Massachusetts Supreme Court Clarifies “Resisting Arrest”

I often get questions from readers and friends as to exactly what the charge of “resisting arrest” means. I’ve represented many clients on this charge (successfully, avoiding many convictions,) and I can assure you that this area of criminal law can be extremely murky.

The very term “resisting arrest” is a vague one. Exactly what does that mean? Obviously, an act such as physically fighting with a police officer who is attempting to make an arrest would clearly qualify as “resisting.” But assume for a moment that a person were to do something as non-combative as take a step or two back from an officer who was attempting to make an arrest of that person. Would that constitute “resisting” arrest? What about walking away from the officer? What about running away? In my career as a Boston criminal defense lawyer, I’ve seen dozens of scenarios where clients are charged with “resisting arrest.” Some of those charges were justified; many were not.

Essentially, this area of law boils down to a police officer’s power to make an arrest. Depending on the particulars of every given situation, (which are always fact-driven) those powers can be very broad. It is the wide breadth of those powers that can lead to abuses by some police officers. Bear in mind: My writings are not intended to criticize police officers in general, or particular police departments within the Commonwealth of Massachusetts. The vast majority of police officers are responsible stewards of their authority, and I have great respect and appreciation for a great many of them. But, as is the truth with any occupation or profession, there are always some individuals who abuse their power and positions of authority. That is one reason why criminal courts exist.

A perfect example of such an abuse occurred with a recent client of mine: Waiting in line to get into a Boston nightclub, the client was told by a police officer on a paid detail (i.e., the officer’s shift was paid for by the nightclub,) to leave the waiting line, simply because he had asked to step inside for a moment to alert his friends, who were unaware where he was, that he was waiting in the line outside the club. This very aggressive officer told the client that if he didn’t leave, he’d be arrested. As the officer threatened him with arrest, the client backed away from him, and the officer charged him with “resisting arrest.” While I was successful in preventing this client from receiving a conviction, the police department involved pressed their case aggressively with the District Attorney’s office involved.

Recently, the Massachusetts Supreme Judicial Court (SJC) provided some clarification as to what kind of conduct does and does not legally constitute “resisting arrest”. In my opinion as a Norfolk County criminal defense lawyer, the decision doesn’t provide all the clarity it could have, but it’s an improvement. The ruling, in Commonwealth v. Quintos Q, a Juvenile SJC No. 10517 (decided June 21 2010,) held that a suspect who runs away from police after being ordered to “stop”, cannot be charged with resisting arrest for solely those actions and those actions only. In contrast, however, the SJC also ruled that a fleeing suspect who puts officers’ lives in danger in the process of pursuing him, can be charged with this crime.

Commonwealth v. Quintos Q involved the June 2006 arrest of a juvenile who fled Stoneham police after officers shouted “stop”, during an on-foot pursuit that followed a car chase. The defendant was arrested, when he ran down a dead end street. When being arrested, the defendant was not combative with the officers and submitted to their custody. The court ruled that “In the circumstances here, a passenger in the vehicle, innocent of any crime, could not reasonably be said to understand the pursuit and the words, ‘Stop, police,’ to mean more than simply an order to stop.” In the second case, Commonwealth v. Montoya SJC No. 10526 (also decided June 21 2010,) the court ruled that police were legally justified in charging this defendant with resisting arrest, and based its reasoning in the fact that the defendant supposedly placed officers’ in danger in the process of fleeing. This arrest occurred in Holyoke in 2005, as police officers pursued a shooting suspect who fled the scene on a bicycle. With guns drawn, police ordered the defendant, who they suspected had just committed the shooting, to stop. The defendant then abandoned the bike and fled on foot. He then ran through an opening in a fence and jumped 20 to 25 feet into the water of a canal below. The officers stopped their pursuit before reaching the fence, but the defendant was arrested later. The defendant’s lawyers argued that he should be acquitted on the resisting arrest charge, because it was the officers who placed themselves in danger by chasing the defendant, but the SJC disagreed.

As a Dedham resisting arrest lawyer, I find the reasoning between these two cases to be rather amorphous. It could be argued that anyone who flees from police, is triggering a pursuit (whether vehicular or on foot,) that could expose an officer to danger. Exactly where are lower courts to draw the line in deciding when and where a police officer is and isn’t placed in “danger”, when pursing a suspect? If someone flees police by running across a street that has little vehicular traffic on it, that would seem to preclude a charge of “resisting arrest; if that same suspect were to run across a street with minor to modest traffic, would that then legally constitute resisting arrest? Where is the limiting principle, grounded in pragmatism? This decision seems to create more confusion than clarity.

Keep reading this blog: I’ll keep an eye on this evolving area of criminal law.