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  • Writer's pictureBrian Foley

Montgomery County Criminal Defense Attorney -Resisting Arrest Can you resist police detention?

Montgomery County Criminal Defense Attorney - Brian Foley - Board Certified in Criminal Law

As a former prosecutor in Montgomery and Harris County I have reviewed thousands of Resisting Arrest charges. There is one issue that plagues much of this area of law. That is the conflict around Resisting detention. There is a difference between "arrest" and "detention." An officer has the right to detain you for a short investigation when he has reasonable suspicion that a crime may have been committed or is about to be committed. An "arrest" is when you are taken into custody after the officer establishes probable cause. Chapter 38.03 makes it illegal to resist arrest, search, or transportation. It does NOT make it illegal to resist detention.

Sec. 38.03.  RESISTING ARREST, SEARCH, OR TRANSPORTATION.  (a)  A person commits an offense if he intentionally prevents or obstructs a person he knows is a peace officer or a person acting in a peace officer's presence and at his direction from effecting an arrest, search, or transportation of the actor or another by using force against the peace officer or another.
(b)  It is no defense to prosecution under this section that the arrest or search was unlawful.
(c)  Except as provided in Subsection (d), an offense under this section is a Class A misdemeanor.
(d)  An offense under this section is a felony of the third degree if the actor uses a deadly weapon to resist the arrest or search. 

This is confusing to both police, prosecutors, judges, and defense attorneys because there is a prohibition on "Evading" arrest or detention.

Sec. 38.04.  EVADING ARREST OR DETENTION.  (a)  A person commits an offense if he intentionally flees from a person he knows is a peace officer or federal special investigator attempting lawfully to arrest or detain him.

When an officer has just been wrestling with you on the ground after detaining you during a traffic stop or for an initial investigation they do not want to hear about these intricacies of the law. However a charge of resisting will not be upheld in court if the officer had not clearly demonstrated through his words and actions that the defendant was in fact under arrest for a specific offense. Many times the police report affirmatively excludes this possibility by announcing, "I detained him for further investigation at which point he started resisting." This sentence kills a Resisting Arrest charge.

The difference between arrest and detention is slight and nuanced. The Court of Criminal Appeals has held that "[An arrest] occurs when taking into account all of the circumstances surrounding the encounter, the police conduct would have communicated to a reasonable person that he was not at liberty to ignore the police presence and go about his business." Florida v. Bostick, 501 U.S. 429, 437. Kaupp v. Texas, 538 U.S. 626, (2003) (Internal quotes omitted).

So does this mean that you can resist a police officer when he tries or attempts to detain you? I would not recommend it. For starters even if the officer is eventually proved to be wrong in court you are going to have a nasty few hours in jail at least and will probably come away from the incident with physical injuries. Additionally if you have a good prosecutor in the office they will change the charge to Interference with Public Duties. This offense does not make a distinction between arrest and detention and most likely will cover the conduct that the officer complains about if you use force against their attempts to investigate, arrest, or detain you.

Sec. 38.15.  INTERFERENCE WITH PUBLIC DUTIES.  (a)  A person commits an offense if the person with criminal negligence interrupts, disrupts, impedes, or otherwise interferes with:
(1)  a peace officer while the peace officer is performing a duty or exercising authority imposed or granted by law

Finally you should know that under Chapter 9 of the Texas Penal Code there is a defense to resisting police. This is true if the police use or attempt to use greater force than necessary to make the arrest or search and if the actor believes the force is immediately necessary to protect against this.

(c)  The use of force to resist an arrest or search is justified:
(1)  if, before the actor offers any resistance, the peace officer (or person acting at his direction) uses or attempts to use greater force than necessary to make the arrest or search;  and
(2)  when and to the degree the actor reasonably believes the force is immediately necessary to protect himself against the peace officer's (or other person's) use or attempted use of greater force than necessary.


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