If someone resists, delay, or obstruct a police officer or EMT from the performance of their official duties, they have committed the crime of resisting arrest. In order to argue their case successfully, a prosecutor must prove that the defendant willfully resisted, as opposed to accidentally, did so while the officer or EMT was engaged in their official duties, and that the defendant knew or ought to have known the officer or EMT was engaged in their official duties.

Some examples of resisting arrest would be struggling with a police officer as they try to put handcuffs on you, obstructing the authorities from interviewing a witness, antagonizing an EMT who is attempting to provide medical assistance to someone, or giving false information during questioning.

How do You Know if an Arrest is Lawful or Unlawful?

In order to prove that an arrest was unlawful, it must be proven that the police arrested you, that you were harmed, and that the officer’s conduct played a substantial role in causing that harm.

Once the above has been shown, the burden of proof shifts to the police officer to prove that probable cause was present for the arrest. It is generally the case in California, however, that if an officer had probable cause to believe that the arrest was lawful, even if it is later revealed that it was, in fact, unlawful, the officer is not liable for false arrest.

What are the Penalties for Resisting Arrest?

Resisting arrest is a misdemeanor in California and is punishable by imprisonment of up to one year in county jail and/or a fine of up to $1,000. Instead of jail time, a judge may give a defendant misdemeanor probation, also known as summary probation.

In some cases, less serious resisting arrest cases may escape prosecution altogether. However, if the suspect has been a repeat offender within the past 24 hours, used physical force against an officer, or has a charge for a separate offense filed, they will most likely face prosecution.

What are Defenses to a Resisting Arrest Charge?

While you may still be charged with resisting an arrest even if it is unlawful, the unlawfulness of said arrest can be used in your legal defense. The four most common defenses are to claim no willful act, false accusation, no probable cause, or self-defense.

Since you are only guilty of resisting arrest if you act willfully, no willful act is the defense that the defendant did not act willingly. False accusation is the claim that the arrest was unfounded in the first place. No probable cause means there were no reasonable grounds for the arrest, meaning it violated the Fourth Amendment and should therefore be dropped. The last, self-defense, can be used in cases where the police used excessive force, assuming the person arrested only used reasonable force to fight back and defend themselves.

For any questions you have about the unlawful arrest, give us a call at (562) 462-9233.