Resisting arrest is not a crime

“We need to get around this idea that you can resist arrest,” New York Police Department Commissioner Bill Bratton said last month. Speaking to state Senate committee members, he argued that resisting arrest should be elevated from a misdemeanor to a felony in order to prevent “potential injuries to the officer, to the suspect.” According to a New York Times report, New York City officers made 12,453 arrests in 2013 that included a charge of resisting arrest. In some cases resisting is the sole charge, the legal equivalent of a virgin birth. More often it’s appended to arrests for other infractions, allowing prosecutors to paint simple acts as prejudicially incriminating.

Bratton gets things exactly wrong. The penal system needs fewer restrictions on a person’s right to question, argue against and resist police, not more. The Justice Department’s just-released investigation of the Ferguson Police Department in Missouri found that over the course of 35,871 cases from 2012 to 2014:

Officers expect and demand compliance even when they lack legal authority. They are inclined to interpret the exercise of free-speech rights as unlawful disobedience, innocent movements as physical threats, indications of mental or physical illness as belligerence.

Such dysfunctions aren’t limited to Ferguson. They are endemic to police forces across the country, with officers using accusations of resisting to practice a kind of discretionary law enforcement based primarily on their faulty interpretations.

While laws vary by state, New York’s definition of resisting arrest is representative of the broad authority to criminalize a wide range of reasonable behavior — any intentional act that prevents or attempts to prevent a police officer from “effecting an authorized arrest of himself or another person,” the law states. At best, resisting arrest is a redundant charge already covered by overlapping misdemeanors such as obstruction of government administration and failure to comply with laws. In practice, resisting arrest laws reflect a clear racial bias behind the interpretation of civilian behavior. The Ferguson investigation reports that every defendant charged solely with resisting arrest was black and that 92 percent of all resisting arrest charges were made against black people. A WNYC survey found that in the course of arrest for drugs, petty theft and disorderly conduct, blacks are significantly more likely than whites to be charged with resisting. 

Police also use accusations of resisting as a license to inflict violence. An internal investigation by the L.A. County Sheriff’s Department reported that although close to half of charges related to obstruction (which includes resisting arrest) wound up being dropped, force was used against 32 percent of black people arrested and 19 percent of white people arrested. A survey of resisting arrest charges in San Jose, California, found that police used force on civilians in 70 percent of cases, but an independent police auditor found officers’ explanations for their use of force inadequate in almost a quarter of cases.

Amid protests over the July 17, 2014, killing of Eric Garner in Staten Island in New York by police officers, Mayor Bill de Blasio implored New Yorkers to submit peacefully to arrest, promising that “they will then have every opportunity for due process in our court system.” But criminal defendants rarely get their day in court. Of the 87,709 criminal cases terminated in 2012, only 3 percent went to trial, according to the United States Attorney’s Office. Ninety-three percent of cases resulted in conviction, almost always through plea bargain — a figure that has steadily risen from 75 percent in the early 1970s. Political science professor Marie Gottschalk has argued that courts can be even more inflexible than police, attributing the staggering rise in U.S. incarceration rates over the last 50 years to aggressive prosecutors armed with “mandatory minimums, three-strikes laws, truth-in-sentencing legislation, draconian sex offender measures, mandatory sentencing guidelines and life sentences.” Where in this system is there reasonable ground to defend oneself?

One of the most common arguments against decriminalizing resisting arrest is that a cycle of violence would ensue. Civilian aggression would endanger police, and heavily armed officers would have no recourse but to defend themselves with violence. This fantasy of a future in which police violence is the exclusive and inevitable outcome of civil conflict is really a warped reflection of what we already know but seldom acknowledge: Violence as a response to disagreement is already a de facto police tactic. Since police are given every advantage over civilians in defending themselves, the resulting violence is grossly one-sided rather than reciprocal.

Repealing resisting arrest laws is hardly the only reform we need. But it could be an ideal starting point, allowing us to reimagine the police-civilian power dynamic at point zero: the face-to-face street encounter from which everything else follows. New standards for determining criminal behavior are necessary, and we can’t afford to leave them to the sole discretion of the police. In many states, simply questioning an arrest may qualify as criminal, and even when civilians know the law better than an arresting officer, there’s no reasonable recourse for compromise or de-escalation.

Police are allowed more discretion than civilians, and they should be bound by a more stringent system of accountability. Since the legality of an arrest cannot be judged until months or years afterward, civilians bear an undue burden of having to accept all invasive actions from the police as a matter of course. There have been some efforts to push back in maximalist terms. A controversial 2012 law passed in Indiana made it legal to use deadly force against police in case of unlawful intrusion on private property. Other states have similar allowances, as with the Texas case of Henry Magee, who, thinking he was being robbed, killed a police officer who broke into his home in a drug investigation.

Thee cases highlight our need for meaningful forms of conflict resolution other than absolute violence. The most fruitful place to start would be to decriminalize resistance to arrest. If we’re serious about protecting citizens from violence, we must acknowledge how much violence comes from those claiming to enforce the law. There can be no meaningful peace in the streets until civilians are free to defend their rights against any threat, including — and most of all — the police.