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Understanding Self-Defense Rights: What Can You Do When Facing an Unlawful Arrest?


A man being arrested
Understanding Your Rights

Examples of Your Rights of Self-Defense Against Unlawful Arrest


ARTICLE DISCLAIMER: 

This magazine article presents to SDF members examples of established case law that in certain circumstances resistance is justified however SDF does not recommend such action.

Most of the time, you can avoid resisting arrest charges by politely complying with an officer’s requests, even if you feel the arrest is unjustified. This is usually the best move, since if things escalate, you could end up charged with assaulting an officer, a much more serious charge—usually a felony. However, if you do find yourself charged with resisting arrest, a knowledgeable criminal defense lawyer can evaluate your best options.


Most state laws prohibit you from resisting or delaying police officers or EMTs who are trying to perform their jobs. Doing so is considered resisting arrest, a misdemeanor. It usually involves physical force, but not always. Depending on the circumstances, you do have options to defend yourself against these charges.


Understanding Self-Defense Rights - Acts Considered Resisting Arrest

Resisting arrest is usually defined as intentionally preventing a police officer from lawfully arresting or handcuffing you or taking you to jail. Here are some things that can be considered resisting arrest:

• Physical acts, such as running away, hiding, or struggling with the officer

• Giving false identification, either verbally or by presenting a fake ID

• Trying to help another person avoid arrest

• Threatening the officer


Being slow to comply with an order or swearing at an officer is not, by itself, usually enough to warrant resisting arrest charges. Neither is questioning an officer’s actions or authority before ultimately complying with requests.


Defenses Against Resisting Arrest Charges

The key to defending yourself against resisting arrest charges is to remember that such charges hinge on you resisting an officer of the law in the lawful execution of his or her duties. Here are some possible defenses, depending on your situation:


Unlawful Arrest

If the arrest was not lawful to begin with, you did not do anything wrong even if you did resist. The officer was not performing his or her duties, since there is no duty to make an unlawful arrest. An example of this is resisting during an unlawful search of your home.

Self-defense: You have the right to defend yourself against police misconduct. An officer using excessive force against you has changed the arrest from lawful to unlawful. Keep in mind that if the officer’s use of force was in response to forceful resistance from you, you lose your self-defense claim. Also, your response has to be reasonable given the circumstances. You cannot break free and start hitting the officer.


Understanding Self-Defense Rights - False Allegations

This defense hinges on proving that nothing you did fits the definition of resisting arrest. For example, you were simply rude or sarcastic, and the officer decided to retaliate by filing resisting arrest charges. It helps to have other witnesses to prove this.

Officer did not identify him or herself: It is not possible to intentionally resist an officer if you do not know the person is an officer. An example would be an undercover officer who did not verbally identify him or herself.


Established Case Law

Citizens may resist unlawful arrest to the point of taking an arresting officer’s life if necessary. Plummer v. State, 136 Ind. 306. This premise was upheld by the Supreme Court of the United States in the case: John Bad Elk v. U.S., 177 U.S. 529. The Court stated: Where the officer is killed in the course of the disorder which naturally accompanies an attempted arrest that is resisted, the law looks with very different eyes upon the transaction, when the officer had the right to make the arrest, from what it does if the officer had no right. What may be murder in the first case might be nothing more than manslaughter in the other, or the facts might show that no offense had been committed.


An arrest made with a defective warrant, or one issued without affidavit, or one that fails to allege a crime is within jurisdiction, and one who is being arrested, may resist arrest and break away.


If the arresting officer is killed by one who is so resisting, the killing will be no more than an involuntary manslaughter.” Housh v. People, 75 111. 491; reaffirmed and quoted in State v. Leach, 7 Conn. 452; State v. Gleason, 32 Kan. 245; Ballard v. State, 43 Ohio 349; State v Rousseau, 241 P. 2d 447; State v. Spaulding, 34 Minn. 3621.

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