You Never Have A “Right” To Resist Arrest

In this new era of protesters “occupying” public space all over cities and then getting arrested for various minor offenses, I though it’d be useful to discuss citizens’ rights to resist what they believe to be an unlawful arrest.  That’s actually pretty easy — There is no such right.  The idea that people have a right to “passively” or “peacefully” or, worse yet, physically resist law enforcement is a myth, at least in Iowa.

If a law enforcement officer tells you to do something, you have to do it, or else you’re committing a crime, no matter how much you believe that the officer lacks authority or is acting unlawfully.  And Iowa Code 804.12 specifically criminalizes resistance to any arrest regardless of how unlawful you may think that arrest is:  “A person is not authorized to use force to resist an arrest, either of the person’s self, or another which the person knows is being made either by a peace officer or by a private person summoned and directed by a peace officer to make the arrest, even if the person believes that the arrest is unlawful or the arrest is in fact unlawful.”

A number of Iowa appellate court decisions have said basically the same thing.  For example, in the 1997 decision in State v. Brecunier, the Iowa Supreme Court noted that the defendant “incorrectly believed the right to resist the police was reposed in him, when in fact the law gives the officer the right to make an arrest based on probable cause. . . .”

There are two primary reasons for this law.  First, officers’ safety is a paramount consideration.  People always think that their arrests are unfair or unlawful; if citizens then had a right to duke it out with law enforcement every time they held that belief then a lot of officers and citizens would be hurt.  Second, the streets are not the time or place for a debate on the legality of an arrest or whether the arrestee has committed a crime.  Those are matters to be determined in courtrooms by judges and juries.

Resisting an officer’s commands or attempt to arrest you can actually lead to legitimate criminal charges against you, even if the officer’s commands were unlawful or there initially was no probable cause to arrest you.  Because disregarding law enforcement commands or resisting arrest are crimes under any circumstances, resistance to even an unlawful arrest gives police probable cause to arrest you for resisting arrest, which means you can resist yourself into a jail cell even if you otherwise would have gone free had you not resisted the original attempt to arrest you.

Please feel free to contact me if you have a police matter that you’d like to discuss involving a personal injury or wrongful death claim for you or a family member.  I’d be happy to see if I can give you a hand.