Resisting Arrest

We represent individuals charged with resisting arrest. Under Massachusetts General Laws chapter 268, § 32B, an individual commits the crime of resisting arrest if he knowingly (meaning he must know the person is a police officer) prevents or attempts to prevent a police officer who is acting under the color of his official authority from effectuating an arrest either by (1) using or threatening physical force, or (2) using any other means that creates a substantial risk of causing bodily injury to the police officer. The crime of resisting arrest carries a maximum penalty of 2 ½ years’ imprisonment and a $500 maximum fine.

In the past, it was the rule in Massachusetts that a person had a right to use force to resist an unlawful arrest. In 1983, however, the Massachusetts Supreme Judicial Court changed that rule, holding that an individual may not resist an arrest even if the arrest itself was unlawful. Commonwealth v. Moreira, 388 Mass. 596 (1983). By changing state law, the Court sought to discourage resort to “self-help” – people fighting police officers making illegal arrests – and instead encourage those illegally arrested to use the court system to vindicate their rights after the fact.

That decision, however, does not apply to cases in which the police officer uses excessive force in making an arrest. In that situation, an arrestee may defend himself by employing the degree of force that reasonably appears to be necessary under the circumstances.

An arrestee who believes that he was arrested with excessive force may bring a civil action against the officers in question for a violation of civil rights under 42 U.S.C. § 1983. An arrestee subject to an illegal arrest may also seek the suppression of any evidence seized by police officers or incriminating statements made by the defendant because of that illegal arrest. An arrestee charged with resisting arrest may plead self-defense as an affirmative defense and argue that the level of force used in “resisting” the arrest was reasonable in light of the force used by the officer to effect the arrest. Finally, under the 2018 Criminal Justice Reform Act, defendants with convictions for resisting arrest now have the right to have those records sealed.

The contours of the law on resisting arrest are highly fact-specific and will apply differently in each individual case. For example, an individual may argue that they were not being placed under formal arrest at the time that they resisted the officer, that the officer was not acting under the color of his official authority, or that some degree of intoxication precluded the defendant from knowing that the person they were engaging with was a police officer. The potential applicability of these defenses depends upon the circumstances of each case. We have considerable experience in defending against the charging of resisting arrest and are familiar with the many defenses available to those charged with this crime.

If you have been charged with resisting arrest, please contact our attorneys at (617) 742-6020.

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