What Constitutes Resisting Arrest in Utah?

Lawful Arrest

Resisting arrest, or interference with an arresting office, is a crime that gets tacked on as an additional offense for any defendant who didn’t just roll over for the cops.  If you are a suspect for a crime and you argue with a law enforcement officer, for example, you run a real risk of getting hit with resisting arrest.

According to the statute, the crime for interfering with an arresting officer can attach only if the arrest was “lawful.”  So for example, let’s say that a Kid A, an 18 year old, is in the bathroom at his school using the facilities.  Kid B is also in the bathroom but he is smoking in the bathroom.  Kid B leaves the bathroom leaving the odor of smoked cigarettes in the bathroom.  Kid A remains in the stall in the bathroom.  Kid A finishes up, washes his hands, and leaves the bathroom.  As soon as Kid A leaves the school officer sees him, walks by him, smells smoked tobacco coming from the bathroom and Kid A’s person and determines that Kid A was smoking underage illegally.  Officer searches Kid A’s person and backpack and finds no   Officer tells Kid A to go to the principal’s office and grabs his arm.  Kid A can’t figure out what’s going on and starts to tell the cop to leave him alone and starts to pull away from the officer.  The officer tackles Kid A and then cites him for resisting arrest.

In the above example Kid A was innocent of the original crime – possessing tobacco.  Thus, his arrest for said crime was unlawful, which means that he cannot be convicted of resisting arrest…at least you would think. This issue was decided nearly 100 years ago when the Utah Supreme Court held: “Where an unlawful arrest is attempted by an officer or another, the person sought to be thus unlawfully arrested may no doubt resist such an arrest with all proper and reasonable means.”  148 P. 1071, 1076-77 (Utah 1915).  This is the right rule.  Cops can’t simply go around arresting people for no reason and then charge them with resisting arrest when they actually stick up for their rights.

Over the last 100 years, however, the courts have removed the “lawful” component of resisting arrest even though the statute says the arrest has to be lawful!  It makes no sense, but basically if you are arrested unlawfully and you then resist the arrest, you can be found guilty of resisting arrest.  In other words, cops can do whatever they want and you have no right to fight back.

The resisting arrest law in found in the Utah Code. The text of that law is below:

76-8-305. Interference with arresting officer.
A person is guilty of a class B misdemeanor if he has knowledge, or by the exercise of reasonable care should have knowledge, that a peace officer is seeking to effect a lawful arrest or detention of that person or another and interferes with the arrest or detention by:
(1) use of force or any weapon;
(2) the arrested person’s refusal to perform any act required by lawful order:
(a) necessary to effect the arrest or detention; and
(b) made by a peace officer involved in the arrest or detention; or
(3) the arrested person’s or another person’s refusal to refrain from performing any act that would impede the arrest or detention.

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