Use or Abuse? How to Defend Yourself against Resisting Arrest Charges

by davidfaltz on January 27, 2017

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Resisting Arrest

“To protect and serve” – this is the official motto adopted in 1963 by most police departments across the country to describe their profession’s aim and purpose, but many times this motto has remained just that – a motto. Recent reports show more and more officers who behave not as if they are protecting the law– but as if they are the law, and exempt from it. The honesty, integrity, fairness and respect listed as core values suddenly vanish when they start bullying the innocent and the citizens they were supposed to protect in the first place. And when police violate the rights of people they are sworn to serve, they turn from protectors into oppressors.

Use or Abuse?

Few laws in Chicago are more abused by the police than the resisting or obstructing a police officer law. The vagueness of the law – listing a wide range of actions that interfere with law enforcement – allows the police to use it as a “catch-all offense” in order to cover their own misconduct: unwarranted search and seizure, intimidation and excessive use of force, either physical or psychological.

It is well-known that police use force frequently, and several well-publicized media articles have heightened concern about police misconduct, but statistics show contact between the police and the public has declined considerably. During the 2008 Contacts Between Police and The Public survey, the U.S. Bureau of Justice has surveyed more than 60,000 American residents ages 16 or older about their face-to-face contact with law enforcement officers during the previous year. The findings were hopeful: between 2002 and 2008, police officers used or threatened to use force in less than 2% of encounters.

The percent of U.S. residents who had a face-to-face contact with the police also dropped, from 21 percent in 2002 to 16.9 percent in 2008. Whites accounted for 8.4% of all those stopped by the police; the number of blacks and Hispanics were not far – 8.8% and 9.1%, respectively. Between the genders, male drivers were stopped more often than females (9.9 percent, compared to 7 percent).

Chicago Criminal Lawyer

Nevertheless, of those individuals who reported the police used force against them, almost half said they were pushed and grabbed, and about 1 in 4 had a gun pointed at them; nearly 20 percent were injured during the encounter.

In Illinois, the average police misconduct rate was not so high, according to data released by the National Police Misconduct Statistics and Reporting Project: 740.98 misconduct rate per 100,000 officers, compared to 2931.94 in Vermont or 2210.53 in West Virginia. However, reports published by law enforcement agencies in Chicago surpass the projected rate: 383 sustained incidents, at a rate of 2866.98.

What Qualifies as Resisting Arrest?

Resisting Arrest is governed by the Illinois Statute 720 ILCS 5/31-1, which states that “any person who knowingly resists or obstructs the performance by one known to the person to be a peace officer, firefighter, or correctional institution employee of any authorized act within his or her official capacity commits a Class A misdemeanor”. The following actions may be considered as resisting arrest:

  • Running, hiding or attacking an officer while being arrested.
  • Presenting false identification.
  • Threatening the officer.
  • Attempting to help another individual resist arrest.
  • Struggling to prevent being handcuffed or put into the police vehicle.

However, the law is not clearly worded and can be subject to interpretation, so the charge may cover a broad range of acts that qualify as interference in the law enforcement process. Furthermore, the state of Illinois does not grant a person the right to resist an unlawful arrest – the suspect must cooperate with the police officer and submit to the arrest without resistance, as in the case of a lawful arrest.

For an individual to be convicted of resisting arrest charges, the prosecutor must prove guilt beyond a reasonable doubt, namely:

  1. That the defendant attempted or prevented a police officer from making an arrest – of the defendant or of another individual.

  2. That the officer was identifiable as an authority – it must be shown the officer was wearing the uniform or had identified himself by exhibiting credentials.

  3. That the defendant used or threatened to use physical violence against the police officer.

  4. That the defendant was aware he or she was interfering with the law enforcement process at the time of the arrest.

What Are Your Options?

Chicago Defense Lawyer

Resisting arrest is a Class A misdemeanor punishable by up to one year in a county jail, a $2,500 fine or both, although it may be considered a Class 4 felony if the police officer is injured during the contact. In the State of Illinois, a sentence of supervision is not available on resisting arrest charges, so the minimum punishment results, in most cases, in a conviction, which will remain on record permanently.

The best outcome for a person accused of resisting arrest is to convince the prosecution to drop the charges. In case an agreement cannot be reached with the prosecution, an experienced criminal defense lawyer can prepare the case for trial. Depending on the situation, the attorney can use one of the following defenses:


A police officer is allowed to use physical force and carry weapons to accomplish an arrest. However, if the officer starts behaving aggressively and with unjustifiable violence, the arrestee can defend himself, although his response must be proportional in the given conditions.

False allegations

Your criminal defense lawyer can prove that nothing you did matches the definition of resisting arrest, in which case it helps to have witnesses who can confirm that you were in no way resisting or interfering with the law enforcement process.

Police misconduct

The attorney can prove that the police officer making the arrest has engaged in misconduct (characterized by excessive use of force, performing illegal arrests and making up charges) and file a “pitchless motion”, requiring the information in the police officer’s personal file to be presented as evidence in the case.

An experienced criminal defense counselor can prove the arrest was illegal or that your behavior was justified under the circumstances. However, you are probably in for a tough fight – especially if the judge adheres to the “law and order” principles and wants to make an example out of you. Regardless of your circumstances or the course of action you want to adopt (pleading guilty or not guilty), specialized legal advice is crucial in winning a “not guilty” verdict or reducing charges to a minimum.

About the Author
Andrew M. Weisberg is a criminal defense attorney in Chicago, Illinois. A former prosecutor in Cook County, Mr. Weisbergis a member of the Capital Litigation Trial Bar, an elite group of criminal attorneys who are certified by the Illinois Supreme Court to try death penalty cases. He is also a member of the Federal Trial Bar. Mr. Weisberg is a sole practitioner at the Law Offices of Andrew M. Weisberg.

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