QUESTION: resisting arrest vs. going limp

question / pregunta: 

How likely is it that going limp during an act of civil disobedience (e.g. a sit-in) would be charged as "resisting arrest"? How serious an offense is resisting arrest? Is it a felony? Thanks!

Answers

It seems that whether or not "going limp" is considered resisting arrest varies from one jurisdiction to another.

Villanova Law Review reports that:

"The California legislature has enacted statutes which make "passively resisting" arrest, by going limp, a violation of the Penal Code. Cal. Penal Code 148(a) (1988 & Supp. 1995) ("Every person who willfully resists, delays, or obstructs any public officer or peace officer or an emergency medical technician ... in the discharge or attempt to discharge any duty of his or her office ... is punishable ...."). Courts have construed "willful resistance" to include "passive resistance." See, e.g., People v. Schehr, 232 N.E.2d 566, 568-69 (Ill. App. Ct. 1967) (finding "sit-in" participant guilty of resisting police officer by refusing to walk upon being arrested); People ex rel. Howell v. Knight, 228 N.Y.S.2d 981, 985-86 (1962) (holding that defendant who resisted arrest by laying on sidewalk and refusing to move violated penal law). In In re Bacon, 49 Cal. Rptr. 322 (1966), the court held that the University of California at Berkeley students participating in a political demonstration violated 148. Id. at 333. The court held that "a person who goes limp and thereby requires the arresting officer to drag or bodily lift and carry him in order to effect his arrest causes such a delay and obstruction to a lawful arrest as to constitute the offense of resisting an officer as defined in Section 148." Id. "In ... the LAPD's own tape of eighteen numbered uses of nunchakus against demonstrators was shot with the advantage of closer proximity to its subjects and shows that most demonstrators apparently resisted only by writhing and screaming in pain." Skolnick & Fyfe, supra note 9, at 167."

Mitchell, Michael D., "NOTE: FORRESTER v. CITY OF SAN DIEGO: IS PAIN COMPLIANCE AN APPROPRIATE POLICE PRACTICE UNDER THE FOURTH AMENDMENT?" Villanova Law Review. 1994. v. 40. p. 1177 (not sure if I interpreted the volume and page #s appropriately from LexisNexis).

This next note makes it sounds as if going limp is an acceptable alternative to resisting arrest, but it does discuss a pretty old civil disobedience training, from 1963:

For example, many non-violent activists "go limp" when their civil disobedience prompts police to initiate an arrest because doing so imposes greater costs in terms of time and manpower upon the arresting officers than cooperating. See, e.g., Bruce Hartford, Notes from a Non-Violent Training Session (1963), at http://www.crmvet.org/info/nv1.htm (last visited Nov. 1, 2004) (noting different tactics for going limp as described during training for activists in 1963); CPT Public Witness, Arrest, Jail and Court: Making Choices, at http://www.cpt.org/publicwitness/arrest.php (last visited Nov. 1, 2004) (advising making choice between cooperating with arresting officer or going limp before time of arrest); Environment Defenders Office Victoria, Hassle-Free Non-Violent Action: A Resource for Activists 8, at http://www.edo.org.au/edovic/Publications/4_hassleFreeNon-violentAction.PDF (last visited Sept. 28, 2004) (recommending protesters refrain from resisting arrest, defined as "doing anything other than voluntarily going along with the police officer or going limp and allowing yourself to be carried away"). Likewise, generation of corpses or unconscious bodies creates higher risks of severe or capital punishment and greater difficulties in disposing of evidence.

Barnhizer, Daniel D. "INEQUALITY OF BARGAINING POWER," University of Colorado Law Review. v. 76. Winter, 2005.

Whereas this article says it is resisting arrest:

See Dana Hull, Anti-War Activists Plan to Disrupt Daily Activities If War Breaks Out, San Jose Mercury News, Feb. 25, 2003, at 1A ("Civil disobedience advice is passed from activist to activist, can be found on the Internet, and is dispensed at training sessions. Among the tips: It is ... harder for cops to drag you away if you go limp."); State v. Bay, 721 N.E.2d 421, 423 (Ohio Ct. App. 1998) (holding that going limp to make it harder for the police to take one away constitutes resisting arrest)."

Volokh, Eugene. "Crime-Facilitating Speech," ,I.Stanford Law Review. v. 57. March 2005.

I'm marking this as answered for now, but I've got a question out to a radical lawyer, so I'll fill in more when I hear back.

I forgot about the felony

I forgot about the felony part of your question. I have seen references in legal resources citing resisting arrest as a misdemeanor and as a felony, the latter when the means of resistance was dangerous or extreme. e.g. "Where defendant twice drove away from an officer who was attempting to stop him for a traffic violation, once requiring the officer to perform a dangerous turn on his motorcycle to avoid being hit, and the defendant also fled on foot, the evidence was sufficient to support a conviction for felony resisting arrest." Missouri Lawyers Weekly Staff, "Missouri Court of Appeals Southern District Case Summaries: March 12, 2007," Missouri Lawyers Weekly. March 12, 2007.

The same paper a month earlier said, "Where an officer pursued a driver who refused to stop for 11 minutes, the officer had initially intended to stop the driver to check his registration and because he was driving in the middle of the road, there was no evidence that the officer intended to arrest the driver for anything other than fleeing, so the evidence was insufficient for felony resisting arrest." Missouri Lawyers Weekly Staff, "Missouri Court of Appeals Southern District Case Summaries: February 5, 2007," Missouri Lawyers Weekly. February, 2007.

But that's just Missouri. Tell us where you are, and we'll try to home in on cases in your state.

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