now committed a crime, and can be convicted.
  2. Even if the underlying arrest was invalid, you have provided the officer with probable cause to arrest you.  You have eliminated any false arrest claim you could have made in criminal court or later on if you decide to file a lawsuit. Probable cause for any crime – even if it’s not the crime you were arrested for – defeats a claim of false arrest.
  3. Depending on the nature of the resistance, the officer is now allowed to use force to make the arrest.  If you actively resist, the force will be greater.
  4. You have undermined any excessive force claim you may want to bring later, because 1) resisting arrest allows the officer to use greater force in order to make the arrest, and 2) it looks worse on video when you’re actively resisting arrest.

However, resisting arrest is not an excuse for police brutality.

An officer can only use force based on the actions of the person they are arresting. Any use of force that is not reasonably necessary is a violation of your constitutional rights, regardless of whether you were resisting at the time. But the place for complaining about excessive force is in court, not on the street.

If you believe you or someone you know has been the victim of false arrest, police brutality, excessive force, or any other legal or constitutional violation, contact Chicago civil rights attorney Jordan Marsh for a free consultation at (312) 401-5510, or at jordan@jmarshlaw.com.

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