Georgia’s version of the resisting arrest law may be one of the most controversial criminal laws in the state. Section 16-10-24, which lawmakers recently upgraded, prohibits hindering law enforcement officers as they discharge their legal duties. “Hindering” basically means “not cooperating fast enough to please the officer.” However, this broad definition also sets up two key defenses in these cases. More on that below.
Due to the broad nature of the law and the built-in defense, resisting arrest charges in Georgia are very complex. Only the most experienced Marietta criminal defense lawyer should handle such matters. Experienced lawyers essentially transform complex cases into simple ones, especially from a defendant’s perspective. Good Marietta criminal defense lawyers identify all possible defenses, walk people through the process, and don’t relent until they obtain the best possible result under the circumstances.
Misdemeanor vs. Felony Resisting Arrest in Georgia
Hindering (non-violent resistance) cases are usually misdemeanors in Georgia. Examples of non-violent resistance (making an officer’s job more difficult) include:
- Pulling away during an arrest,
- Evading an officer,
- Refusing to comply with commands,
- Blocking or interfering with an officer’s actions, and
- Verbally refusing to cooperate in a way that physically hinders the arrest.
We realize that last bullet point is confusing, so allow us to clarify. Usually, single-action verbal resisting arrest charges don’t hold up in court. If an officer must ask the defendant twice to step out of the car, a resisting arrest charge is probably forthcoming.
Misdemeanor resisting arrest is usually a fallback or add-on offense. Prosecutors file these charges if they can’t find more serious charges. When misdemeanors go to court, prosecutors often ignore lesser charges (e.g. public intoxication in a DUI matter). But they hardly ever drop RA charges.
Now for the good news. Prosecutors often offer favorable deals right out of the gate in misdemeanor resisting arrest cases. Police officer reputation is at an all-time low. Many jurors are quick to believe that a misdemeanor RA defendant committed a ticky-tack offense, and the officer was an unreasonable bully.
Violent resistance which threatens the officer’s physical safety is usually felony resisting arrest. Examples include:
- Punching, kicking, or striking an officer,
- Using or attempting to use a weapon, or
- Any act that causes or attempts to cause serious bodily harm.
These cases are more difficult to resolve. Most jurors believe the defendant is clearly the “bad guy” and the officer was the “good guy,” or at least the “gooder guy.” Since felony resisting arrest is punishable by one to five years in prison, court supervision terms are very long and restrictive in these matters.
Defenses to Resisting Arrest Charges in Georgia
The presumption of innocence applies in all criminal cases. This presumption basically means a Marietta criminal defense lawyer gets a head start in criminal cases. This head start makes it easier to leverage defenses, during pretrial negotiations and during trials.
Did the Defendant Know the Person Was a Law Enforcement Officer?
RA charges only hold up in court if the defendant knew the police officer or other government official was, in fact, a government official.
The law only covers 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.”
This issue sometimes arises in disturbance call resisting arrest charges. Many private security officers look like police officers. That’s no accident. Private security companies believe that such uniforms give their security officers more authority.
Unless officers clearly announce themselves, and prosecutors can establish this announcement with body cam footage or other physical evidence, the resisting arrest case gets off to a bad start, at least from the prosecutor’s perspective.
When an Unlawful or Improper Arrest Becomes a Defense
A critical aspect of a resisting arrest charge in Georgia is that the arrest must be lawful. When officers exceed their legal authority, the charge may be invalid. Common examples include:
- Reasonable Suspicion: Defendants can resist arrest even if they aren’t under arrest, such as during a traffic stop. Officers must have reasonable suspicion (an evidence-based hunch) to detain people. A mere “s/he doesn’t look right” hunch is insufficient. Furtive movements (nervous glances into a rearview mirror) are also insufficient.
- Probable Cause: This ill-defined standard is between reasonable suspicion and beyond any reasonable doubt. Basically, officers must have evidence connecting the defendant to a crime, and they must reasonably believe that evidence will hold up in court. Lack of probable cause is one of the most common procedural defenses in criminal cases.
- Illegal DUI Roadblock: Sobriety checkpoints are legal in Georgia, as long as these checkpoints meet specific legal requirements, such as proper authorization, sufficient pre-checkpoint publicity, proper layout, and perhaps most importantly, a neutral vehicle detention formula.
However, we should add that Georgia law generally discourages individuals from physically resisting unlawful arrests (“comply now and complain later”). Courts often hold that disputes over legality should be addressed later through the court system, not through force at the scene.
In practical terms, lack of official duty is often an effective defense in non-violent misdemeanor RA cases, but not in violent felony matters.
Officer Use of Force and How It Impacts Resisting Arrest Cases
For police officers, resisting arrest is a shield, not a sword. It protects them from physical harm. It doesn’t give them an excuse to physically abuse defendants, at least theoretically.
As mentioned, Georgia’s resisting arrest law is quite broad. Many states include a reasonable fear requirement (i.e. physical resistance must create a reasonable fear). A 6-2, 220-pound officer has no reason to fear a 5-2, 120-pound suspect, even if that suspect “violently” resists the officer.
This defense is unavailable in Georgia. But the appropriate response defense is available. Resisting arrest is basically self-defense for police officers. Putting a person in a chokehold is not a proportional defense to a push or shove.
Lack of Intent or Confusion as a Defense
Officers often scream and shout in dangerous situations, such as when they serve a search warrant, to confuse and disorient people. Flashing squad car lights have the same effect. A confused or disoriented defendant cannot legally resist arrest. The statute applies to knowing and willful conduct, not incidental conduct.
This high-profile defense is especially effective in states that only prohibit intentionally resisting arrest conduct.
Resisting arrest could transform uncomfortable situations into court cases. For a free consultation with an experienced Marietta criminal defense attorney, contact The Phillips Law Firm, LLC. The sooner you reach out to us, the sooner we start working for you.
