Resisting Arrest: The Law in Georgia

If people don’t immediately comply with police officer commands, officers often say “stop resisting.” Some people have compared that phrase to Allahu Akbar, the phrase which some Muslim extremists use to justify violent action. That comparison may be a bit over the top, but it definitely raises a valid point. For many years, the law has wrestled with this point, and the wrestling goes on.

Once upon a time, jurors routinely sided with police officers in resisting arrest and other such cases, even if the officer’s story was a little shaky. Those days are gone. In 2014, 54 percent of American adults believed police officers were adequately trained to avoid excessive force. By 2023, that number had tumbled to 39 percent. The percentage usually rises once a controversial shooting fades from the headlines, but it’s never as large as it was before.

Make no mistake. Police officers still have a right to do their jobs. But the line has moved, giving a Marietta criminal defense lawyer an opportunity to work within the law and successfully resolve resisting arrest charges. This successful resolution could be a not-guilty verdict at trial, a complete dismissal of charges, or, more likely, a plea to a lesser-included offense.

Common Law

Basically, common law is a combination of moral and legal standards that’s evolved over the centuries. Way back in the day, before elected legislatures, the common law was pretty much all there was. Now, common law is essentially presumptive law. It applies unless a legislative law clearly overrules it.

In 2021, the Georgia Supreme Court clearly ruled on this issue, holding that people have a right to physically resist unlawful arrest, even if that resistance includes damaging property. In this particular case, officers had no probable cause to arrest the man for loitering and prowling outside an elementary school in Athens.

Kicking and flailing, he strongly resisted arrest. At one point, the man lunged forward, smacking a sergeant’s face with his forehead. Soon after that, he was lying atop another officer on the pavement. When officers finally got the suspect into the cruiser, he kicked at the door so violently he damaged its hinges.

However, don’t celebrate. The common-law right to resist only applies if the detention and/or arrest was illegal. Reasonable suspicion (the standard for detention) and probable cause (standard for arrest) are low standards.

Reasonable suspicion is basically an evidence-based hunch. The evidence could be very flimsy, such as a person who matches a suspect’s general description. Furthermore, it doesn’t matter if the officer’s hunch was accurate or inaccurate.

Probable cause is also the standard of evidence grand jurors use to issue indictments. Usually, grand jurors look at cases and think “s/he’s probably guilty, but we’d need to hear both sides of the story to be sure.” One federal judge famously remarked that a good prosecutor could convince a grand jury to indict a ham sandwich.

Statute Law

In some states, separate laws address violent and nonviolent resisting. In Georgia, Section 16-10-24 addresses both. Defendants commit misdemeanors if they “knowingly and willfully obstruct or hinder any 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 in the lawful discharge of his or her official duties.”

A close reading of that statute shows that it already included the common law defense (lawful discharge of official duties).

Resisting arrest is a felony if the defendant threatens or uses violence, or if the defendant is a subsequent offender.

Note that the law prohibits violence, not bodily injury. A 5-5 woman is no physical threat to a 6-2 officer. However, police officers get very little sympathy from jurors in these situations.

Court Cases

We discussed one major resisting arrest case, Glenn vs. State, above. We should also discuss two more which make it easier, or harder, depending on the facts, for a Marietta criminal defense lawyer to resolve resisting arrest charges.

Witness Credibility Issues

The credibility of a witness, especially a paid informer, is always an issue in a criminal case. However, Barnwell v. State (1972) discussed this issue in the resisting arrest context.

Prior to his testimony, the District Attorney reduced the bail for a key witness. The DA also moved two felonies to the dead docket (legal purgatory) and approved probation for a serious misdemeanor. The state didn’t tell the defense about these sweet deals.

Oddly, the court ruled that the state’s cases against this witness were so weak they would’ve been dismissed anyway. Therefore, the witness’ testimony wasn’t corrupted and the state didn’t need to tell the defense about these deals.

This case shows the tough-on-crime attitude that many judges harbor, even though the weight of public opinion has gone the other direction. So, for a Marietta criminal defense lawyer, there are no free rides, no matter how favorable the law might be.

Words-Only and Words-Plus Obstruction

Psychologically, the “sticks and stones” adage is baloney. Words hurt just as much as fists, if not more. The law recognizes this fact as well. Words-only resisting arrest cases could hold up in court, especially since Georgia’s law combines resisting and hindering. However, words-plus cases are easier to prove.

In Harris v. State (2012), the defendant’s conduct was “basically, just refusing to cooperate,” according to one arresting officer. Such refusal, even if accompanied by belligerent “I know my rights”-type statements, isn’t resisting arrest.

Words-only resisting arrest cases could hold up in court, however, but only in limited situations. Some examples include:

• Telling someone to remove evidence,
• Using “fighting words,”
• Walking away, or trying to walk away, after an officer said “you’re under arrest,”
• Lying to an officer, and
• Being so loud that officers cannot do their jobs.

As for words-plus, the court noted that the legislature dropped a “violence” requirement. “The [misdemeanor obstruction] statute was made purposefully broad to cover actions which might not be otherwise unlawful, but which obstructed or hindered law enforcement officers in carrying out their duties. This does not, however, make any actions which incidentally hinder an officer a crime,” one court explained.

Resisting arrest laws in Georgia are very complex. For a free consultation with an experienced Marietta criminal defense lawyer, contact The Phillips Law Firm, LLC. Convenient payment plans are available.