When Can I Resist the Police?

handcuffed manYou are just minding your own business when all of a sudden, you are being confronted by a police officer, displaying a badge, asserting their authority, and commanding you to comply. “Wait a minute--isn’t this America? Do I not have rights under the Constitution?” The answer is yes, of course you have rights; but resisting or obstructing an officer in the performance of their duties is not among them.

The typical situation where one might expect to find themselves in trouble is while driving in heavy traffic. There might be construction, an emergency response, or some other roadblock. There may be people, police officers or other responders who may be directing traffic around the affected area. For whatever reason, you failed to obey a clear signal given to you to stop or you may have almost struck an emergency responder. Under the Illinois Vehicle Code, you may be guilty of a petty traffic violation that carries a minimum fine of $150.00 plus court costs that may double that number, at least. Even if you didn’t see the signal, you may have an uphill battle in court, because it’s widely known that drivers need to pay attention and slow down when proceeding through a controlled zone.

Thanks to a recent phenomenon known as the Covid 19 Pandemic, we are all now being made fully aware of the power of our government to inhibit our freedom of movement and our freedom of assembly, etc. We are being told to stay at home and maintain proper social distancing when we do go out (for essential purposes only), but many people want to challenge the authority of the police to enforce the Governor’s order. Those people who do so are in violation of the Illinois Public Health Code, which provides that anyone who refuses to comply with a quarantine, closure or stay-away order is guilty of a Class A Misdemeanor, punishable by up to 364 days in jail, a $2,500 fine or both. In Chicago, the Mayor has ordered police to issue warnings and if those fail, to issue a $500 ticket under a Chicago Ordinance and if that fails, then to arrest the offender under the Illinois State law. The Village of Oak Park recently put out on their website that the State law will be enforced in their village. You may have the right to Free Assembly, but the interest in Public Health and Safety vastly outweighs your interest in freedom of movement.

Let us say that an officer is placing you under arrest for an alleged offense, for which you know you are absolutely innocent, and the arrest is unlawful. What is the law on this? You may not resist the arrest, obstruct the officer in the performance of his stated duty, or hinder his performance in any way. The law flat out disallows the use of physical force to defeat any arrest, lawful or unlawful, in Section 7-7 of the Criminal Code, as Section 7 details what is authorized use of force in most every situation. Depending upon how much force is used by the citizen to the resist generally dictates how serious the criminal charges will be. Rest assured, in these situations, there will almost always be criminal charges.

Using any amount of force, even if it is the simple act of refusing to place one’s arms behind one’s back for handcuffing, even if no harm came to the officer, is considered Resisting or Obstructing a Peace Officer and it is a Class A misdemeanor, which carries a mandatory conviction if found guilty. If an officer is injured, and the proximate cause of the injury was the act of resistance, then becomes a Class 4 felony. This applies even where the injury was not intentionally inflicted but was an accident during the struggle.

If one’s use of unjustified force results in bodily harm to an officer, even slight bodily harm, the penalties are at a minimum a Class 3 Felony (2-5 years in prison, up to 30 months of probation, fines up to $25,000.00, etc.), all the way up to a Class X felony if a firearm was involved. Even the mere threat of violence to an officer is deemed to be Aggravated Assault, and if a weapon is involved it is a class 4 felony. If no weapon was involved, the mere threat is a Class A misdemeanor.

It does no good to try and run away from a police encounter. At a minimum, it is resisting or obstructing an officer. If you flee in an automobile, it becomes the Class A misdemeanor of Fleeing/Attempting to Elude Police, and upon a conviction, your driver’s license becomes suspended for 6 months. If the act of fleeing involves certain aggravating factors, it becomes a Class 4 felony and upon a conviction, revocation of driving privileges for a minimum of one year may result.

To sum up, never take “the Law” into your own hands, especially when you are involved in a police encounter. They have the guns, the badges, the pepper spray, the taser, the billy club, and the handcuffs, but, most importantly, they have the absolute protection of the law on their side when they are doing their dangerous job on the streets. So, do not take it upon yourself to play “Dime Store Lawyer”. Do not argue and do not resist. Let the police “do their job,” then afterwards, let your lawyers do their job in court, representing you in your defense.

The legal team at Mitchell S. Sexner & Associates LLC offers a free consultation to discuss your situation. Call us 24/7 at (312) 644-0444 or contact us online today.

Written by Mitchell S. Sexner Last Updated : January 13, 2023