Stop Resisting: We’re All Felons Now

The crime of resisting arrest is one that conceptually disturbs a great many people.  Putting aside the cognitive dissonance when that’s the only crime charged, most would contend that it’s the crime of arrest, not the lack of cooperation with police in effectuating our own arrest, that should matter.  If a person is being arrested for a crime they didn’t commit, why should it be a separate crime not to facilitate their own wrongful arrest?

New York City Police Commissioner Bill Bratton doesn’t see it that way. Not at all.

On Wednesday, NYPD Commissioner Bill Bratton urged state legislators to consider increasing the penalty for resisting arrest from a misdemeanor to a felony. The change, he argued, would help New Yorkers “get around this idea that you can resist arrest. You can’t.” It would also give cops an easy way to turn victims of their own worst impulses into the worst class of criminal.

The laundry list of grievances with the “resisting arrest” meme is long and ugly.  From the cops beating a guy with his hands up while screaming “stop resisting” to the killing of Eric Garner for arguing against his being harassed yet again, to the young man on a Bronx stoop who cooperated in every way until the cops decided to arrest him anyway, it’s a free pass for police misconduct.

In theory, a resisting arrest charge allows the state to further punish suspects who endanger the safety of police officers as they’re being apprehended; in practice, it gives tautological justification to cops who enjoy roughing people up. Why did you use force against that suspect, officer? Because she was resisting arrest. How do I know you’re telling the truth? Because I charged her with it, sir.

While this may sound facetious, it’s not. Most of the time, the only evidence of resisting arrest is the officer’s subjective testimony that it happened.  Even with video, it usually eludes detection as cops will explain, with a straight face, how a perp “struggled” against the cuffs, requiring a tactical beating characterized by some variation of police jargon to give the impression that they weren’t just beating the crap out of someone, but using some properly authorized tactical maneuver to prevent a perp from resisting.

It falls under the ancient legal doctrine of equi fimus, but if spoken in somber tones using official-sounding words, most people will fall for it.

Cops using resistance as an excuse for their own abuse isn’t some wild conspiracy theory. Sam Walker, a law-enforcement expert and retired University of Nebraska-Omaha criminal justice professor, told WNYC in December:

There’s a widespread pattern in American policing where resisting arrest charges are used to sort of cover – and that phrase is used – the officer’s use of force,” said Walker, the accountability expert from the University of Nebraska. “Why did the officer use force? Well, the person was resisting arrest.”

Yet, it’s not enough for Bratton that resisting arrest has become a substitute excuse for beating the crap out of a person.  He contends that it needs to be upgraded from misdemeanor to felony.  For those unaware, the distinction is that a misdemeanor is a crime punishable by up to one year in jail. A felony is punishable by more than a year.  Because a beating isn’t good enough.

One might suppose there is an epidemic of people resisting arrest giving rise to Bratton’s position.  Perhaps there is, based upon the number of people beaten and killed by New York cops under the guise of resisting.  Or perhaps it’s based on the number of cops who suffer debilitating paper cuts while performing their official beat down duty, chalked up on official forms as the brutal harm done them by resisting perps.

Anticipating criticism, Bratton told the assembled lawmakers that he already had a plan to curb abuse: the department would use its CompStat arrest-tracking system to monitor officers who make lots of resisting charges that are eventually dropped, leaving oversight of the NYPD to the NYPD itself.

The Bratton fix applies the peculiar circular reasoning that only an important governmental official can love, relying entirely on its own internal good faith and integrity because, well, they are our police officers, our public servants, there to protect and serve, and we should love and respect them because they would never do anything wrong.  And if some “one bad apple” cop does, they will root out their internal evil and excise it from the corpus.  And if they don’t, that means we should build them a statue, because they would certainly never do wrong.

That Bratton argues that people shouldn’t “resist” police is hardly an outrageous position for a police commissioner to take.  After all, his post requires him to believe in what he does, in what his people do, and to support them in accomplishing their task.

That any legislator would buy the view that resisting arrest, perhaps the offense most fraught with abuse and certainly one that manages to defy logic at more turns than any other, would be pathetic.  If a defendant has committed a serious crime, let him be tried and, if convicted, sentenced for it.

But no one should be put under the threat of imprisonment, of a life as a felon, for not asking “how high should I jump” when commanded to do so by cops.  And the issue of resisting arrest as a free-standing charge has been deliberately not discussed here, because the implications of making it a felony when no other offense is charged are just too ridiculous for any rational person to consider. Then again, we’re talking legislators here, so nothing is too ridiculous to take off the table.

27 thoughts on “Stop Resisting: We’re All Felons Now

  1. Steven M Warshawsky

    Bratton does not know the law, as repeatedly stated by the NY Court of Appeals. There can be no “resisting arrest” where the underlying arrest lacks probable cause, and it is not a crime to resist an unlawful arrest. Of course, legal theory rarely matches up to reality, and it is foolish to fight the police under just about any circumstances. But as a formal legal matter, resisting arrest is not always illegal.

    1. SHG Post author

      Consider the implications for one the many amorphous offenses, provable because a cop says so (say, something trivial like changing lanes without signaling, the only evidence of which is the officer’s observation), where there is putative probable cause for a stop, that morphs into a felony. The potential for the reality to be disastrous is manifest.

