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What Is Resisting Arrest? Are There Any Defenses?

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By Mark Wilson, Esq. on January 29, 2015 2:35 PM

What is resisting arrest, and what defenses can potentially be used to defeat the charge?

A San Francisco public defender was arrested Wednesday after she refused to let police photograph her client in a court hallway. Notably, a police officer told her before she was placed in handcuffs that she would be arrested for resisting arrest.

Eventually, Deputy Public Defender Jami Tillotson was arrested, though a cellphone video shows that, far from "resisting," she let police cuff her and lead her away. So how can she be prosecuted for resisting an arrest that hadn't happened yet?

Calif. Penal Code Section 148: It's More Than Just Arrest

The statute in question, California Penal Code Section 148, isn't limited just to resisting arrest, even though that's the shorthand name for it. Like similar laws in other states, it prohibits "willfully resist[ing], delay[ing], or obstruct[ing] any public officer, peace officer, or an emergency medical technician ... in the discharge or attempt to discharge any duty of his or her office or employment." Any action a person takes that impedes an officer -- even standing in his way -- could qualify.

Resistance isn't limited to just physical contact. It can be verbal, as in a person's refusal to identify himself or herself during booking at the police station. It can also be a passive act, like going limp when being arrested.

As one California appellate court observed, "[A] person who goes limp and thereby requires the arresting officer to drag or bodily lift and carry him in order to effect his arrest causes such a delay and obstruction to a lawful arrest" as to violate the statute.

Potential Defenses

Some potential defenses to resisting arrest include proving that you were not resisting, or that you were acting in self-defense against an officer's unreasonable use of force.

Another defense is the claim that the arrest wasn't lawful in the first place. Courts have held that, although people are required to submit to a lawful arrest, an officer making an unlawful arrest isn't discharging a duty of his or her office because police don't have the right to make unlawful arrests.

California, however, closed this little loophole -- which has existed since English common law -- by enacting a separate statute making it a crime to resist any arrest, lawful or not. The only exception to the other statute, Penal Code Section 834a, is that a person can use force to protect himself from death or injury from an officer's use of excessive force.

Even if a person thinks an arrest was unlawful, that question is ultimately up to a judge to decide, and if the judge decides it was lawful, then the arrestee can be hit with these other violations.

Was This Really a Crime?

The burning question is whether Tillotson was obstructing an officer's performance of his duty. That part isn't entirely clear and would hinge on whether photographing a person who's not detained or arrested is a "duty" (which the dictionary defines as "obligation").

This question will probably never be answered, though, as it's unlikely the San Francisco District Attorney would make such a huge P.R. blunder as charging a public defender for trying to do her job by advising her client.

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