Can You Resist an Unlawful Arrest in SC?
If you’ve been charged with resisting arrest in SC or know someone who has, you may wonder, “Can you resist an unlawful arrest in SC?”
The answer is yes, but…
SC law says that you can resist an unlawful arrest. Should you? Although I can imagine a few scenarios where it may be necessary to resist an unlawful arrest, as a rule, it’s just a bad idea.
You may have the right to resist an arrest, but is it worth getting beaten by a police officer? Is it worth dying over? Is it worth taking the risk that the courts or a jury will disagree that your arrest was unlawful?
Below we’ll have a look at what is resisting arrest in SC, what are some defenses to resisting arrest in SC, and when you have the right to resist an unlawful arrest.
What is Resisting Arrest in SC?
South Carolina’s resisting arrest law, found in SC Code Section 16-9-320, is split into two parts – subsection (A), resisting arrest, and subsection (B), assaulting an officer while resisting arrest.
Resisting Arrest (A)
“Ordinary” resisting arrest in SC is covered by section 16-9-320(A):
(A) It is unlawful for a person knowingly and wilfully to oppose or resist a law enforcement officer in serving, executing, or attempting to serve or execute a legal writ or process or to resist an arrest being made by one whom the person knows or reasonably should know is a law enforcement officer, whether under process or not. A person who violates the provisions of this subsection is guilty of a misdemeanor and, upon conviction, must be fined not less than five hundred dollars nor more than one thousand dollars or imprisoned not more than one year, or both.
I’ve had clients who wondered why they were charged with resisting arrest when they didn’t punch, hit, kick, or otherwise hurt the officer during their arrest.
The charge of resisting arrest in SC, under subsection (A), does not require that you cause injury to the police officer – it only requires that you:
- Willfully oppose or resist;
- A Law enforcement officer;
- Who is serving process or making an arrest; and
- You know or should have known that it’s a police officer.
I’ve seen people charged with resisting arrest for something as simple as pulling their wrists away from the officer as the officer tries to cuff them – although there are defenses that can be raised, it does not take much to be charged with resisting arrest in SC under subsection (A).
Resisting Arrest (B) or Assaulting an Officer
If you assault the police officer as they are attempting to make the arrest, you will be charged under subsection (B) and the prosecutor is more likely to pursue your case aggressively…
(B) It is unlawful for a person to knowingly and wilfully assault, beat, or wound a law enforcement officer engaged in serving, executing, or attempting to serve or execute a legal writ or process or to assault, beat, or wound an officer when the person is resisting an arrest being made by one whom the person knows or reasonably should know is a law enforcement officer, whether under process or not. A person who violates the provisions of this subsection is guilty of a felony and, upon conviction, must be fined not less than one thousand dollars nor more than ten thousand dollars or imprisoned not more than ten years, or both.
If you are charged with assaulting an officer, the case will often turn on whether you willfully assaulted, beat, or wounded the officer.
Prosecutors will often pursue charges of assaulting an officer when the officer was hurt during an arrest – but, that’s not what the statute says.
If an officer falls to the ground and hurts their pinky finger while arresting you, that may be resisting arrest (A), but it is not assaulting an officer unless you intentionally assaulted the officer.
Is Resisting Arrest in SC a Felony or a Misdemeanor?
Resisting arrest (A) is a misdemeanor, but resisting arrest (B), or assaulting an officer, is a felony punishable by up to ten years.
What are Defenses to Resisting Arrest in SC?
There may be several defenses to resisting arrest in SC, depending on the circumstances. Every case is different, but below are a few examples of common defenses that we have seen to charges of resisting arrest.
I Didn’t Resist Arrest
Obviously, if you were not resisting arrest, you should not be found guilty of resisting arrest.
Police officers will often “tack on” charges when someone pisses them off – one of those charges may be “resisting arrest” under the state statute or a municipal ordinance.
Resisting arrest in SC requires that you intended to resist arrest by a police officer. You are not guilty unless the state proves that:
- You intentionally resisted the arrest – if an officer is aggressively cuffing you and you fall to the ground, that is not resisting arrest;
- A law enforcement officer was making the arrest – although anyone can make a “citizen’s arrest” under certain circumstances, you can’t be charged with resisting arrest in SC for resisting a citizen’s arrest; and
- You knew or should have known that it was a police officer – if they are not in uniform and do not announce who they are, you cannot be convicted of resisting an arrest.
I Wasn’t Under Arrest
It may seem obvious, but the officer must actually arrest you before you can resist an arrest…
What is an arrest, then?
The SC Supreme Court in State v. Brannon clarified that there are two situations when a person is “under arrest.” The first, and simplest situation is where the officer makes physical contact with the person – for example, taking them by the arm or attempting to place cuffs on them. At that point, they have been “arrested,” and, if they resist, they can be charged with resisting arrest.
But, what if the person runs and the officer never makes physical contact?
If the officer does not physically touch the person, an arrest has not occurred unless:
- The officer intends to arrest the subject; and
- The subject intends to submit to the arrest.
If the person runs away from the officer, clearly, they do not intend to submit to the arrest. Which means that they are not resisting arrest unless the officer catches them, makes physical contact, and then they continue to resist.
The Arrest was Unlawful
Yes, you have the right to resist an unlawful arrest in SC.
Although that sounds fair and reasonable, you should be aware that it is extremely rare that the courts (or jurors) will agree that an arrest was unlawful.
For example, State v. Poinsett is the main case that people cite to for the proposition that you can resist an unlawful arrest in SC, even to the point of killing the officer. It does say:
A person has a right to resist an unlawful arrest even to the extent of taking the life of the aggressor if it be necessary in order to regain his liberty.
The problem is that even the cases that hold that you have a right to resist an unlawful arrest have upheld the convictions for resisting arrest – Poinsett’s conviction was upheld on appeal, as was the defendant in State v. McGowan where the SC Supreme Court stressed that, if a person resists an unlawful arrest, it must be proportional to the amount of force shown by the officer:
An unlawful arrest, or an attempt to make an unlawful arrest, stands upon the same footing as any other nonfelonious assault, or as a common assault and battery. The person who is so unlawfully arrested, or against whom such an unlawful attempt is directed, is not bound to yield, and may resist force with force, but he is not authorized to go beyond the line of force proportioned to the character of the assault, or he in turn becomes a wrongdoer. . . .
A mere trespass on one’s person or liberty is no reason for the taking of life, and if one commits a homicide while resisting an arrest, even though it is unlawful, he cannot justify on the ground of self-defense unless he can show that the killing was apparently necessary to protect himself from death or great bodily harm. . . .
But such person should use no more force than is necessary to resist the unlawful arrest, and is justified in using or offering to use a deadly weapon only where he has reason to apprehend an injury greater than the mere unlawful arrest, as danger of death or great bodily harm. . . .
Self Defense During an Arrest
The right to resist an unlawful arrest is based in self-defense – which, theoretically, should also allow you to resist an otherwise lawful arrest during which an officer uses excessive force.
You have the right to defend yourself from bodily harm or death, but you may have an uphill battle persuading the court and jurors that self-defense applies…
Resisting Arrest Defense Lawyer in Charleston, SC
Charleston, SC criminal defense attorney Grant B. Smaldone represents clients who have been charged with crimes, including resisting arrest and assaulting an officer, in SC state and federal courts.
Call now at (843) 808-2100 or send an email to talk to a Charleston defense lawyer today.