Yesterday, NYPD Commissioner Bill Bratton called on the NY State Senate to make the charge of Resisting Arrest a felony; it is currently a misdemeanor punishable by up to one year in prison. While it may sound good on paper this is a profoundly bad idea.
Those who practice or work in the criminal justice system know that “Resisting Arrest” is a common charge employed to cover up an excessive use of force by an officer. It is a charge prone to abuse and easy to prosecute – your only necessary witness is the arresting officer: a professional, trained testifier in a uniform. And all he has to do to make out the elements of the crime is testify that the defendant offered up any kind of mild resistance or hesitation. In fact, the most common phrase used in Resisting Arrest complaints is that the defendant “flailed his arms” when the officer tried to put handcuffs on him.
Statistics show that these charges are routinely brought by the same officers. A recent report by WNYC has discovered a startling and disturbing reality about the way that New York’s police officers operate. According to their findings, just 15% of New York Police Department arresting officers generated over 50% of all “resisting arrest” charges since 2009, while an even smaller group of just 5% accounted for over 40% of those incidents. Just 5% of the entire NYPD were involved in over 40% of the city’s “resisting arrest” incidents. What are these 5% just continually running into chronic arrest-resisters? Do they work in neighborhoods where “flailing” is taught in school? Or is it more likely that these 5% are using the charge wrongly and excessively?
Raising the charge to a felony significantly raises the stakes against the accused. Now they are facing up to 4 years in prison; 5 years probation; loss of professional licenses; loss of the right to vote; and a black mark on their record that could easily prevent future employment. Many will now be forced to cop out to misdemeanors and end up with criminal records rather than face a felony trial against police witnesses.
I get why Bill Bratton is doing it: He needs to mend fences with his police force after they started turning their backs on Mayor Bill DeBlasio at police officers’ funerals. He needs to show that he’s got their backs and will support them. But this is a bad way to do it. Police departments around the country consider frequent charges of resisting arrest a potential red flag, as some officers might add the charge to justify use of force. University of Nebraska accountability consultant Sam Walker told WNYC: “There’s a widespread pattern in American policing where resisting arrest charges are used to sort of cover … the officer’s use of force. Why did the officer use force? Well, the person was resisting arrest.” That will come as no surprise to any criminal defense practitioner. If your client is bruised or is bloody from his interaction with NYPD you can almost bet that Resisting Arrest (and the other favorite – Obstructing Governmental Administration) will will be on the docket.
Commissioner Bratton also called for laws instituting more severe penalties for fatally assaulting an officer; for attacking a school safety agent or auxiliary cop; and for wearing a bullet-proof vest. Okay – these reforms make sense but elevating Resisting Arrest to a felony gives too much power to an NYPD force that is still not trusted by much of the community it polices.
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