While we do hear less about police brutality than we did a few years ago, when getting into a confrontation with police, it is normal for anyone to become confused or scared. These intense feelings may lead to a knee-jerk fight or flight-type reactions.

Unfortunately, simple acts of “fighting back,” trying to escape, or trying to make yourself more comfortable may lead to additional criminal charges of resisting arrest.

In North Carolina, resisting arrest is a Class 2 Misdemeanor. Along with additional fines or time on probation, these charges could give a prosecutor more to hold against you in court.

Still, just like any other criminal charge, defendants are presumed to be innocent of resisting arrest until proven guilty, and there are ways you can fight back.

Your lawyer may use one or more of the following common defense strategies against resisting arrest charges. Not all of them may apply to your case but talk with your North Carolina criminal defense attorney about which strategies are most appropriate for you.

Your North Carolina Arrest Was Unlawful

We trust that law enforcement officers know what they are doing, and are abiding by the law themselves when making an arrest, but if something feels off about the arrest process, follow that hunch with your lawyer. You cannot be charged for resisting arrest if the arrest was not conducted in a lawful manner.

There are a number of ways that an arrest could be unlawful, including:

• An arrest caused by a person’s proximity to, rather than involvement in, the crime
• A vindictive officer arresting someone based on an assumption or prejudice
• The arrest occurred during an unlawful search of your home

Remember, law enforcement officers need probable cause or an arrest warrant to arrest someone for possibly committing a crime. Probable cause can be a vague term, however, and what you might think is not probable cause may still hold up in court.

Using this defense strategy requires a strong case against the officer. In the end, the judge will have to decide whether or not the arrest was lawful and whether the case can continue.

You Did Not Know You Were Being Arrested in NC

North Carolina law also requires law enforcement officers to take the following steps before making an arrest:

• Identify him- or herself as law enforcement unless identity is otherwise apparent
• Inform the arrestee that he is under arrest
• Promptly inform the arrestee of the cause of arrest, unless evident

Not all police officers wear the standard uniform that we have come to identify with the position. Plainclothes or undercover officers are allowed to go out on the field without revealing their identity – until they make an arrest.

If a plainclothes officer starts to put you under arrest without identifying himself first, you may be able to argue that the arrest was unlawful and that you cannot be charged with resisting.

Know that officers do not have to read you your Miranda rights or put you in handcuffs to make a lawful arrest.

The North Carolina Police Were Using Excessive Force

Police may have to use a certain amount of force to restrain a person who is not obeying orders. In many cases, this force is necessary and lawful.

However, police who get caught up in the moment and lose their restraint may end up using excessive force. In this instance, the arrest becomes unlawful, and you are no longer resisting a lawful arrest.

What exactly is “excessive force,” though?

If the officer’s actions were likely to cause great bodily injury (or death) then the force is most likely “excessive.” In these cases, defendants can argue that they were resisting arrest in self-defense.

These laws can be tricky, and a judge may take into account any actions that might have provoked the officer.

The best thing you can do after getting charged for resisting arrest is to educate yourself on the law. Every scenario is different, and there are nuances to every case, and your attorney can be your best advocate and educator.

For instance, were you aware that not all instances of resisting arrest are physical? Even verbal abuse or refusing to accept a ticket can be considered a criminal act of. Your earlier actions before things got physical could still be considered a crime in North Carolina, too.

Ultimately, the more you know about how arrests are made and how police are required to act, the easier it will be to spot an unlawful arrest and get your charges dropped.