In the Commonwealth of Kentucky, the crime of Resisting Arrest is defined in KRS 520.090. You may be found guilty of Resisting Arrest if you intentionally prevent (or try to prevent) a peace officer, recognized to be acting under color of his official authority, from effecting an arrest by (1) using or threatening to use physical force or violence against the peace officer or another; or (2) using any other means creating a substantial risk of causing physical injury to the peace officer or another.
In the definition above, I emphasized certain words or phrases because they are the aspects of the charge that a good criminal defense attorney may scrutinize to determine your best defense.
Did you “intentionally” try to keep a law enforcement officer from arresting you? In other words, did you know the individual was a peace officer? Did they verbally identify themselves as such, or was there a badge, insignia, identification card, police radio, or other police equipment that a reasonable person would recognize? Even plainclothes officers may be sufficiently identified by verbal notice or visible cues.
What is “under color of official authority?” This legal phrase refers to when, in the regular course of an officer’s assigned duties, he or she makes a judgment in good faith, based on the surrounding facts and circumstances, that he or she should make an arrest. The officer does not necessarily need to be “on the clock.” A duly licensed law enforcement officer generally has the authority to enforce the law 24 hours a day, seven days a week, but only after establishing his or her identity as a police officer. However, whether the officer was on duty of off duty could, potentially, be a factor in the case.
What does it mean to “effect” an arrest? An arrest is completed when a person has been detained, placed securely in custody, and is under the control of the police. If all of those steps have been accomplished, you cannot be convicted of resisting arrest, but if you strike out while even one of these is undone or is in process, you are resisting arrest. A case from the Kentucky Court of Appeals in September 2013 (Perdue v. Commonwealth) involved a man who had been handcuffed and was standing outside the open door of the cruiser when he “began yelling and spitting . . . cursed at [the officer], lunged at him, and tried to head-butt him.” The appeals court affirmed the trial court’s denial of a motion for a directed verdict on the charge of Resisting Arrest.
The Criteria for Resisting Arrest
News reports and crime logs of incidents in which Kentucky residents were charged with Resisting Arrest described the following behaviors that meet the definition of Resisting Arrest:
- Pulling away when officers tried to grab suspect’s arm
- Kicked an officer in the face
- There was a “scuffle” leaving officers with minor injuries
- Subject grabbed onto the officer`s uniform shirt
- Kicked the officer en route to the police car
- Threw a salt shaker and hit officer in the chest with it
- Resisted by swinging his arms
- Grabbed officer around his legs
Of course, some of these behaviors could result in a charge of Assault (3rd Degree) (Police Officer), a felony charge far more significant than Resisting Arrest, a Class A Misdemeanor.
What if the police were using excessive force in making the arrest?
A person may defend himself with as much force as reasonably appears necessary, but only in proportion to the amount of excess force being used on him. If the officer stops, the arrestee must stop. Also, if the person being arrested did something to cause or provoke the officer’s force in the first place, then he isn’t justified in resisting the arrest.
How We Can Help
Dan Carman has experience defending those who have been charged with Resisting Arrest. University of Kentucky students or other Lexington residents whose run-ins with law enforcement has led to a charge of Resisting Arrest should contact Dan at (859) 838-1415 for competent, aggressive criminal defense.