Resisting/Preventing Arrest in D.C.

There are two components to the new resisting arrest statute in Washington, D.C.

First, it is illegal to resist one’s own arrest.  Second, it is against the law to prevent the arrest, detention, or attempted detention of another person.  D.C. Code § 22-405.01.

In order to prove the “resisting arrest” part of the statute, the government must prove that (1) the defendant actively confronted, obstructed, or took action against the police officer, (2) the defendant did so with the intention of resisting his own arrest, and (3) at the time of the resistance, the defendant knew that the complainant was a law enforcement officer.  D.C. Criminal Jury Instruction 4.116(A).

There are also three elements to the “preventing arrest” part of the statute.  Specifically, the government must prove that (1) the defendant prevented the officer from arresting, detaining or attempting to detain another person, (2) the defendant did so with the intent to prevent that person’s arrest or detention, and (3) at the time of the prevention, the defendant knew that the complainant was a law enforcement officer.  D.C. Criminal Jury Instruction4.116(B).  

In both cases, the judge or jury must also consider whether or not the defendant acted without justification or excuse.  For example, a police officer may use the amount of force that appears reasonably necessary to make the arrest or detention.  If, however, the officer uses more force than necessary, the person may defend against that excessive force by using only the amount of force that appears reasonably necessary for protection.  

The maximum penalty for resisting or preventing arrest is 6 months of incarceration and/or a fine of up to $1,000.

Resisting arrest was originally included as part of the Assault on a Police Officer statute under D.C. Code § 22-205.  It included language making it a crime to “intimidate,” “impede,” “obstruct,” or “interfere with” a police officer.  In concluding that this language was “overinclusive,” the D.C. Council decided to omit such language when it created a separate criminal offense for resisting/preventing arrest under the Neighborhood Engagement Achieves Results” (NEAR) Act of 2016.  

It is noteworthy that, in crafting the language for the two parts of the statute, the D.C. Council chose to distinguish between resisting one’s own arrest and preventing the arrest, detention, or attempted detention of another person.  In other words, the language with respect to another person applies more broadly.  According to a plain reading of the language, this would suggest that it is not illegal to resist one’s own detention.  

The NEAR Act also changed the maximum period of incarceration for this offense from 180 days to 6 months. Although the difference would appear to be minor (only a couple of days), the change turned the offense into one in which the defendant is able to demand a jury demand.  Because the government prefers quick and predictable bench trials, it is less likely to charge this offense.  

To consult with lawyer who has extensive experience defending people accused of this crime, please contact Jamison Koehler at 202-549-2374 or jkoehler@nullkoehlerlaw.net.