How Police Abuse the Charge of Resisting Arrest
We must reject the current legal regime under which resisting arrest is so widely accepted as a justification for police brutality and officer shootings.
June 29, 2020
Jun 29, 2020
17 Min read time
We must reject the current legal regime under which resisting arrest is so widely accepted as a justification for police brutality and officer shootings.
Police officers often use the charge of “resisting arrest” to criminalize black people who try to defend themselves from brutal, punitive, and often illegal police actions. They also do so to justify the violence it takes to compel compliance—even if that violence results in taking a life. The Minneapolis officers who killed George Floyd, for example, claimed that he refused to get into the squad car when ordered to do so. But Floyd was claustrophobic. He knew that if the officers claimed he was resisting arrest, they could use violence to force him into the car. He tried to save his life by telling the officers that he was not resisting arrest, that he was claustrophobic. Instead, armed officers pinned him to the ground, and Derek Chauvin killed him.
Today, resisting arrest typically only counts as lawful self-defense when one is protecting oneself against excessive force. In practice, that is the moment when it is already impossible for individuals to protect themselves.
Today, resisting arrest typically only counts as lawful self-defense when one is protecting oneself against excessive force. In practice, however, the moment an officer’s violence goes from “reasonable” to “excessive” is the moment when it is already impossible for individuals to protect themselves. When would Floyd have been able to exercise his right to self-defense against the officers who refused to let him breathe? He was handcuffed before he was on the ground; he was already unable to defend himself. The moment Floyd’s resistance would become lawful is precisely the moment it is too late, the moment he can no longer defend himself. The right to self-defense in these interactions is thus a fiction: it gives the illusion of accountability but in fact protects no one.
Understanding how this came to be helps to shed light on the wider repression of black self-defense in the face of policing as an activity of racial social control. For instance, a New York Times article revealed that between 2009 and 2013 in Greensboro, North Carolina, police charged 836 black people (but only 209 white people) with “resisting, delaying, or obstructing” as their only charge. NBC7 found that over the last seven years in San Diego, California, African Americans were ten times more likely than whites to be arrested for resisting arrest. Tellingly, a study in Chicago based on police officer’s own descriptions of more than 60,000 incidents revealed that officers used force more often against blacks even though they offered less levels of resistance than whites. As law professor Scott Holmes argues, “officers use the Resisting charge as a discretionary tool to suppress dissent and penalize vulnerable arrestees. The Resisting charge epitomizes the way that policing of poor people and people of color is more about social control than public safety.”
Resisting arrest was not always such an easy legal go-to for law enforcement officers, particularly when the arrest itself was groundless. Legal scholars such as Kindaka Sanders, Craig Hemmens, and Daniel Levin remind us that the right to resist an illegal arrest—not just one executed with excessive force—has a long heritage in English and American common law. In this tradition it was understood that an illegal arrest was enough provocation to make someone so understandably furious that the wrongly accused might use violence (or reasonable force) to resist that arrest. In fact, in England, The Queen v. Tooley (1710) established that witnesses who violently confronted officers who were illegally arresting someone else were also justified in their anger. It was understood that witnessing injustice would understandably compel compassionate, law-abiding people to forcefully intervene. This is not to say we ought to return to the common law of the past—a great deal separates us from eighteenth-century England, of course—but only to denaturalize the current legal regime under which resisting arrest is so widely accepted as a justification for police brutality and officer shootings.
This earlier interpretation of resisting arrest starts to shift in the United States with the Uniform Arrest Act in 1941. Drafted by a committee formed by the Interstate Commission on Crime to provide a model for states to change their laws on officer arrest, the Uniform Arrest Act intended to regularize law on the books so that it matched how police officers were arresting people in practice. One of the changes the committee, which drafted the act recommended, was to take away the right to resist an illegal arrest not only because it was outdated, but also because, it was argued, innocent people do not resist (an illegal) arrest—only guilty people resist (lawful) arrest. This idea becomes part of academic and legal conversations in the 1960s with the Model Penal Code—a project of the American Law Institute, founded in 1923 by University of Pennsylvania Law School dean William Dean Lewis to clarify and simplify common law in the United States. A decade in the making, the Model Penal Code was published in 1962 and has influenced the law in several states. Among its recommendations was that state criminal laws should make it illegal to resist an illegal arrest. In essence, the Model Penal Code suggested that states change their laws in ways that would provide officers not just the legal justification and legal protection for beating suspects and issuing false charges but also the ability to turn law-abiding people into criminals.
