Resisting arrest is a Massachusetts criminal offense under G.L. c. 268, §32B. If you are arrested unlawfully, you may believe the unlawfulness of the arrest relinquishes you from a resisting arrest charge. Unfortunately, if the Commonwealth can prove the following elements beyond a reasonable doubt, you can still be found guilty of resisting arrest:

The defendant prevented (or attempted to prevent) a police officer from arresting him or another person;
The police officer was acting under color of his authority;
The defendant resisted by either using or threatening to use physical force against the officer or another person or using another means which created a substantial risk of causing bodily injury to the police officer or another person; and,
The defendant acted knowingly.

Resisting Usually Must Precede Being Taken into Custody

The defendant must have resisted arrest before he was detained, in custody and in control of police. A person cannot resist arrest if the arrest is already complete. However, Massachusetts’s courts have declared physically resisting placement in a police car after being handcuffed and arrested constitutes resisting arrest. Our Massachusetts Criminal Defense Attorney notes that on the other hand, a defendant who physically resists once in the police station is not resisting arrest.

Awareness of Intention to Arrest

The defendant must have acted knowingly; in other words, he must be aware that a police officer is trying to arrest him or someone else. Before effecting an arrest, an officer must exhibit his credentials, either by displaying or showing his badge, police radio, or marked police cruiser, when he is not in uniform. If the defendant is intoxicated at the time of the arrest, he may not be completely aware of what is going on and may use his intoxication as a defense to resisting arrest. Or, if the defendant is charged with resisting arrest of another person, he may have been unaware that person was being arrested at the time. In reality, police officers will often simply handcuff an individual, without verbally explaining to him that he is being arrested.

Self-defense as a Defense

If a police officer uses unreasonable or excessive force while making an arrest, the individual he is arresting may use reasonable force in order to protect himself. At trial, the Commonwealth would be required to prove beyond a reasonable doubt that the defendant did not act in self-defense.

Running from Police Officers

A suspect who runs from an officer who has stopped him or is attempting to pat frisk him is not resisting arrest. Nevertheless, the courts have also ruled that if police officers are placed in a situation of substantial risk of injury to them, the suspect they are chasing is resisting arrest. Substantial risks may include running across busy streets, through crowds, or over dangerous terrain.

The Reality

If you offer any resistance whatsoever to an officer attempting arrest or handcuff you or anyone else, he will charge you with resisting arrest; “resistance” may include pulling your hands away, holding your arms rigidly by your side, twisting and turning away from the officer, yelling at the officer, and running from the officer. Worse, if you offer the slightest physical resistance to the officer, he will likely also charge you with assault and battery on a police officer. If a member of law enforcement is attempting to arrest or handcuff you, remain calm, offer no resistance, and make no disparaging remarks.

Penalties

Those convicted of resisting arrest may be imprisoned in the house of correction for up to 2 ½ years, fined $500, or both.

Contact A Massachusetts Criminal Defense Attorney

If you have been charged with resisting arrest, call 617-492-0055 to schedule a free in-office consultation with Kevin J. Mahoney, a Massachusetts criminal defense attorney.