      1. Not Jim Ardis

        Yet, it’s not enough for Bratton that resisting arrest has become a substitute excuse for beating the crap out of a person. He contends that it needs to be upgraded from misdemeanor to felony. For those unaware, the distinction is that a misdemeanor is a crime punishable by up to one year in jail. A felony is punishable by more than a year. Because a beating isn’t good enough.

        What’s worse, the fact that it is a felony is grounds for a person’s guns to be taken away, their conceal carry permit to be pulled, and is a vastly more intimidating accusation. You’re more likely to simply plead down to something else as opposed to fight the charge entirely because of the list of consequences that go beyond the jail time.

        It doesn’t matter how mild it is, writing anything besides “no” on an application under the “have you been convicted of a felony in the last X years” section can end your hopes of being employable.

  2. Glenn Brockman

    Teddy Bear, Teddy Bear, turn around.
    Teddy Bear, Teddy Bear, touch the ground.
    Teddy Bear, Teddy Bear, don’t resist!
    Teddy Bear, Teddy Bear, COP my FIST!

    Apologies to Mother Goose.

  3. Steven M Warshawsky

    Yes, that’s exactly right. Add to that the reality that “resisting arrest” can be anything as trivial as not putting your hands behind your back fast enough. Turning this into a felony would be another horrifying step down the road to a full blown police state.

  4. David M.

    The officer’s dressed in his best
    for a charge of resisting arrest.
    Obey him verbatim
    but fail to fellate him
    and find a baton in your chest.

    1. SHG Post author

      Rarely does someone work “fellate” into a limerick well. Now, if only you could have found a way to turn baton into a double entendre.

        1. Lawrence kaplan

          “I can see you’re a very pretty lass,”

          Said the officer with a touch of class,

          “But if you continue to bait me

          And resist my command to fellate me

          You’ll soon find a baton in….”

            1. Fubar

              [ Well, were I the czar of Harvard admissions, I’d award you a full scholarship you on the basis of your admissions limerick alone.

              But your student health insurance policy would exclude treatment for tummy abrasions. ]

  5. Not Jim Ardis

    leaving oversight of the NYPD to the NYPD itself.

    After an investigation by the NYPD, the NYPD has concluded that the NYPD has done nothing wrong…

    1. SHG Post author

      Are you trying to suggest that the NYPD cannot be trusted to police itself? That’s ridiculous. We give them guns. Why would we ever give them guns if we didn’t trust them? So obviously, they’re trustworthy, and if they’re trustworthy, they can be trusted to police themselves.

      1. Not Jim Ardis

        My god, what was I thinking?

        I’m sorry, Mister Officer-mans, I didn’t mean to suggest you were feckless thugs who would do anything to cover your own asses. I don’t know what I was thinking.

        I’m so ashamed.

  6. Ruben

    ” the department would use its CompStat arrest-tracking system to monitor officers who make lots of resisting charges that are eventually dropped”

    This raises quite a few questions, my first being:

    “Why aren’t they doing that already?”

  7. John Barleycorn

    Well if this devilish little development pans out Resisting’s sister Disorderly Conduct will surely be the next to go felonious.

    Just got to keep an eye on those gateway crimes now don’t we!?

    If this becomes law I am going to have to start up a web site dedicated to composing a new and improved il Silenzio which I can use as theme music for the porn parody site Boy Bratton & the Felons.

      1. John Barleycorn

        Horse Shit!

        ECLS. If we ever find the time you are going to suffer miserably with the heat your fire brings to your ribs. I actually don’t think you will even walk away without a new annunciation of BBQ.

        And there actually is a Latin phrase for that complex dynamic but I can’t spell.


  8. The Real Peterman

    “One might suppose there is an epidemic of people resisting arrest giving rise to Bratton’s position. ”

    That’s just what I was wondering. I doubt there is, since Bratton’s stated reason for the change is to send a message to New Yorkers. There’s an old saying: if you want to send a message, write a telegram.

    1. SHG Post author

      I suspect this is part of Bratton’s campaign to make peace with the PBA. Cheaper to buy them off with raising resisting to a felony than an extra point when they finally negotiate a new contract.

  9. Chris

    Am I wrong to think that Bratton is trying to give his officers carte blanche with no oversight?

    Personally, I don’t like criminals and would not like to get mugged or assaulted (again). But, I can recover from such things. However, if an officer is having a bad day, he could commit a much more harmful assault and then destroy the victim’s career (and therefore life) by excusing the assault with charges of resisting arrest.

    This also has a chilling effect on freedom of speech and assembly. If police decide at their discretion that a protest must be broken up, they can charge any protester they catch with resisting arrest and destroy their career. Even if the charges are dropped or overturned in court, the person might be jailed long enough to lose their job. Much of this country lives paycheck-to-paycheck already, especially the disenfranchised demographics that are most likely to protest.

    Citizens with criminal records are already a de-facto underclass in this country for many years after they have “paid their debt to society”. I do not see how a proposal like this could do anything other than expand or further demean that underclass.

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