What Counts as Resisting Arrest?
The Nebraska statutes criminalizing “resisting arrest” are broadly worded, so it’s important to know what counts as resisting arrest. Generally speaking, “resisting arrest” refers to conduct that intentionally prevents or attempts to prevent a law enforcement officer from effectively and successfully arresting an individual. Pursuant to Nebraska Revised Statute § 28-904, the law enforcement officer must be “acting under color of his or her official authority” when conducting the arrest in order for an accused person to be charged with resisting arrest.
If you are approached by law enforcement, the best course of action is to comply with the officer’s orders to avoid being charged with resisting arrest. That said, there are potential defenses to the charge of resisting arrest. An experienced and knowledgeable criminal defense lawyer at Berry Law can provide a free consultation to explore any and all potential legal remedies available to you.
Elements of Resisting Arrest
In Deezia v. City of Lincoln, the United States District Court clarified the elements of resisting arrest under Nebraska law. “Resisting arrest. . . is an offense which occurs when he or she uses or threatens physical force or violence against a peace officer while intentionally preventing or attempting to prevent the peace officer from effecting an arrest.”
When May I Be Able to Resist Arrest?
Pursuant to the Nebraska Revised Statutes § 28-904, a law enforcement officer is required to be “acting under color of his or her official authority.” In short, this means that if the officer is acting outside of the authority granted to them by state or city laws and ordinances, then a citizen may be entitled to a valid resisting arrest defense. That said, if a person attempting to effectuate an arrest identifies himself or herself as a police officer, you should comply with instructions even if you believe the officer is acting outside of their authority.
Furthermore, Nebraska Revised Statutes § 28-904 affords an individual the “affirmative defense to prosecution” of resisting arrest “if the peace officer involved was out of uniform and did not identify himself or herself as a peace officer by showing his or her credentials to the person whose arrest is attempted.” This is why, even when officers are in “street clothes”, they will often wear their police badges around their necks under their clothing. This allows the officers to flash their badges at a moment’s notice to effectuate an arrest. In this scenario, when an officer shows you a badge, you must comply with commands even though the officer is not wearing a uniform. Identification of oneself as an officer and the display of a badge is sufficient to trigger your obligation to comply with the officer’s lawful orders
In short, defenses to the charge of resisting arrest can be nuanced and difficult to prove. Compliance with officer’s commands is recommended, with the potential option of pursuing “False Imprisonment” claims against the city or state pursuant to Nebraska Revised Statute § 28-314 if an officer wrongly arrests or detains you.
Requirements for a Lawful Arrest
Law enforcement officers are given broad authority to arrest individuals pursuant to the various laws in any given state or city. Vital to any question of whether an arrest is lawful or not is the existence of “probable cause to arrest under Nebraska law.” Deezia v. City of Lincoln, 350 F.Supp.3d 868 (Neb 2018).
Probable cause finds its roots in the Fourteenth Amendment of the United States Constitution. It is a requirement that generally must be met before law enforcement officers can lawfully effectuate an arrest. As defined by the Legal Information Institute of Cornell Law School, probable cause is established “when there is a reasonable basis for believing that a crime may have been committed”.
Notably, there are exceptions to the probable cause standard under the Fourteenth Amendment. In United States v. McConney, “exigent circumstances. . . [are] circumstances that would cause a reasonable person to believe that entry (or arrest) was necessary to prevent physical harm to the officers or other persons, the destruction of relevant evidence, the escape of the suspect, or some other consequence improperly frustrating legitimate law enforcement efforts.” While law enforcement officers are generally held to the low standard of probable cause, certain circumstances will eliminate the standard and permit them to place officer safety or public safety above the important element of a probable cause.
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What if I Believe I Was Unlawfully Arrested?
If you believe you were unlawfully arrested or detained, there may be legal remedies available to you, particularly if you suffered significant damages as a result. At Berry Law, the criminal defense attorneys are knowledgeable and well-suited to provide legal assistance in navigating the unique circumstances of your case.
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