Sometimes a person gets in more trouble by trying to get out of trouble.
The group of criminal offenses that include resisting arrest, evading arrest, and failure to identify are often times more serious than the original reason for a person’s arrest. For example, if a person knows that he has an outstanding speeding ticket he may intentionally give the officer the wrong date of birth. When the officer learns of the discrepancy, a new crime has been committed which is much more serious than the traffic fine. Likewise, when a person tries to run or drive away, the criminal consequences are far more serious than had the person stopped, cooperated, and dealt with the repercussions responsibly.
Sometimes there are serious factual disputes about whether a person gave the wrong name or date of birth and is absolutely innocent. A person may give their legal name but their driver’s license shows their maiden name – and there’s a warrant for arrest under the maiden name. The police officer assumes that a different name was given to avoid the warrant, and the arrest for failure to identify is made. Sometimes there are language difficulties, sometimes there is a problem understanding that Mexican Americans often use both their parents’ surnames, and sometimes the person is so nervous that he gives the wrong date or address and the officer believes he was purposefully being deceitful.
Evading arrest is a prime example where if a person refuses to pull over they are charged with a felony – much more serious than the typical traffic infractions or misdemeanors charges that would result had the person simply pulled over. Evading arrest in a vehicle is a felony because the risk to public safety is far greater than if a person runs on foot. Regardless, running from a police officer pretty much gives law enforcement an open license to restrain, tackle, taze or shoot. We often hear complaints about unnecessary force used to detain a person after they flee. As you can imagine, they often fall on deaf ears.
Finally, resisting arrest is dangerously close to the felony offense of assault on a peace officer, and both involve a credibility battle between citizens and law enforcement. In evading and resisting arrest cases one of the principle areas of inquiry is whether or not a police officer was injured in the attempt to subdue the person being arrested. Many of these cases begin with a person failing the attitude test, or feeling that the arrest was unfair and frustrated that the officer is arresting them against their will. It often ends with both people becoming frustrated, the use of force escalating, and a significant disagreement about what started the change of events. The caselaw is hypertechnical in distinguishing between force directed towards an officer (resisting arrest and/or assault) or pulling away from an officer (possibly not a crime) attempting to handcuff a person. Furthermore, the right of self-defense against a police officer’s unlawful or excessive use of force is a factual determination.
Many resisting arrest cases start when the person believes (and later proves) that the original arrest was unlawful. However, the rules of engagement in a democratic society suggest that the proper place to resolve this dispute is in a courtroom and not on the street. Under Section 9.31(b)(2) of the Texas Penal Code, the use of force against another is not justified to resist an arrest or search that the actor knows is being made by a peace officer even though the arrest or search is unlawful. There is a good public policy reason behind having law enforcement do its job, a prosecutor doing her job, and the court system deciding the legality of the arrest. The legal system expects civility in resolving disputes, especially in situations where there are serious disagreements about disputed factual issues.
There is a limited right of self-defense to an arrest or search made with excessive force under Section 9.31(c). A person has the right to use force to resist an arrest or search under the following conditions:
-Before the person offers any resistance,
-the peace officer uses or attempts to use greater force than necessary to make the arrest or search, and
-the person believes his use of force is immediately necessary to protect himself against the peace officer’s use or attempted use of greater force than necessary
As you can imagine, the central inquiry surrounds who used force first and what led to the escalation of either party’s use of force.