Fault Lines
20 January 2019

Bratton & NYPD Want To Make Resisting Arrest A Felony … Again

Feb. 22, 2016 (Mimesis Law) — Bill Bratton is a man who loves repetition.  After a stint as the Police Chief of the NYPD in the mid 1990’s, and an even longer stint as the head of the LAPD up until 2009, Bratton moved back into his old office at One Police Plaza in 2014 for a second run as Commissioner of the NYPD.  Has Bratton 2.0 been any different, or is he the same old dog that hates new tricks?

For a clue, one need look no further than what Bratton thinks about non-compliance with his police force, or to put it another way, resisting arrest.  He has been on a campaign during his reunion tour to let New Yorkers know that resisting arrest is not only wrong, but that it should be felony wrong.  After his proposal failed to gain traction last year, Bratton is once again attempting to convince the New York Legislature to turn resisting arrest into a felony.

Earlier this month, the Commissioner was in Albany to give his two cents about all this hullabaloo surrounding the growing rift between the people and the police.  Needless to say, he had a proposal that seemed to miss every point his detractors have been trying to make.

Last week, at a New York state Senate hearing on protests against police brutality, NYPD Commissioner Bill Bratton asked lawmakers to raise the penalty for resisting arrest from a misdemeanor to a felony.

“We need to get around this idea that you can resist arrest,” he later told reporters. “It results in potential injuries to the officer, to the suspect. And we need to change that, and the way to change that is to start penalties for it.”

It appears that this is something Bratton wants very much.  From February of last year:

NYPD Commissioner Bill Bratton today called for the state to change resisting arrest to a felony charge.

Mr. Bratton testified today before a joint hearing of four State Senate committees, where he made a number of recommendations—including suggesting that the penalty increase for resisting arrest. Currently, resisting arrest is a misdemeanor carrying a maximum punishment of one year, which Mr. Bratton argued does not deter the nearly 2,000 resisting arrest charges each year.

“I think a felony would be very helpful in terms of raising the bar significantly in the penalty for the resistance of arrest,” Mr. Bratton told reporters after speaking at the hearing in lower Manhattan.

Unlike last year, the most recent felony-happy Bratton is suggesting that we need to “start [imposing] penalties for [resisting arrest].”  His suggestion exposes his willful dishonesty.  First, there is no “start” to establishing criminal penalties for resisting arrest.  This state crime, codified as Penal Law § 205.30, is a misdemeanor and has been for quite some time.  The NYPD is certainly not shy about charging suspects with resisting arrest (more on that in a moment), so the notion that penalties need to “start” for this oft-charged crime is absurd.

Bratton also seems to get “penalty” wrong as well.  A resisting arrest conviction can carry a maximum sentence of one year in jail.  While few if any resisting arrest charges ever result in a maximum sentence, the minimum is always, at the very least one night in jail.  If bail is set, that day could easily turn into weeks or months.

Bratton’s number of annual resisting arrest charges, 2,000, is also woefully inaccurate.  New York City radio station, WNYC recently looked into resisting arrest and the NYPD and came up with some interesting numbers.

WNYC analyzed NYPD records and found 51,503 cases with resisting arrest charges since 2009. Just five percent of officers who made arrests during that period account for 40% of resisting arrest cases — and 15% account for almost 3/4 of such cases.

So, the number of resisting arrest cases is approximately 4 to 5 times what Bratton told the New York Senate.  And the fact that 5% of officers were responsible for 40% of those cases says a great deal about how fairly the NYPD charges resisting arrest.

In theory, criminalizing resisting arrest makes sense.  So why is there such a problem?  While the officers who drop that charge every time they drop a suspect deserve blame, so does the law.

So, law, “What is resisting?”  New York pattern jury instructions provide little clarity for that all-important question.

Under our law, a person is guilty of Resisting Arrest when he or she intentionally prevents or attempts to prevent a police officer [or peace officer] from effecting an authorized arrest of himself or herself [or another person].

So “resist” means “to prevent.”  Got it.

Herein lies the essential flaw in New York’s resisting arrest law.  If the arrest is lawful, does pulling free from the police and running constitute resisting arrest?  Of course it is.  What about trying to talk your way out of it, by telling the police that this is all a big misunderstanding?  To the wrong cop, isn’t that person “attempting to prevent” the officer from making an arrest?  There are a thousand scenarios that, under an inclusive reading of the plain language of the law, could arguably constitute resisting arrest.

But when those police reports and criminal complaints end up in court, the unique scenarios disappear.  The vast, vast majority of resisting arrest charges share a common allegation.  “The defendant did resist arrest by flailing his arms to prevent being cuffed.”*  While arm flailing undoubtedly occurs, it is unlikely that the police are dealing with arm-flailers nearly as often as they allege.

Which brings up the main problem.  Resisting arrest charges can be used properly, but they can also be used to provide a basis for why this particular defendant has a broken nose and a black eye.  They can also be used to punish a suspect who got a little too mouthy for the officer’s liking.  Unlike a host of other charges that require at least some connection to reality, a New York law enforcement officer can make up resisting arrest charges, and there is hardly a way to discover the lie.

It also has to do with perception.  Resisting is in the eye of the beholder, and unfortunately those eyes belong to police officers who too often demand nothing short of immediate surrender.  Resisting arrest is the charge that police officers have in their back pocket to drop in case things get a bit rough or they don’t like the cut of someone’s jib.

And as to the lack of protection that the current misdemeanor sanction provides to his officers, Bratton is again being willfully dishonest (there’s that repetition again).  If a police officer sustains an injury during an arrest, the suspect can and will be charged with a violent felony with a maximum of 7 years prison.  To see what is required to prove such a charge, let’s go back to the New York pattern jury instructions.

Under our law, a person is guilty of Assault in the Second Degree when, with the intent to prevent a police officer from performing a lawful duty, he or she causes physical injury to such person.

So those “potential injuries” that Bratton’s officers sustain when a suspect resisted arrest, those are already a felony, and a heavy one at that.

Bratton’s continued push to increase the penalty for resisting arrest has nothing to do with rectifying a hole in our law.  This is a power grab, plain and simple.  The government has more power over a person when that person is charged with a felony instead of a misdemeanor.  Attaching more power to one of the most arbitrarily applied and abused criminal laws in New York would have disastrous consequences (for the people).

Those who have the final say in whether resisting arrest becomes a felony must remember that they work for the people, not Bratton.  In a fitting instance of irony, the New York State Legislature should take the police proposal and do the only thing that makes any sense.  They should resist it.

*I have personally represented hundreds of people charged with resisting arrest in New York, and this allegation of resisting arrest is far and away the most common.

3 Comments on this post.

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  • Windypundit
    22 February 2016 at 10:51 am - Reply

    Then there’s the fact that when a loud and aggressive stranger wants to shackle your hands behind your back, rendering you completely helpless in his power, a certain amount of reluctance is kind of a natural impulse…

  • DaveL
    1 March 2016 at 12:40 pm - Reply

    I have personally represented hundreds of people charged with resisting arrest in New York

    Just out of curiosity, were any of those charged with resisting arrest, and nothing else?

  • Ernie Menard
    29 September 2016 at 9:37 pm - Reply

    Well, if the jury instruction is an accurate summation of the resisting arrest law then New Yorkers have the right to resist an unlawful arrest. I’m presuming the word ‘authorized’ in the jury instruction means ‘an arrest authorized by law for a criminal offense.’