At his blog Pro Libertate, William Norman Grigg recently weighed the pros and cons of resisting arrest. His somber conclusion: “Resistance may be dangerous, but submission is frequently fatal.”

The topic of resisting arrest is familiar territory for Grigg. He regularly explores the legal evolution of resisting, as well as the reasons people may feel inclined to resist or evade arrest. According to Grigg, English common law held that citizens had the right to resist unlawful arrests. But US courts moved away from this interpretation during the 20th century. Today, resisting arrest is effectively illegal.

What led to this change? According to Grigg, “Courts that seek to criminalize resistance have generally made the pragmatic argument that resistance is more dangerous than submission.” But Grigg challenges this assumption by discussing what really happens on the street and in the jails.

Grigg pays particular attention to the case of Stephen Slevin, who languished for two years in solitary confinement in a New Mexico jail without ever seeing a courtroom. Slevin, originally arrested in 2005 on suspicion of DWI and vehicle theft (he actually borrowed the car from a friend), won a $15.5 million lawsuit against Dona Ana County in March. Of course, none of Slevin’s jailers faced repercussions for confining and torturing him for two years without trial. Habeas whatas?

Surely cases like Slevin’s are rare, right? Slevin’s case is extreme, but rampant abuse in local jails is not. For example, the FBI is currently investigating the Los Angeles County Sheriff’s Department due to allegations of jail violence. According to the Los Angeles Times, “So far, federal authorities have secured a bribery conviction against one deputy, but the probe continues. Sources with knowledge of the federal investigation say it recently has expanded to include two new cases in which deputies allegedly took part in unprovoked beatings.”

Due to the state of the US criminal justice system, Grigg argues forcefully that people should not forfeit their right to resist an illegal arrest. His is a minority opinion, even among those who fight police abuse. For example, the ACLU advises, “Do not resist arrest (emphasis in original), even if you believe the arrest is unfair.” And if you consult any criminal defense attorney, you will likely be told that resisting is out of the question.

So should citizens have the right to resist? Absolutely. Is it wise to resist an unlawful arrest? Probably not.

Resisting arrest may indeed help you to avoid jail, at least temporarily. But, it may also be your ticket to the trauma room or the morgue. Thus, the decision to resist must be well informed, not impulsive. I would like to offer some tips that I hope will help you to stay free and alive.

Avoidance

In The Art of War, Sun Tzu said, “The supreme art of war is to subdue the enemy without fighting.” This is an excellent concept to keep in mind where law enforcement is concerned.

Avoidance is better than confrontation when it comes to interacting with the police.  Do not engage in actions that are likely to elicit calls to the police. Respect your neighbors and your neighborhood. If you use illegal substances, don’t advertise your habit. If you sell drugs, consider taking business indoors. Open-air drug markets disturb the community and are easy targets for cops. Those involved in drug sales should develop non-violent ways to settle disputes, because only kingpins and the state win when low-level drug dealers use their guns.

When you are out, avoid areas with heavy police presence if possible. When that is not an option, blend in. Don’t try to be cute, provocative or loud around police, especially in the middle of a tense situation like a bar brawl. If cops are agitated, you may get grabbed in the confusion. And keep in mind that numbers-oriented police love to pluck low hanging fruit (read: stupid drunks, street dealers).

People should also be very selective about the reasons they call for police assistance. Even those who call for help can become victims of police excesses. Police agencies thrive on our dependence and succeed only with our cooperation. Therefore, withdrawing cooperation can give people more power over the police that claim to serve them.

Getting stopped

Anytime you are stopped by police, be assertive about your rights. Assertiveness is your first line of defense and is preferable to running or fighting.

During a traffic stop, provide the officer with your driver’s license, then let her do the talking. Do not incriminate yourself by speculating about the reason for the stop. Keep your hands on the steering wheel and don’t make any unnecessary movements. Never consent to a search of your vehicle. If the officer asks you to exit the vehicle, ask if you are being detained or if you may leave. Unless you are facing extraordinary circumstances, never drive away until the officer says you may leave.

If you are stopped by police while you are on foot, keep in mind that police, like private citizens, can approach and talk to anyone. Don’t get agitated, just remember that you are under no obligation to speak to police or answer their questions. So, just keep walking if you wish.

