Resisting arrest is a serious crime in the United States and can be classified as either a felony or a misdemeanor, depending on the circumstances. Depending on the state, resisting arrest can result in various punishments, from fines to imprisonment. Therefore, understanding when and how resisting arrest is considered a felony is important to those who may find themselves facing criminal charges.
What Constitutes Resisting Arrest
The state has to prove several elements of the crime to prove that a criminal defendant is guilty beyond a reasonable doubt of resisting arrest. The first is that the defendant intentionally resisted, obstructed, impeded, delayed, or hindered a law enforcement officer somehow. Secondly, the defendant has to have known at the time that the individual was a law enforcement officer. Thirdly, the law enforcement officer had to be lawfully undertaking official tasks or duties when the defendant performed the act of resisting.
As the elements above demonstrate, resisting arrest charges cover more than just fighting against police trying to arrest you. Instead, any violent actions that interfere with police operations may constitute resisting arrest, which is why protestors and rioters often face this charge.
Resisting arrest can occur based on actions and can also be passive resistance, such as failing to comply with police directives and creating a substantial risk of harm to the police officers, self, or others. For example, it may occur when a suspect is being taken into custody or when a defendant provokes or incites others to commit violence against police officers.
When Is Resisting Arrest Considered a Felony
Is resisting arrest a felony charge or a misdemeanor charge? The answer depends on the level of physical violence employed by the defendant. Felony resisting arrest occurs when a defendant performs a physical act of violence or threatens violence against a law enforcement officer, such as pulling away, becoming physically combative, actively running, or evading arrest.
Penalties for Felony Resisting Arrest
The penalties for a resisting arrest felony vary based on each state’s laws. However, on average, a reasonable range of felony resisting arrest penalties include jail time from a year to as high as five to ten years for certain acts like fleeing in a vehicle, using a deadly weapon to resist, or physically grappling or struggling with law enforcement officers. In addition to resisting arrest charges, defendants who use physical violence against police officers could be charged with assault or battery of a police officer, which is a statutory crime in most jurisdictions.
Best Defenses to Felony Resisting Arrest
With the help of skilled criminal defense attorneys, defendants charged with resisting arrest may have the following defenses available to them: the defendant was acting in self-defense, or the arrest was unlawful.
In terms of the defense of self-defense, this defense focuses on the fact that while law enforcement officers are permitted to use the amount of force necessary to accomplish an arrest, any more than the necessary amount of force is considered excessive and illegal. Thus, if an arresting officer acts violently and unjustly, the arrestee may protect themselves and resist the arrest. Notably, the law enforcement officer must act first, and the defendant has to exercise self-restraint, using only the force reasonably necessary under the circumstances to resist the arrest.
For the unlawful arrest defense, some jurisdictions allow a defendant to resist an arrest that is not justified, for example, an arrest made without probable cause or a warrant. Generally, reasonable force – or the bare minimum force necessary to resist the arrest – is the extent of resistance that a defendant may put up in these cases. In certain jurisdictions, submission to even an unlawful arrest is required. The defendant may challenge the arrest later to prevent harm to the officer, the defendant, and bystanders.
Seek Legal Guidance from the Law Offices of Kretzer and Volderbing, P.C.
At the Law Offices of Seth Kretzer, our Houston criminal defense attorneys are highly skilled and experienced with the nuances of resisting arrest and can answer your questions and help you with these complex legal issues. Contact our firm today for more information.