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.