To recap our story, Charles and Donna found their young daughter with her boyfriend after curfew, and a yelling match ensued in front of the family home. When James, the boyfriend, called the police out of fear for an escalating situation, the officers who arrived on scene ended up taking James himself into custody for drugs they found in his vehicle. After the chaos subsides, Brianna runs away from the family home, incurring scratches on her face as she does so. In panic, not knowing where their daughter has gone, Donna and Charles call the police.
When the police see the abrasions on Brianna’s face, they immediately assume that someone put them there, and mostly based on their prior interaction, they assume that someone is Charles, and they take him into custody.
For better or worse, demonstrative self-expression is a salient part of Charles’ personality. He was vocally adamant that he was innocent, protesting the handcuffs as they were being slapped on. On this particular night, his impassioned pleadings of innocence probably earned him a night in jail for resisting arrest.
Why Do Prosecutors Charge Resisting Arrest?
Resisting arrest is hardly ever a standalone offense simply because by definition, there must be another arrest to resist. Sometimes, police officers make a note in the offense report that such charges are probably warranted. Other times, there is not enough evidence to proceed with the primary charge and resisting arrest is a fallback position, since as outlined below, an invalid arrest is no defense to this charge. But much more commonly, the state’s attorney who first reviews the report and decides what charges to file makes this move because these lawyers almost always charge the most serious offense(s) that the facts in any way support.
In general, a physical act (which could be pulling away from an officer) is resisting, and providing false information or refusing to “move along” immediately after the officer issues this edict is considered obstructing.
Elements of the Offense
The phrase “resisting arrest” is inherently vague because that act could literally be anything from bludgeoning the officer with a blunt object to politely asking the officer to repeat a question. 720 ILCS 5/31-1 does little if anything to narrow the concept, as it defines resisting arrest as “knowingly resist[ing] or obstruct[ing] 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.”
This offense is a Class A Misdemeanor (maximum one year in jail and/or $2,500 fine). If the officer is injured, and that “injury” could be incredibly minor, the offense is a Class 4 felony (maximum one to three years and/or $25,000 fine). There are also mandatory minimums of 48 hours incarceration and 100 hours community service. Supervision is unavailable, so any conviction is a permanent one.
Possible Defenses
Resisting arrest is almost as hard to defend as it is to define. The latter part of the statute — “authorized act” — suggests that if the officer lacked probable cause for the arrest, the subject has a defense, but that is normally not the case. However, if the officer used excessive force (another term that is rather poorly defined), the defendant might have a self-defense argument.
In the pre-body camera and social media era, most resisting cases boiled down to the defendant’s version of the events versus the police officer’s version, and the defendant had almost no chance of winning that argument. But today, there may be video evidence, and jurors, as a whole, are less deferential to police officers than they used to be.
What will the judge say upon reviewing the evidence against Charles? Perhaps more importantly, what will his wife say when he walks back through the front door?
Contact Aggressive Attorneys
Resisting arrest is a serious charge with serious implications. For a confidential consultation with an experienced criminal law attorney in Schaumburg, contact Glasgow & Olsson.
(image courtesy of JP Valery)