Resisting Unlawful Arrest?
Today’s discussion is about a Facebook post a friend shared. It’s one of those clickbaity-type kind of sites but I’m a sucker for articles on criminal defense and police interaction. The article is about the arrest of Sandra Bland (who later died in a jail cell). The article my friend shared can be read here.
The article is a discussion with criminal defense attorney, John Hamaski of San Francisco, about the stop of Ms. Bland and the Fourth Amendment in general. Mr. Hamaski is an experienced attorney and as far as I can tell his analysis of the unlawful escalation of the stop is spot on.
However where I differ from Mr. Hamaski is here:
“If an officer is behaving unlawfully, you can use a reasonable amount of force to defend yourself. You can’t punch an officer in the face if he tries to handcuff you–that’s not reasonable. But your ability to defend yourself exists regardless of an officer’s badge.”
This advice, in my humble opinion, is insane. It’s insane because 1) it won’t do anything, and 2) it will get you killed. Allow me to elaborate.
Resisting an “unlawful” arrest won’t do anything because there is no situation where an officer who has decided to arrest you will be persuaded by your resistance to give up. No officer is going to throw his hands up in defeat to your “reasonable amount of force” and let you go on your merry way. Either he will escalate his force to overcome yours, or call in backup who will then overwhelm you. In any event you will end up in handcuffs in a cell (or worse).
Secondly, and far more importantly, adding violence to a situation with a police officer gets out of control very quickly. As in, here comes the tasers and firearms quickly. Besides your lack of training, likely you are literally outgunned. It’s a fight you cannot win, and many people who have tried have ended up hurt or dead in the scuffle.
The other problem with this advice is that it requires you, an ordinary citizen, to make a fairly complex constitutional analysis while interacting with a police officer. The standard for probable cause to arrest is notoriously fluid, i.e. it’s very fact-specific. In other words, just because you think an arrest is unlawful doesn’t mean a judge will agree with you. But even if an arrest was, on the balance, unlawful you could still be charged with new crimes based on your resistance that exist independently of the original reason for the encounter. What’s the point of getting a misdemeanor dropped if you picked up a bunch of felonies along the way?
Now all this isn’t to say you should be cooperative as possible. You have no obligation to answer questions that could incriminate you, which is basically anything past your name and address. You have no obligation to consent to allowing your car to be searched, or in any way helping the police acquire evidence against you.
HOWEVER. You can make these choices politely and peacefully. Declining to answer questions requires neither rudeness nor violence. Doing either escalates what is already a tense encounter. When one of the parties has a gun, that’s bad.
And what if the arrest was unlawful? Then you get to go home. No charges filed or no charges that stick. Talk to a lawyer and let them do their job. It might not be instantaneous but at least you won’t be in the hospital or the morgue.
If you’re interacting with the police, stay calm and don’t use violence. And if you or someone you know ends up arrested, give a lawyer a call.