Resisting arrest was not always such an easy legal go-to for law enforcement officers. The right to resist an illegal arrest—not just one executed with excessive force—has a long heritage in common law.
According to Hemmens and Levin, after these developments the right to resist an unlawful arrest began to be reinterpreted as the right to self-defense against a police officer using excessive force. The right to “self-defense” against an officer limits lawful resistance to protecting oneself from excessive police violence; the right to resist an illegal arrest, by contrast, had entailed the right to refuse to follow an officer’s order, the right to run away from being illegally arrested, the right to refuse to talk to an officer when there’s no reason for an arrest, or the right to demand proof that an officer has probable cause or reasonable suspicion for the arrest. In twenty-three states today, however, it is explicitly a crime to resist an illegal arrest. Residents in these states risk acquiring a criminal record if they engage in any one of these very human, completely understandable, absolutely nonviolent acts that question police authority.
In other states, including Wisconsin, Minnesota, and Georgia, the legal language about resisting an illegal arrest is not as explicit, so it is possible in some cases that the charge of resisting arrest can be dropped if the arrest itself is proven to be unlawful in court. Still, those who are accused might be pressured to take a deal and plead guilty or no contest to crimes they did not commit because it is expensive, time-consuming, and emotionally exhausting. As Malcolm M. Feeley writes in The Process is the Punishment (1992): “Pretrial detention, bail, repeated court appearances, and forfeited wages all exact their toll on the criminally accused.”
The Model Penal Code also recommended complete obedience among targets of arrest because, it was argued, misconduct by officers shouldn’t be discussed on the streets but handled by the courts. President Trump, in fact, made this very argument on Fox News in reference to the recent case of Rayshard Brooks: “You can’t resist a police officer, and if you have a disagreement, you have to take it up after the fact.” What Trump and many others fail to realize, however, is that not only are black people unjustly over-policed in the first place, but also that the very structure of the criminal justice system makes it extremely difficult to hold officers accountable when such “disagreements” violate people’s rights. As Somil Trivedi and Nicole Gonzalez Van Cleve have argued, because prosecutors rely on police to win their cases, there has emerged a “codependent relationship between prosecutors and police that prevents accountability for police violence and misconduct against the public.”
Essentially, the Model Penal Code’s recommendations helped to redefine how people could legally interact with police—regardless as to whether those interactions were lawful or unlawful, violent or nonviolent. While common law recognized reasonable force and understandable anger when affronted with obvious injustice, corruption, and abuses of state authority, the Model Penal Code recommended that everything except excessive force should be met with absolute compliance. Coupled with self-defense statutes that protect officers from legal repercussions, the crime of resisting arrest empowers officers to use force, emboldens officers to be violent, and protects officers from the consequences of their own actions.
We must denaturalize the current legal regime under which resisting arrest is so widely accepted as a justification for police brutality and officer shootings.
Making it illegal to resist an illegal arrest enables law enforcement to turn anyone into a criminal—subjecting them to the brutal range of harms of contact with the criminal justice system. A person’s innocence does not determine the lawfulness of an arrest, which instead turns on probable cause or reasonable suspicion. In other words, innocent people who resist being arrested for crimes they did not commit can still end up with a criminal record for resisting arrest. Because resisting arrest also justifies violent actions that police decide to take, the charge makes it extremely difficult for people to defend themselves and others against officers. Judges and juries generally defer to officers when determining whether someone is resisting arrest, so it is very difficult for victims to prove that they were not resisting arrest. As Hemmens and Levin put it, “authority follows the badge, not the law.” Moreover, it is also almost impossible to prove that resisting an arrest was justified on the grounds of excessive force, since in Graham v. Connor et al. (1989) the Supreme Court ruled, “The ‘reasonableness’ of a particular use of force must be judged from the perspective of a reasonable officer on the scene, rather than with the 20/20 vision of hindsight.”
Taken together, these facts make black people horrifically, and legally, vulnerable to police brutality, violence, and death.
