Georgia Courts Redefine Resisting Arrest

The Georgia Supreme Court revived a doctrine that first appeared in 1710 and allows defendants to offer proportional resistance to unlawful arrests.

Athens-Clarke County police officers arrested Christopher Glenn for loitering outside a local elementary school. Glenn, who contended that he was simply walking home, assaulted the arresting officers and kicked the squad car’s door so violently that he bent its hinges. The Superior Court agreed Glenn’s arrest was unlawful, but ruled that he didn’t have the right to violently resist. The State Supreme Court disagreed. Writing for a unanimous court, Justice John Ellington cited The Queen v. Tooley, a 1710 English case which gave suspects the right to violently resist authority in these situations. The U.S. Supreme Court issued a similar ruling in 1900.

“The right to resist an unlawful arrest is easy to understand in an academic sense,” noted human rights lawyer Gerry Weber said. “But in the moment of the interaction with the police officer, it’s a very precarious situation for citizens who exercise their constitutional right.”

Disrespecting Authority Crimes in the Peachtree State

This ruling is not unsurprising in the current environment, which is most decidedly not very friendly to police officers.

There’s an old saying that one bad apple spoils the barrel. That aphorism, like so many others, is mostly true. According to many, anyone who has looked out a window since 2020 has seen that there a few bad apples in the police force, including some right here in Georgia.

These incidents might or might not be justified. But rightness or wrongness really doesn’t matter in this context. The bottom line is that high-profile conflicts between civilians and police officers have affected law enforcement credibility.

The lack of credibility affects almost every criminal prosecution in Cobb County. Police officers are usually the primary witnesses, or the only witnesses, in these cases. The effect is especially dramatic in the offenses discussed below. Once upon a time, officers routinely charged individuals with these crimes if the facts didn’t support more serious charges, and charges like resisting arrest almost always held up in court. Now, things are different.

Resisting Arrest

Obstructing an officer could be a misdemeanor or felony in Georgia. Neither 16-24-10(a) nor 16-24-10(b) requires use of force or a similar physical component. So, in pretty much all cases, it’s the officer’s word against the suspect’s word.

Misdemeanor obstruction is “knowingly and willfully” failing to cooperate with a “law enforcement officer, prison guard, jailer, correctional officer, community supervision officer, county or Department of Juvenile Justice juvenile probation officer, probation officer serving pursuant to Article 6 of Chapter 8 of Title 42, or game warden.”

Everyone has a legal duty to obey basic law enforcement commands, such as “stay behind the line.” However, everyone also has the right to remain silent under the Fifth Amendment. That includes the right to refuse to comply with certain requests, like signing a statement, appearing in a lineup, or posing for a picture. That also includes the right to refuse to cooperate with investigators.

There’s no bright line that separates these two things. Assume Jerry is a person of interest (witness or suspect) in a violent crime. Officers tell him to sit at picnic table near the scene until someone interviews him. Does Jerry have to wait thirty seconds, thirty minutes, or somewhere in between? Furthermore, what if Jerry goes to the bathroom while he’s waiting? Technically, he violated the officer’s instructions. That may seem petty, but people have been arrested for less.

Felony obstruction is “offering [threatening] or doing violence” to one of the aforementioned people as s/he discharges an official duty. If one looks closely at the law, the Glenn decision covers no new ground. An unlawful arrest is not an official act.

On a somewhat related note, our Marietta criminal defense lawyers are sometimes asked about filming police officers with a cell phone or other camera.

Contrary to popular myth, the First Amendment doesn’t automatically apply to this activity. Instead, the First Amendment only applies to activities which courts have deemed to be a fundamental right. The Eleventh Circuit Court of Appeals, which includes Georgia, has ruled that filming police officers as they discharge their official duties is a fundamental right, as long as the would-be Abraham Zapruder complies with any time, place, and manner restrictions. However, the U.S. Supreme Court has yet to rule on this issue, so stay tuned to this station for more updates.

Failure to Identify and Loitering

If officers have reasonable suspicion that you are involved in criminal activity, they may stop you on the street and ask you to identify yourself. Similarly, if you are pulled over on a Georgia road, you must show officers your drivers’ license and proof of insurance. Defenses to FID include an illegal stop and a lack of sufficient evidence. We mentioned that such infractions are often the police officer’s word against the suspect’s word. Technically, that’s not enough proof to establish the offense beyond any reasonable doubt.

Loitering is a closely related law. Officers can press these charges if a person “is in a place at a time or in a manner not usual for law-abiding individuals under circumstances that warrant a justifiable and reasonable alarm or immediate concern for the safety of persons or property in the vicinity.”

That’s extremely vague. However, there are some additional requirements which somewhat narrow the loitering law. Officers must “afford the person an opportunity to dispel any alarm or immediate concern which would otherwise be warranted by requesting the person to identify himself and explain his presence and conduct.” This requirement works both ways. If the suspect doesn’t say anything, or the suspect doesn’t comply quickly enough to satisfy the officer, the suspect could be charged with failure to identity.

Disorderly Conduct

Section 16-11-39 is not technically a disrespecting-a-police-officer offense. But it is very similar. It is a misdemeanor to use language or act in such a way that another person reasonably believes that health, safety, or property may be in jeopardy, or the suspect’s conduct is “an immediate breach of the peace.”

There’s a difference between a subjective fear and a reasonable fear. Some people are deathly afraid of garden snakes, but that’s not a reasonable fear. Furthermore, a breach of the peace implies that the suspect made a threat and that s/he had the apparent ability to carry out that threat.

Resisting arrest-type offenses are much harder to prove in court today than they were back in the day. For a free consultation with an experienced criminal defense attorney in Marietta, contact The Phillips Law Firm, LLC. We routinely handle matters in Cobb County and nearby jurisdictions.