What Counts as Resisting Arrest?

What Counts as Resisting Arrest?

In Nebraska, any violent threats, use of physical force, or other means that create a risk to police officers to prevent arrest can be charged as “resisting arrest” by law enforcement. This could be anything from actively running from law enforcement to taking a swing at an officer when he approaches with handcuffs. Even if someone is being completely compliant, he or she could be charged with resisting arrest if a member of law enforcement perceives any show of reluctance as threatening or endangering in any way.

Sometimes an arrest doesn’t even need to be in progress for this charge to be made. There are limitations to this, however, and many defenses can be made against such a charge.

What Does the Prosecutor Have to Prove?

In a resisting arrest case, the prosecutor must produce convincing evidence for a number of elements to secure conviction:

  1. The defendant purposely resisted arrest, even if the end results or harm caused was not intended. This excludes accidents or miscommunication from being used as a basis for prosecution.
  2. The defendant acted or threatened to act violently toward law enforcement. Striking or pushing an officer satisfies this requirement. Threatening to do so or indicating use of a weapon also counts.
  3. The officer was lawfully discharging his or her official duties. This means the officer was engaged in official duties, such as making a traffic stop or investigating a crime. If an officer is performing his or her duties and arrests the wrong person for a crime, resisting arrest can still be charged.

Penalties for Resisting Arrest

In Nebraska, resisting arrest can be classified as either a Class I Misdemeanor or a Class IIIA Felony, depending on the circumstances surrounding the charge.

If it is a first-time offense, it will generally be charged as a Class I Misdemeanor, which is punishable by up to one year in jail or a fine up to $1,000. A second or subsequent offense will be charged as a Class IIIA Felony, punishable by up to three years in jail and 18 months post-released supervision or up to a $10,000 fine (or both).

The offense is automatically classified as a Class IIIA Felony if the accused resists arrest through use of a deadly or dangerous weapon.

Defenses to a Resisting Arrest Charge

The key to defense against resisting arrest charges is remembering that these charges hinge on resisting an officer of the law as he or she is lawfully executing his or her duties. That being said, there are many ways to challenge a resisting arrest charge:

  1. The accused can argue that he or she was acting in self-defense if the officer was using excessive force under the circumstances. Police officers are entitled to use the amount of force necessary to accomplish an arrest, but anything beyond that is unjustified. For example, if the arresting officer attempts to shoot the unarmed arrestee, the arrestee may fight back.
  2. In some situations, a person may resist an unlawful arrest, but only with reasonable force (or the amount of force necessary to successfully resist the arrest). An unlawful arrest is one that is not authorized by law (without a warrant or probable cause, for example).
  3. Often, the accused will feel as if the arresting officer made false allegations. For example, if the arrestee was flippant or rude, provoking the officer, who filed resisting arrest charges as retaliation, the charge isn’t likely to hold water. Of course, it helps to have witnesses to back up statements such as these – otherwise it’s just an alleged criminal’s word against a law enforcement officer’s.
  4. If the officer did not identify him or herself as a member of law enforcement before making an arrest, it’s not possible for an arrestee to intentionally resist an officer. This often comes up in cases involving undercover operations.

Hiring a Criminal Defense Attorney

Determining guilt or innocence is difficult in resisting arrest cases, especially when the defense brings experience and executes a careful investigation. An attorney can evaluate the strength of the prosecution’s case and plan accordingly.

Berry Law has been defending the Constitutional rights of clients since 1965. Thousands have trusted our firm with their cases and, more importantly, their futures. If you have been charged with resisting arrest, contact us today to schedule a consultation.

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