NJ Case Law: Resisting an Illegal Arrest

NJ Case Law: Resisting an Illegal Arrest

Getting arrested can be a scary and confusing experience. Your natural instinct may be to pull away or even run. But in New Jersey, resisting arrest—even an illegal arrest—can lead to criminal charges.

New Jersey’s resisting arrest law (N.J.S.A. 2C:29-2) makes it illegal to purposely prevent or attempt to prevent a police officer from making an arrest, even if you believe the arrest is unlawful. This means that physically struggling, fleeing, hiding from police, or even giving false information are all considered resisting arrest.

The penalties for resisting arrest depend on the circumstances:

• Disorderly persons offense (misdemeanor): Up to 6 months in jail
• 4th degree crime (felony): Up to 18 months in jail
• 3rd degree crime (felony): Up to 5 years in jail

Resisting arrest charges can be enhanced to 3rd degree crimes if you use or threaten force against an officer, or create substantial risk of injury. Additional charges like obstruction of justice are also possible.

But just because an arrest is illegal does not mean you can be charged for resisting it. Police must have “color of authority” and announce their intent to arrest you first. Your attorney can argue there was no actual arrest, just an illegal detention.

Some key cases in NJ case law on resisting arrest include:

• State v. Kane: Ruled an illegal arrest at a public meeting was not grounds for resisting arrest. But the charges were dropped because police failed to announce intent to arrest defendant first.
• State v. Mulvihill: Ruled that resisting an unlawful arrest may still be illegal if officers were acting under color of authority.
• State v. Koonce: Stated that an illegal arrest does not justify forcefully resisting officers acting under color of authority.

The implications of these rulings are that you cannot use self-help to resist even an unlawful arrest in New Jersey. Instead, your recourse is to challenge any charges in court later.

But there are defenses you can raise against resisting charges, including:

• You didn’t know you were under arrest due to noise, distraction, etc.
• Officers failed to announce their intent to arrest you first
• Officers detained you but did not formally arrest you
• Your actions did not actually impede the arrest

Overall, while you should not use force or flee arrest in New Jersey, even if you believe it is illegal, an experienced criminal defense attorney can help get improper resisting charges dismissed. They will evaluate if you were properly informed of arrest, if detention was unlawful, and if your actions actually prevented arrest.

With the right legal defense, charges for resisting an illegal or improper arrest can often be reduced or avoided entirely. But attempting self-help or force against officers risks turning an unlawful arrest into a serious criminal conviction.