Samuel Goldberg has been a Massachusetts criminal defense attorney for 20 years. Prior to that, he was a New York state prosecutor. He has published various articles regarding the practice of criminal law and frequently provides legal analysis on radio and television, appearing on outlets such as the Fox News Channel, Court TV, MSNBC and The BBC Network. To speak to Sam about a criminal matter call (617) 492 3000.

Charged With Resisting Arrest in Massachusetts? What Should you Do?

Technically, resisting arrest is defined as the crime of using physical power to avoid arrest, handcuffing, or transporting the accused to jail.  In reality, any action to prevent one’s arrest or being taken into custody can leads to the charge.

Like the charge of disorderly conduct,  determining the bounds of resisting arrest is largely up to the officer’s discretion, keeping in mind state guidelines and laws.

In most states, including Massachusetts,  if the arresting officer exercises excessive force that result in “great bodily harm”, the accused has the right to defend him or herself.  Usually, the circumstances are considered from the standpoint of a “reasonable person”, meaning if someone reasonable would consider the officer to be using excessive force then it is considered just that. Of course, this is eventually for a judge or jury at trial to decide.

In the meantime, you may be in custody and are certainly facing criminal charges.  Especially if you have decided that excessive force is being used and fight back.  Then , you are likely to be facing charges for assault and battery on a police officer.

If someone is accused of resisting arrest, the crime can be considered a felony or a misdemeanor depending on exactly what the person who resisted officers did.  Misdemeanor is usually considered non-aggressive actions, such as fleeing from an officer or giving false identification (verbally or presenting false identification).  A felony charge would usually include violence toward officers or the threat to act violently and, again, include the charge of assaulting the officer.

In order to be successfully convicted with  felony charges, the prosecutor must  prove the elements of the crime beyond a reasonable doubt.   First is that the defendant deliberately acted in a way to impede his own arrest.  Second, violence was involved, meaning the accused either acted violently or threatened violence.  Thirdly, the officer was acting lawfully while making the arrest.  If these elements are proven, the state has a good chance of proving the defendant guilty of resisting arrest.  Defendants can attempt to prove themselves innocent through a few common defenses.  In order to prove self-defense, the defendant must prove that resisting arrest was followed by the arresting officer’s initial violent action towards the accused.  The person being arrested cannot be the first person to act violently.  Additionally, the arrestee can only use the amount of force necessary to subdue the officer from acting violently; he cannot further harm the officer more than the situation calls for.

 

Defendants can claim unlawful arrest if they can prove that the arrest is not authorized by law, i.e. making an arrest without a warrant or probably cause. This would be the subject of a pre-trial motion to suppress and/or dismiss.

Lastly, if the officer did not identify him or herself, the defendant could not intentionally resist arrest because he did not know it was an  officer making the arrest.  A defendant charged with these charges faces incarceration, fines, probation, and community service.

Remember, if you were being charged with a crime independent of the resisting arrest charges, you will still likely face prosecution for that crime.  Bringing claims of abuse of fore against the police does not equal a dismissal or acquittal of the original charge.

Even if you believe the arrest is unjustified, the easiest mode of action is usually to submit to the arrest and then find a good criminal defense lawyer who can evaluate your best options when proceeding with your case.  If you or a loved one has been charged with resisting arrest, call the experienced Boston criminal defense lawyers at Altman & Altman. Our attorneys are available around the clock.  We offer free initial consultations on all criminal defense cases.

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