While arrestees generally have a right to defend against excessive force used in an arrest, this right is very limited.
By Michael Tarleton, Attorney · Northwestern Pritzker School of Law
Updated by Rebecca Pirius, Attorney · Mitchell Hamline School of Law
It's rare that someone being placed under arrest has the right to forcefully resist. But, in most states, if the arresting officer uses excessive force that could cause "great bodily harm" or death, arrestees have the right to defend themselves. That's because most states hold that an officer's use of excessive force amounts to assault or battery, which a victim has a right to defend against.
This article will review these concepts in more detail below.
Laws on Resisting Arrest
Generally speaking, people don't have the right to resist arrest. In many states, this rule applies whether the arrest was lawful or unlawful. The rationale behind prohibiting people from resisting arrests (even for illegal arrests) is that resistance can escalate the situation and make it dangerous for the arrestee, officers, and bystanders. In most instances, the matter of an illegal arrest can be better and more safely handled in the courtroom than on the streets.
However, if an officer uses excessive force that could result in great bodily harm or death, a person can defend themself against such harm. Here, serious bodily harm or loss of life cannot be repaired in the courtroom. And many states equate the person's actions to self-defense rather than resisting.
Right to Defend Against Excessive Force by Police
While most states recognize a right to defend oneself against excessive force, the arrestee still has some tough hurdles to overcome under the law.
Officer's Use of Excessive Force
An officer's use of force is "excessive" if it's likely to result in unjustifiable, great bodily harm (serious injury). Most states consider whether a "reasonable person" under the circ*mstances would have believed that the officer's use of force was likely to cause great physical harm, including death.
Amount of Force Used in Self-Defense
On the rare occasion that a court finds that an arrestee was entitled to resist excessive force, the determination shifts to whether the amount of force used was appropriate. Although the precise rules vary by state, in general, the amount of force used to resist arrest must be proportional to the amount of excessive force used by the arresting officer. An arrestee's use of force is not justified if it's more than necessary to fend off the attack or free oneself.
Overall, these are high standards to meet—so high that courts hardly ever find that an arrestee's forceful resistance was defensible.
Exceptions to the Right to Defend: When Resistance Must Stop
The circ*mstances under which a person is justified in resisting excessively forceful arrest are rare, even rarer due to some important exceptions. States created these exceptions to discourage people from fighting with police. An arrestee will no longer be justified in defending themself under the following circ*mstances.
No more danger. If the officer stops using excessive force, the arrestee must stop resisting.
Resistance that prolongs excessive force. An arrestee must stop resisting if there's reason to believe the officer will stop using excessive force if the arrestee quits resisting.
Resistance that causes excessive force. If the arrestee did something to cause the officer to use excessive force in the first place, she isn't justified in resisting the arrest.
Examples of Self-Defense Against Police Use of Excessive Force
To illustrate how tricky the resistance issue can be, suppose that an officer pulls Jesse over for reckless driving. The officer gets out of his patrol car and orders Jesse to exit the vehicle and put his hands in the air. Jesse complies. The officer then tackles Jesse to the ground and repeatedly slams his head into the pavement. Under these circ*mstances, it would probably be reasonable for Jesse to resist the arrest—in some states, he may even be justified in using deadly force because of the threat to his life.
But if Jesse, rather than following the officer's instructions, had charged at him, the analysis would be different. In that instance, he arguably provoked the officer's violent response, in which case he wasn't justified in resisting the unreasonably forceful arrest—he "caused" the officer's use of force. However, if the officer had subdued Jesse but nevertheless continued to strike his head in the pavement, then Jesse may have been within his rights to resist.
Penalties for Resisting Arrest
If a judge or jury decides that the arrestee was not justified in resisting arrest, the penalties can be stiff. Felony penalties typically apply to any violent acts against a police officer, whether it's charged as resisting, obstruction, assault, or battery.
If the resistance caused bodily harm to the officer, the defendant will likely face prison time. Assaulting a police officer is a serious offense that could carry sentences of 5, 10, 20 years, or more, depending on the extent of the injuries. An arrestee who used or brandished a dangerous weapon might face a few decades of prison time.
Consult a Lawyer
The discussion above provides a general overview of the law on resisting arrest. Whether you are allowed to resist an arrest in any way depends on the facts of your case and the laws in your jurisdiction. In some states, the fact that you used force and the amount of force you used might be justified, whereas in others one or both might not. The analysis might change if you're resisting an unlawful arrest.
Ultimately, it's rare that someone properly uses force in resisting arrest. If you face charges relating to an altercation with an officer, immediately seek the help of an experienced attorney. A lawyer can analyze your case, discuss any potential defenses, and protect your rights.