• • •
This legal regime must be understood in the larger history of black freedom struggles and their continuous efforts to defend black communities against repressive police violence, both on a day-to-day level and during times of political movement. It is not a coincidence that these changes in the law—which, in practice, criminalize acts of self-defense against illegal arrest—took shape alongside the civil rights, Black Power, and anti-war movements.
During the postwar era in Milwaukee, Wisconsin, for example—as in much of the nation—law enforcement harassed black residents frequently, extensively, cruelly, brutally, and indiscriminately. The constant oppressive presence of police in black neighborhoods exerted control over every aspect of black social life, criminalizing African Americans’ relationships to each other and to their own neighborhoods. To combat this state of affairs, during the civil rights movement some black activists made it known that they were going to protect themselves and protesters against civilian and state violence to keep themselves and the people they marched with safe. In 1967 civil rights protesters in Milwaukee marched for fair housing every day for 200 days across the 16th Street bridge into jeering white crowds who tried to deter them by throwing bottles, feces, and punches. Each time they marched they were protected by NAACP Commandos, a disciplined cadre of young African American men who described their protective actions to guard marchers not as nonviolence but as “not violence.”
This legal regime must be understood in the larger history of black freedom struggles and their continuous efforts to defend black communities against repressive police violence.
A philosophy of direct action rooted in the knowledge that white individuals and law enforcement use physical violence as a tool to maintain black subordination, “not violence” spoke to the priority of organized self-defense, the commitment of people in the movement to protect civil rights marchers from predictable harm. In the face of hostility from white South Siders and the police, who burned activists’ Freedom House to the ground with incendiary tear gas canisters, Commandos promised to exercise protective force to make sure there was “not violence” against the leadership, elders, clergy, children, and teenagers walking in the march.
The possibility that African Americans would defend themselves and others against violence was important because little was done to punish white supremacists and agents of the law, who violated, beat, and assassinated activists of color and members of the communities they fought for. Instead, the legal system protected those who killed young people of marginalized and oppressed groups while activists and the lawyers who defended them were charged with and often framed for committing crimes they did not commit—or for resisting arrest. Such charges were used to criminalize activism and provide law enforcement the legal reasoning they needed to use violence to suppress community leaders. Representing black activists as violent criminals who resisted arrest diverted attention away from movement demands, discredited all the community work activists did, and in some cases even delegitimated the activists’ organizations.
Historian and activist Yohuru Williams details a violent confrontation between members of the Milwaukee Black Panther Party (BPP) and the police in Milwaukee in 1969. The event that ignited this controversy occurred when police charged Black Panthers Jesse Lee White, Earl Walter Leverette, and Booker Collins for resisting arrest. According to the officers, the BPP members were pulled over because their car matched the description of another that had allegedly shot at a patrolman. As Officer Thomas Lelinski arrested the men, Lieutenant Raymond Beste pointed a shotgun at them. Lelinski claimed that White shoved him and tried to escape, encouraging Collins and Leverette to enter the struggle at the exact same time that police backup arrived. The officers claim they used appropriate force and quickly squashed the conflict.
Making it illegal to resist an illegal arrest enables law enforcement to turn anyone into a criminal—subjecting them to the brutal range of harms of contact with the criminal justice system.
White, Leverette, and Collins told a different version of the event. According to these targeted BPP members, when the rest of the police arrived, they had already been handcuffed by the arresting officers. All the officers—those who arrested them as well as the other twenty officers who arrived as backup—proceeded to beat the already handcuffed men with “fists, firearm butts, and blackjacks.” White, Leverette, and Collins were charged with the misdemeanor charge of resisting arrest. Williams explains that this confrontation and the legal trial and appeal that followed exhausted the chapter’s resources and energy, which then decimated their membership and soon resulted in the local party’s disbandment by the national offices of the BPP. While it is possible that Lelinski and Beste may have had reasonable suspicion to arrest White, Leverette, and Collins, it is also clear that there was no evidence to connect them to the alleged shots fired from a car that supposedly looked like theirs. The only “crime” White, Leverette, and Collins were charged with—the only one that stuck on appeal—was resisting arrest.
