Resisting Arrest?

I hope someone out there can answer this question.

How does one get arrested for just resisting arrest?  Not for resisting arrest along with something else.  Just resisting arrest.  How is that possible?

In the Alabama Code, here is the law:

Section 13A-10-41 – Resisting arrest.

(a) A person commits the crime of resisting arrest if he intentionally prevents or attempts to prevent a peace officer from affecting a lawful arrest of himself or of another person.

(b) Resisting arrest is a Class B misdemeanor.


Now, there would seem to me, who is not a lawyer, that there are several important aspects to this law.  First is intentionally.  You must want to resist the arrest.  However, that’s not how it is used in reality.  If you so much as pull away from an officer as they try and grab you, then you can be charged with resisting arrest.  Even if the pulling away was completely instinctual.

Second, it is who is being arrested.  On that point, I get at least one case where you could get charged with just resisting arrest, and that’s if you interfere with the arrest of someone else.  But that’s not really the situation I’m talking about.  I’m talking about a situation where there is just you and an officer, and you get charged with resisting arrest.

The last part is the lawful arrest.  For an arrest to be lawful, the officer must have probable cause a crime has been committed.  So how can you be arrested for the crime of resisting arrest if there is no probable cause of a crime?  It’s a catch-22.  Actually, it means the officer didn’t have probable cause, tried to arrest you.  But without probable cause, it wasn’t a lawful arrest.  Now, they may have had probable cause for something else, I suppose, but then they should have arrested you for that, and not for resisting arrest.  Or at least, in addition to resisting arrest.

Contempt of Cop

I suspect that most of the “just” Resisting Arrest charges are actually contempt of cop arrests.  There is no law for contempt of cop.  Instead, the concept is that if you give a police officer a hard time, he will arrest you just because you are being difficult.  There are several charges that often get thrown into the “Contempt of Cop” category, including resisting arrest.  Others are obstruction of justice and refusing a lawful order.  Those are harder to use in Alabama, since the only obstruction of justice law I could find in the Alabama code is Obstruction of Justice Using a False Identity and Obedience To Police Officers and Firemen.  In the Obstruction law, it only applies if you falsely identify yourself to an officer.  In the Obedience law, it is limited to traffic direction.

Investigative Detention

I can imagine you might get charged with resisting arrest if you are held on an investigative detention.  This seams a bit of a stretch to me, since the level of cause is less for an investigative detention than it is for a full arrest.  An investigative detention, or Terry Stop, is where the officer has a reasonable suspicion you’ve committed a crime and is detaining you for further investigation.  Reasonable suspicion is a lower standard than Probable Cause.  Perhaps case law has extended resisting arrest to include Terry Stops as well.

3 thoughts on “Resisting Arrest?

  1. The law is similar in the UK – but I think that they only proceed with the charge of resisting arrest if they are being charged with the offence for which they were arrested in the first place – ie if the arrest was lawful but there isn’t enough evidence to proceed with the main offence, they usually let the offence of resisting arrest go.

    If the arrest was unlawful, then to proceed with a charge of resisting arrest would be very dangerous territory!

    • I’m convinced that in the vast majority of cases, the resisting arrest charge, whether alone or with some other minor charge, is almost always the result of contempt of cop. Alabama, unlike some other states, has a single law. Other states have a two tiered system. The lower law is nonviolent resisting arrest. Then resisting arrest, which implies violence. The lower level is the contempt of cop charge.

      Some, I’d imagine, is brought on by the suspect. Frankly, I’m completely meek and compliant when faced with the police. That is to say, I follow all orders and do my best to appear non-threatening. I always, kindly, explain that I will not speak to them without my lawyer present, they do not have my consent to search me, and I am exercising my right to remain silent. Oh, and by the way, am I free to go?

      • I think that here you have to fight back to resist arrest here – so you’d get assault against police too.

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