Resisting Arrest

Under Massachusetts General Laws Chapter 268, Section 32B, a person charged with resisting arrest is accused of attempting to prevent a police officer from arresting him or another person. However, whether those charges will stand depends on three main issues: (1) what the police officer did; (2) what you did; and (3) what you knew at the time of your actions.

(1) What the Police Officer Did

The district attorney prosecuting you must first show that a police officer was acting “under color of official authority” in attempting to arrest you. A police officer acts “under color of official authority” if he or she is acting in the regular course of his or her duties as a police officer and makes a good faith judgment, based on the facts and circumstances, that he or she should make an arrest.

Under the statute, a police officer can be in or out of uniform. If the officer is not in uniform, he or she must identify himself or herself by showing credentials (i.e. a badge, insignia, or other clearly identified police equipment) while trying to make the arrest. Additionally, the police officer must have actually intended to make an arrest, and been in the process of making the arrest, at the time you allegedly interfered with that effort.

It is not a defense to the crime of resisting arrest that the officer was arresting you illegally. However, a police officer may not use unreasonable force or excessive force when making an arrest. Determining what is “unreasonable” or “excessive” depends on the circumstances. Generally, using only the amount of force that is necessary to place you under arrest will be seen as “reasonable,” and any force beyond that which is not justified will be “unreasonable” or “excessive.” If the police officer uses unreasonable or excessive force to make the arrest, then you are allowed to defend yourself with as much reasonable force as appears necessary. Again, what is “reasonable” depends upon how much unreasonable force the police officer was using against you in the first place.

(2) What You Did

Next, the district attorney must prove that you interfered or attempted to interfere with the police officer while he was attempting to make the arrest, and that you did so by using (or threatening to use) physical force or violence against the officer, or by creating a substantial risk of causing bodily injury to the officer. This could include combative conduct, or even running away from the police, if pursuing you would create a risk of harm to the officer.

If there is evidence that the police used unreasonable or excessive force, then the district attorney must also prove that your responsive actions were not in self-defense. To do so, the Commonwealth must prove only one of the following: (1) you did not reasonably believe that the officer’s use of force was unreasonable or excessive and put you in danger; (2) you did not do everything that you reasonably could have done to avoid physical combat before using your own force; or (3) under the circumstances, you used more force than was reasonably necessary to defend yourself.

The timing of your conduct can also be significant. Generally, your resistance must have occurred before the officer completed the arrest. Any resistance that exclusively occurred after you were seized, detained, placed in custody, and came under police control should not be a basis for the charge of resisting arrest.

(3) What You Knew

Finally, the district attorney must prove that you knew that the person trying to make the arrest was a police officer; you knew that the officer was attempting to arrest you; and you knew you were acting in an effort to prevent the officer from arresting you.

If there is evidence that the officer was in uniform or used credentials to identify himself or herself as a police officer, this will likely be sufficient to show that you knew the person was a police officer. Any words or conduct of the police indicating an intent to arrest you will be evidence that you knew that the officer was attempting to arrest you.

Evidence of intoxication may affect the Commonwealth’s ability to prove your knowledge. If you were under the influence of alcohol or drugs at the time these events occurred, this could have a substantial effect on what you truly knew or did not know about what was occurring and who was involved. If the district attorney cannot prove, beyond a reasonable doubt, that you had the requisite knowledge, you cannot be convicted under the resisting arrest statute.

A resisting arrest charge carries serious potential ramifications. If convicted, you may face up to 2.5 years in jail or in a house of correction, a fine of up to $500, or both. Accordingly, you need a criminal defense lawyer experienced in fighting these charges to protect your rights and to give you the best chance of avoiding conviction.

With nearly 30 years of experience, Attorney Stephen Neyman provides clients with superior representation and works to deliver the best possible results for you and your case. Contact the Law Offices of Stephen Neyman at 617-263-6800 or online for a free consultation today.

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