This history repeats itself in Milwaukee today, where police have targeted community defender Frank Sensabaugh, better known as Frank Nitty II, who has demonstrated the capacity to move large numbers of black, white, brown, and Native residents to peaceful protest. As Nitty marched earlier this month with hundreds across a downtown bridge, officers with the Milwaukee County Sheriff’s Department tear-gassed and violently arrested him while he was livestreaming. According to Nitty the police are investigating charging him with felony resisting arrest. Apparently, the officers, dressed in riot gear and body armor, hurt themselves while slamming Nitty’s prone and complying body to the ground. Nitty’s body itself, all by itself, is narrated as an automated weapon that is somehow able to “assault” officers while lying on the ground.
• • •
Black community defenders know that the tactic of the charge of resisting arrest has been used continuously since the civil rights and Black Power eras to repress front-line political activists by making them vulnerable to acts of police harassment and illegal arrests from which they cannot defend themselves in the moment without risking their bodies, minds, and lives. For African Americans, Latinxs, Asian Americans, Indigenous peoples, and queer and trans people of color, self-defense has always been necessary because they were targets not only of white supremacist, homophobic, and transphobic vigilante violence but also of both federal and local law enforcement. Militant activisms from the 1950s to the 1970s were largely a response to state-sanctioned violence, police harassment, assaults, and killings as well as to the failure of legal and political systems to redress these callous injustices.
The movement sparked by the police killing of Floyd is creating the context, commitment, and the power for black people to save their lives and the lives of others from the police.
Black community leaders today thus rightly situate talk of “resisting arrest” within the larger pattern of institutional repression of black neighborhoods on a daily basis—leaving people vulnerable to being criminalized or killed during “stop and frisk”–style encounters with the police, while hustling in the informal economy, or being policed as they move within and between white and black city spaces, or being harassed as they enjoy time with one another when the work day or the school day ends. Thus Vaun L. Mayes, a respected community activist in Milwaukee, immediately responded to Floyd’s killing with a call for law, policy, and legislation to allow for legal defense against unlawful arrest. As Mayes says, “I think you should be able to defend yourself against abusive police. For instance, if a cop violates my rights and is violent with me, I have a right to defend myself.” Here Mayes harkens back to the “not violence” philosophy of Milwaukee’s NAACP commandoes: given the fact that police violence in black communities is routine and sometimes exceptionally brutal, we must not criminalize the acts of self-preservation and community defense through which people and activists try to defend themselves.
Importantly, the movement sparked by the police killing of Floyd is creating the context, commitment, and the power for black people to save their lives and the lives of others from the police. With the constant threat of vigilante violence and active police and National Guard use of violence against protestors (including breath-robbing tear gas, steel-tipped rubber bullets that have taken eyes, and ramming people with vehicles), it becomes easy to see the need for black activists to use arms and other means to defend themselves and demonstrators. But it is also important to recognize that the legitimacy of armed and unarmed resistance needs to extend into everyday life. As Chad Kautzer reminds us in his essay “A Political Philosophy of Self-Defense” in these pages, “communities of color defend themselves as much against a culture of white supremacy as they do against bodily harm.” Black self-defense therefore must be understood as inherently political. As it seeks to overturn the illegitimate structural racial violence that fades into the background of everyday life for whites, black self-defense is insurrectionary and liberatory—whether it is being exercised by community defenders, protestors, sex workers, petty thieves, rebellious teenagers, protective grandmothers, or scared ex-convicts afraid to lose their jobs and families.
We must not criminalize the acts of self-preservation and community defense through which people and activists try to defend themselves.
Of course, legalizing self-defense against an unlawful arrest alone would not make black people safe from the threat of police brutality. Nor would securing convictions against individual police officers who have killed black people be enough to keep black people safe. Activists’ calls for these kinds of legal reforms are urgent and necessary, but we must also view them only as first steps in a much larger, more creative, more hopeful vision of abolition. As Ruth Wilson Gilmore says, “Where life is precious, life is precious.” We need to listen to the community defenders who recognize that we need to decriminalize black self-defense and black self-preservation. Black life needs to be protected always and everywhere: George Floyd buying cigarettes and living with claustrophobia; Rayshard Brooks falling asleep behind the wheel waiting to order food; Breonna Taylor in her own bed. Community defenders know that every black life is sacred, invaluable, irreplaceable. Black life cannot be sacred only when it is filmed. Nor can it be protected only when there is protest.
Update: Just hours after this piece was published, activist Vaun Mayes was arrested by Milwaukee police for a warrant violation. The police have not disclosed what the warrant was for.
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June 29, 2020
17 Min read time