But suppose an officer says, “do me a favor and step back over here.” Police often ask for “favors” when they are on shaky legal ground. Your response should be, “am I being detained?” If he says no or does not respond, you may walk away unless you are ordered to stop.

If the officer says that you are being detained, then he is asserting that he has reasonable suspicion to briefly stop you for investigatory purposes. This is often referred to as a “Terry Stop” and may also involve a pat down for weapons (and only weapons!).

Being Detained

If you are being detained, invoke your right to remain silent and request counsel. Then, start making mental notes: What are the officers saying? What are you being accused of? Are their witnesses in the vicinity? Is anyone at the scene filming or taking photographs? Are the police bringing a witness to the scene for a “show-up” (a field identification)? Do you see any surveillance cameras in the area?

Anytime you are detained, rapidly assess the damage. Are you going to be facing a traffic citation or an ordinance ticket? Is there a chance you might receive a notice to appear (NTA) in lieu of a trip to jail? Officers have the option of issuing NTA’s in many misdemeanor cases. In his helpful book Arrest-Proof Yourself (2007), former police officer and FBI Agent Dale Carson recommends that people “Ask for a notice to appear, or penal citation, especially if the problem is a small amount of drugs or something that’s relatively minor” (p. 248).

If your case is likely to be handled without a custodial arrest, resistance at the scene will only exacerbate your problems. You will be able to leave the scene with your piece of paper and you will have a chance to plan your defense from the comfort of your own home.

But what if you are being falsely accused of a more serious crime? Start to retrace your steps. Who have you interacted with today? Where have you been since the alleged incident? Have you stopped at any businesses along the way? If so, great! More than likely you were on camera and spoke to employees. If you made a purchase with a credit or debit card, the transaction is traceable. If you have a receipt, you have already started your paper trail. At this point, you are in better shape than many defendants. Thus, the risk of resistance probably outweighs the potential benefits.

To resist, or not to resist; that is a loaded question

So far, I’ve discussed situations in which I don’t recommend flight or physical resistance. But, here are some more equivocal scenarios:

• The encounter starts off with a physical assault. Maybe you don’t even know your assailant is a police officer. In this scenario, do what you need to do to protect yourself. Argue self-defense later. This is one of the few affirmative defenses against resisting arrest charges. If the police did not identify themselves (or were not in uniform), that will also help your case.
• The police invade your home with little or no warning. Again, you may not know this is a law enforcement operation. Defend yourself, your family and your pets. It is your home, after all.
• Police offer no explanation for why they have stopped you and respond to inquiries with threats or verbal abuse. These are red flags indicative of an illegal detention. Sadly, the courts are unlikely to back you if you resist. Running might be an option in order to avoid battery to a police officer charges. Otherwise, look for witnesses and hope that the incident is being recorded.
• During a protest, demonstrators are being attacked for no reason or for peaceful non-compliance. Seriously, how much longer are people going to stand by while citizens engaged in non-violent civil disobedience are being sprayed, beaten and tased? As Jim Morrison sang, “They got the guns – But we got the numbers.” Activists who use the tactic of “unarresting” seem to be getting the message.
• You witness police beating a person that is not resisting, unconscious or possibly having a medical problem. Filming these incidents is important, but intervening may save a life. Unfortunately, it is too late for Kelly Thomas.
• Police attempt to physically stop you from filming them or taking photographs in a public area. Laws against filming police are on the way out. This is true even in states like Illinois that have used severe eavesdropping laws to punish people for filming police. No matter what the law says in your state, officers who attempt to take your camera by force should be treated like the criminals they are.

The reality of resisting

Resisting arrest should not be about showing off or teaching the police a lesson. This is not a bar fight or an MMA match. If I may borrow some military nomenclature, your priorities should be survival, evasion, resistance and escape, with strong emphasis on evasion and escape.

If you decide to resist, you are already out of good options. There is a high probability that you will be injured and sent to jail no matter what you do. If this is the result, hope for video footage, community support and a sympathetic jury. With all this in mind, I’ll leave you with some general observations.

