If you have been charged with Resisting Arrest please call or email me as soon as possible. Like nearly every other type of criminal charge, it is critical to be proactive and take some action to defend yourself before your next court date.
Resisting Arrest is a misdemeanor in Rhode Island. It is what we in the criminal defense law field consider to be a police intensive charge. The other police intensive charges include Assault and Battery upon a police officer, Obstructing a Police Officer and Disorderly Conduct. This means that there is no alleged victim of the offense of Resisting Arrest. Instead, the alleged victim is the police officer who is attempting to effectuate the arrest. Consequently, the charge of Resisting Arrest frequently results from an unpleasant altercation with a police officer.
If you have been charged with Resisting Arrest you should know that immediately, most if not all prosecutors will assume that you are not a person who is worthy of the benefit of the doubt. In fact, it is likely that you will be viewed very unfavorably. This, amongst other reasons, is why it is so important to speak with a criminal defense attorney who can adequately represent you.
By statute, Resisting Arrest is defined as the use of force or the use of a weapon in resisting the officer’s action of taking a suspect into custody. Typically this involves the police officer placing a suspect in handcuffs.
The person charged with Resisting Arrest has to have reasonable grounds to believe that he is being arrested and that the person making the arrest is a police officer.
The statute also makes it illegal for a person to resist an illegal or unlawful arrest. For example, even if the police officer is arresting a suspect without the necessary probable cause to make said arrest, if the suspect uses force to resist, that suspect can and usually is charged with Resisting Arrest.
Under common law, a person had a right to resist an unlawful arrest. However, the Rhode Island General Assembly has abrogated that right. In fact, the Rhode Island Supreme Court has consistently held that rejection of the old common law right to resist an illegal or unlawful arrest is constitutionally permissible. Specifically the Court has held that the General Assembly’s rejection of physical violence as a means of regaining liberty is not a deprivation of the liberty or due process guaranteed by the Rhode Island Constitution or the United States Constitution.
In cases involving Resisting Arrest it is often the arresting police officer’s word against the word of the person charged. This makes it very difficult to defend against these types of charges because fact finders often give deference and credibility to the arresting police officer. However, there are some defenses available.
Defenses to Resisting Arrest
The first defense I have used with some success involves closely reading the statute. Remember, the statute requires that the person charged actually use force to resist. This begs the question: what is force? Unfortunately, there is very little case law in Rhode Island on defining the use of force.
Other courts in other states have dealt with the issue of the use of force. The prevailing case law supports the notion that the use of force is not the same as pulling one’s arms away, especially when the arresting officer is applying painful force to pull the suspect’s arms behind his back. Specifically, a Texas Appellate level Court has concluded that striking an arresting officer’s arm away constitutes force, but simply pulling one’s arm away is not force. This is because simply pulling one’s arm away presents no danger of injury to the arresting officer.
In addition to the foregoing, other Courts have held that going limp or going rigid does not constitute the use of force. However, some Courts have held that going limp or rigid does constitute Resisting Arrest because the suspect was not attempting to prevent an injury to himself, limiting the defense only to situations where a defendant is attempting to prevent injury.
Many police officers in Rhode Island are not very mindful that the Resisting Arrest statute requires the use of force. Consequently, it is often possible to provide a successful defense based on the arresting officer’s own arrest report.
The other defense available to the charge of Resisting Arrest is self-defense. Under Rhode Island law a Defendant has a right to defend himself when police use excessive force in the act of placing the Defendant under arrest. The use of this defense depends upon whether the arresting officer was in fact using excessive force. If the arresting officer was using reasonable force, the defense of self-defense is not available for use.