What does the State have to prove to convict you for Resisting Arrest?
This will tell you what the elements are of Resisting Arrest and what the prosecutor has to do to prove it.
ElementsThe State has charged you with Resisting Arrest. What does that mean? While it sounds simple: "You resisted an arrest..." it has a little more nuance than that. The statute reads:
Prohibited. -- A person may not intentionally:
(1) resist a lawful arrest; or
(2) interfere with an individual who the person has reason to know is a police officer who is making or attempting to make a lawful arrest or detention of another person.
Md. Code Ann., Crim. Law § 9-408
Well that didn't help much did it? So let's look at case law: In order to be convicted for Resisting Arrest, "Both a refusal to submit to lawful arrest and resistance by force or threat of force" must be shown. Rich v. State, 205 Md. App. 227, 44 A.3d 1063 (2012).
Ok, that helps a little bit. Now we know that there must be a "lawful" arrest and threatened or actual physical force. Physical force is self-explanatory, any sort of touching. But what is a lawful arrest? Does that mean that if you were arrested for something you didn't do, it was unlawful? Unfortunately, no.
A lawful arrest is made when a law enforcement officer arrests someone when the officer has probable cause to believe the arrestee has committed a crime. Barnhard v. State, 86 Md. App. 518, 587 A.2d 561 (1991).
So basically resisting arrest occurs when: 1) you are told to stop/detained by handcuff or held, 2) the officer has a legitimate reason to arrest you, and 3) you forcefully try to remove yourself.
DefensesOk, so now that we know what Resisting Arrest means, how do we get acquittals? Well there are always defenses to every accusation (doesn't mean they always work).
1. Defendant had to know he was being arrested. This makes sense right? If you're walking down the street and some undercover cop grabs you, you should be able to defend yourself. The state has to prove that you knew you were being arrested by a law enforcement officer or by someone acting on behalf of law enforcement.
2. Physical refusal didn't rise to level of resisting. When I was a prosecutor, I saw a lot of cops over charging. A lot of cops think that you not intentionally and willfully complying while getting handcuffed and slapped around means that you're resisting. No, and just as the word says, resisting means you have to intentionally and actually make an effort to prevent your arrest. That does not mean you have to do the cop's job for them.
3. Self defense against excessive force. I'm going to start this one by saying, don't rely on this. If this is your main go to argument in court, you've probably already lost. But who knows. This is the defense that you were complying, but the officers just wouldn't stop and you felt in fear for your safety. You are allowed to protect yourself. Now, this doesn't mean that they were a little rough on you while putting the handcuffs on. This means that they were hurting you while you were complying. It can be a very tough sell.
End PointResisting Arrest is one of the more difficult charges to beat, solely because its your word versus their word, and often times it's better to remain silent. And as a disclaimer, DO NOT FIGHT COPS in the streets. Get an attorney who'll fight the cops in the court. Your odds are a lot better there.
If you have questions, please contact me: Christian Hartman at Hartman, Attorneys at Law. I'll be happy to give you a free consultation about your case.