Gather intelligence and evidence

• If the encounter looks like it is going to go sideways, nonchalantly size up the officer. He will be doing the same to you. What is his physical condition? Can you outrun him? Do you have any avenues of escape or are they blocked? Are more officers arriving?
• Look for badge numbers and name plates on the officers’ chests. At a minimum, try to memorize badge numbers. Scan the area for witnesses and surveillance cameras, especially cameras on private property that the police have less control over. The squad car should have a dash camera, so try to stand near the vehicle’s front bumper and speak clearly.
• Assess the officer’s behavior. Is he speaking calmly or losing verbal control? Is he whispering insults to provoke you? If so, don’t take the bait. Is he trying to get closer to you or behind you? Where are his hands in relation to the tools on his belt, especially his taser?

Stay calm and get the crowd on your side

• Do not get into anything resembling a fighting stance. This will allow officers to rationalize an enthusiastic beat down if they are so inclined. If you feel the need to run or fight, the element of surprise will be necessary. Tell officers that you don’t want any trouble and make sure you can be heard by people in the area. Keep your hands in sight and slightly above your waist (unless they ask you to raise your hands). Keep your palms facing towards the officers to make it clear to them and to witnesses that you are not concealing a weapon. Never reach into your waist band or pockets.
• Talk to any bystanders. Tell them why you believe the police are out of line. Ask the officers to call for a supervisor and make sure witnesses hear your request. Ask witnesses to film the incident. If you are fortunate, pressure from bystanders may encourage officers to take a less aggressive approach.

Regarding the taser

• Tasers are the popular toy of the moment in law enforcement. Too often, they are used on people who are, at most, passively resisting commands. If an officer successfully deploys his taser, you will be immobilized and at his mercy. He may try to get in close to perform a “drive stun” or he may fire the barbs at you from a distance. Bear in mind that police taser models may be successfully deployed from a distance of up to thirty feet. And yes, police will tase you if you walk or run away. If officers display tasers, I do not recommend resisting.

Evasion and escape

• If the police converge on you, getting aggressive is generally a mistake. If you feel you cannot comply, evasion would be a better tactic. If possible, wait for officers to be distracted by something. Maybe officers will be responding to comments from your sympathetic crowd and they will look away from you. Take advantage of such opportunities and keep physical contact with officers to a minimum.
• If you get away, run towards commercial areas with lots of people and surveillance cameras if possible. You will probably be caught and you want as many witnesses as possible when this occurs. Avoid running through people’s yards, as this will lead to people calling police and providing them with your direction of travel.
• If the police are no longer in sight, stop running and blend in to the environment. Calm down, catch your breath and think of a safe place to go. Do not go to your residence, because the police will be en-route there. Consider discarding an item or two of clothing to alter your appearance a bit. The police have probably set up a perimeter, so moving indoors for awhile may be a good idea. Consider ducking into a fast food restaurant or retail establishment for awhile. This will give you time to collect your thoughts and contact family, friends, an attorney and possibly a media source.

Survival

• If there is nowhere to go and an attack is imminent, now is the time to raise your hands. Put your forearms in front of your face with your elbows facing out in case they try to rain blows onto your head, face or neck. Also, remember that compression of the trachea (windpipe) or carotid arteries will result in rapid loss of consciousness and possibly death. For this reason, treat any attempt to choke you as attempted murder and act accordingly.
• In a confrontation with police, you will almost certainly be facing multiple armed attackers. This is the primary reason why physically resisting when you are alone is a bad idea.
• If you are taken to the ground and police pile on top of you, they may shout “stop resisting” repeatedly, even if you are complying. This tactic seems to be employed for the benefit of witnesses and may be used to justify excessive force later. Respond with “I am not resisting” every time they say it.
• If police decide to punish you instead of properly handcuffing you, follow this emergency advice from Dale Carson (2007): “curl up into a fetal ball and protect your head with your arms (emphasis in original). If you are already handcuffed with your hands behind you, try to wiggle your head under the police cruiser for protection” (Arrest-Proof Yourself, p. 200).

Going home

When police officers justify a use of force, they often say that they feared for their lives and were just trying to get home safely to their families. You also have the right to go home safely. This should be your primary goal anytime you are detained by the police. Survival takes precedence over pride and politics.

Stay safe out there!