Stop Resisting! – Attorneys for Freedom Law Firm

By Andrew C. Marcantel, Esq

Stop Resisting! – An Active Analysis of Passive Resistance

Many people I have represented have gone through the extremely unpleasant experience of being arrested by the police. The ordeal often involves the excruciating discomfort of tight handcuffs, the stress, and confusion of trying to comply with shouted police commands, and more often than not, a significant amount of painful and unnecessary physical force. The person is taken into custody, charges are levied, a court date is set, and often a bond must be posted prior to their release – assuming they are afforded a bond in the first place.

But even after going through all of that, you can imagine the further surprise and frustration many of my clients have experienced when they discover an extra charge has appeared on their citation – one they did not expect. And in addition to the underlying offense for which they were arrested, they now find themselves accused of the serious crime of resisting the arrest itself! A surprise “bonus” charge from the State.

In Arizona, the crime of Resisting Arrest is dictated by A.R.S. 13-2508. The first two subsections of the statute prohibit an arrestee from using physical force against a police officer during an arrest or creating a substantial risk of injury to a police officer during an arrest. If charged with this type of conduct, an arrestee will find themselves charged with a Class 6 Felony in addition to the underlying crime for which they were arrested. The charge is severe – sometimes even more severe than the underlying crime (if, for example, the underlying conduct was only a misdemeanor). If convicted, the defendant runs the risk of incarceration and other serious punishments and will be branded as a felon for the rest of their life.

While the intent of the statute is noble insofar as it encourages arrestees to cooperate with police, the problems and potential for abuse often arise from the third subsection of the statute. This subsection criminalizes engaging in “passive resistance” during an arrest. The statute defines this term as “a nonviolent physical act or failure to act that is intended to impede, hinder or delay the effecting of an arrest.” Engaging in “passive resistance” during an arrest is charged as a Class 1 Misdemeanor and is the most common subsection of the statute that is alleged.

Obviously, the definition in the statute is extremely broad and can encompass a litany of different types of behavior. Absent from the definition is any sort of clarification as to what constitutes a “failure to act.” The statute seems to imply that even a fleeting moment of behavior that police construe as “non-compliant” could be sufficient to violate the statute. The definition is silent as to what constitutes an impediment, hindrance, or delay of an arrest. If one asks questions about why they are being arrested, have they engaged in passive resistance? The statutory definition seems to raise more questions than it answers.

I have represented many clients who have been charged with the passive resistance subsection of the statute. A telltale sign that the charge will be showing up on an ill-fated arrestee’s citation can be summed up in one phrase: “STOP RESISTING!” If one is unfortunate enough to hear an officer yell this stern command at the time of their arrest, chances are they will soon find themselves facing the additional crime. What I find most disturbing as a criminal defense attorney is how often police levy this command at people who are not actually, or at least not voluntarily, resisting an arrest.

The rise of video documentation in recent years has changed the game when it comes to analyzing this issue. Most of the arrests I review these days have some sort of video associated with them – whether from department-issued police body cameras, a bystander (or perhaps the defendant themself) taking a video on their cellphone, or a nearby surveillance camera that happens to capture the arrest. Many times, I have discovered the police shout the phrase, “STOP RESISTING!” to people who are not resisting at all. People who are doing their best to be compliant with the arrest. Whether this is the result of blatant bad faith on the part of the officer or the stress of the situation causing the officer to misread the arrestee’s actions is not always clear and should be examined carefully on a case-by-case basis. What is clear, however, are the severe consequences to the wrongfully accused.

An even more common occurrence is when the police misinterpret the acts of the arrestee, often inappropriately deeming their conduct as “passive resistance.” For example, police often employ certain techniques during an arrest to gain control over an individual, such as twisting their limbs into a painful “arm bar” or placing their weight on a subject on the ground.
Set aside, for now, the question of whether such force was actually necessary to effectuate the arrest (unfortunately, the answer to this question is often no).

Using these techniques often inflicts significant physical pain to the arrestee and causes them to act involuntarily and reflexively. For example, a natural reaction to being placed in an “arm bar” is to tense up and try to adjust one’s arm at an angle that minimizes the pain. Police tend to interpret such involuntary or reflexive movement as passive resistance, and the additional charge of Resisting Arrest inevitably follows. I can’t count how many excruciating body camera videos I’ve reviewed where the stern police command of “STOP RESISTING!” is met with an arrestee’s pained response of, “I’m not resisting! Please stop hurting me!”

The key to fighting these crimes often hinges on proving a lack of intent to resist. For this reason, and for many more, the increase in the availability of video evidence has proven invaluable. Often video evidence reveals major discrepancies between the narrative of a written police report and what actually happened. Even though widely available video documentation is a relatively recent phenomenon in the criminal justice system, one shutters to think of the injustices of accountability that existed prior. When a police officer with a shiny badge and a gun claimed that a defendant resisted arrest, that was usually the end of the inquiry. In the average juror’s or judge’s mind, the testimony of the “biased and self-interested” defendant simply does not hold the weight of the “impartial and highly-trained” police officer. Fortunately, video evidence is helping to shift this paradigm.

There is a disturbing trend by prosecutors to use the additional charge of Resisting Arrest as leverage to obtain a conviction on the underlying charge. Many prosecutors I have encountered will offer an initial plea bargain in which the State agrees to dismiss the Resisting Arrest charge in exchange for a guilty plea to the offense for which they were arrested in the first place (the one that the prosecutor usually cares more about). Such practices simply encourage officers to err on the side of levying the additional charge of Resisting Arrest in order to secure a conviction on the original charge underlying the arrest.

What about when the police attempt to wrongfully arrest someone? For example, imagine a scenario where we have a blatant case of mistaken identity – where the police arrest an innocent person who tangentially “matches the description” of a suspect? Or to take the hypothetical a step further, what if an officer simply has it out for someone and arrests them without probable cause in an act of pure bad faith? May an arrestee resist then?

The answer may seem depressing – especially in a society that prides itself on the Fourth Amendment principles prohibiting the illegal seizure of one’s person by the government. In short, the law dictates that one may not even resist an illegal arrest, and the underlying constitutionality of the arrest makes no consequence to the application of the Resisting Arrest statute. In other words, regardless of the circumstances surrounding the arrest, the law mandates us to “STOP RESISTING!”

That is, until we get to court. Court is the place where a wrongfully accused defendant should resist the most – and loudly too, not only for their own sake but for the sake of all similarly situated defendants. If the evidence reveals a lack of intent to resist or shows bad faith on the part of an officer, there may be grounds to dismiss the charge of Resisting Arrest. Often, the threat of negative PR or looming civil rights claim due to the unjust actions of a police department or an individual officer, is a bargaining chip in itself. And as for the vast majority of officers who act in good faith during an arrest – well, they’re human. The badge does not make them unimpeachable. They often make mistakes in high-stress situations, and it is our duty as citizens to challenge them and hold the State to its burden.

For these reasons, it pays to have a skilled advocate in one’s corner when facing these charges. But correcting an injustice in a court of law is a much more difficult task than avoiding it in the first place. As discussed, sometimes that is not possible. But precautions can be taken to minimize the probability of suffering such an injustice. Citizens should preemptively strive to arm themselves with knowledge of their rights – especially when their freedom is on the line.