Criminal Defense

Is it Still Resisting Arrest If Police Use Excessive Force?

August 26, 2023 by Seppi Esfandi in Criminal Defense  Rights  
Thumbnail for: Is it Still Resisting Arrest If Police Use Excessive Force?

Is it Still Resisting Arrest If Police Use Excessive Force?

If you can provide evidence indicating that your actions were in self-defense, it is appropriate for you to resist an arrest. To substantiate this defensive stance, it is incumbent upon you to demonstrate that you held a reasonable belief in the officer’s employment of unwarranted force and that your subsequent actions were imperative to prevent potential fatality or severe harm to oneself.

In addition, it is important to demonstrate that you utilized the minimal amount of force indispensable to safeguard oneself from the potential harm of death or grave physical harm. This criterion represents an impartial benchmark whereby the jury shall ascertain whether a rational individual, placed in your specific situation, would have reasonably concluded that self-defense was necessary and justified. If an individual’s reaction to a situation aligns with what a reasonable person would have done, it is impossible to be found guilty of resisting arrest.

An officer can only use force within specific rules and guidelines. These rules are mainly derived from the United States Constitution, federal and state laws, and policies and orders of the police department.

A police officer’s decision to use force is always determined by the behavior of the person involved, meaning that the officer will respond accordingly. If a civilian resists or poses a threat, an officer is permitted to use more force accordingly.

“Resisting Arrest” Covers Many Different Actions

To resist arrest, you must disobey what the officer asks, like not following their instructions to put your arms behind your back or refusing to get out of your car when told to do so. This is called “passive resistance.” This allows the officer to apply the required amount of force to apprehend the individual. This might mean using his hands to make the subject put their arms behind their back for handcuffing or to take the subject out of the car.

Suppose a person fights against being arrested, like stopping an officer from putting their hands behind their back, stiffening their body, or walking/running away. In that case, they are called an “active resister.”

When the resistance grows, the officer can use more force, but they only use as much force as needed to arrest the person. Depending on the situation, the officer can use non-deadly force, such as techniques to cause pain, hitting with a baton or asp, and hitting with an open hand.

Only “Reasonable Force” Should Be Used

The use of force should only be reasonable and necessary to ensure the capture of the individual, depending on the particular circumstances of the situation. If a person is moving their arms to stop themselves from being handcuffed, an officer is not allowed to punch them.

Clearly, an officer cannot use lethal force to apprehend someone. The main reason why an officer can use deadly force is if they have a good reason to believe that a person is about to seriously hurt or kill the officer or others nearby.

A jury would decide if a normal officer would have thought the same way in those conditions. ‘If they think the officer’s belief was unfair, he has used unfair force.’

In simpler terms, police should only use force when necessary and justified. Using excessive force that is not reasonably needed to make someone obey breaches the individual’s constitutional rights. And that’s the case, no matter if the person was fighting back or not.

If someone refuses to be arrested or cooperate, the officer is still legally obligated to carry out their duties. He needs to obey the Constitution, relevant laws or police department rules when it comes to using force.

The issue with simple and catchy headlines such as “If you want to avoid being shot by the police, just comply with arrest” is that they can blur the distinction between practical advice and the legal responsibilities of law enforcement. Police officers are allowed to use different levels of force depending on the situation. We have often observed that when a civilian resists moderately, the officer responds with excessive and unreasonable force.

In California, according to Penal Code 148(a), you can be accused of resisting arrest even if you didn’t resist, delay, or obstruct the officer while they were doing their job. Even if you are rude or uncooperative during an arrest or investigation, it is not enough to prove you are guilty of the offense. However, the police officer arresting you may exaggerate what happened to punish your disrespectful behavior towards the law. Hiring a skilled lawyer specializing in criminal defense helps you avoid unnecessary accusations by investigating to prove you’re not guilty.

Need an Attorney? CALL NOW: 310-274-6529

Seppi Esfandi is an Expert Attorney who has over 22 years of practice defending a variety of cases.

Contact Us:         
Esfandi Law Group QR Code
Esfandi Law Group
Lara S.
December 3, 2019
Seppi had my case reduced to just an infraction, and thanks to him I was able to keep my job. Jorge was extremely helpful too, the reason I went with this law firm. Overall pleased.

How to Win Your Case

We cannot stress enough that you read, understand and follow these 10 basic rules if you are criminally charged or under investigation:

  1. Don’t ever talk to the police
  2. Do not discuss your case with anyone
  3. Everything you tell your lawyer is confidential
  4. Tell police you need to contact your attorney
  5. Never consent to any search by the police
  6. If the police knock on your door, don't answer!
  7. Realize the consequences of a criminal conviction
  8. Your lawyer (not you) will contact any witnesses
  9. Information on your cell phone is evidence
  10. Early Intervention is the key

Get a Free Consultation

    Free Consultation Form