What is 'Resisting Arrest' under PC 69? Defenses?

We often regard “Resisting an Executive Officer” (Penal Code § 69), also known as “Resisting Arrest,” as a trumped-up charge, meant to spite a defendant who was so audacious as to question the perhaps unclear authority of a police officer.

The Reader’s Digest Version: Resisting arrest under Penal Code § 69 is a wobbler (can be charged as a felony or a misdemeanor) that prosecutors and judges see as quite serious, however, we find the charge is often prompted by a client acting in self-defense to an officer who uses illegal force. Defending against this charge at trial often requires a police procedures and use of force defense expert.

One of our clients claimed that because he failed to call the officer “sir,” after the officer demanded this, that he was kicked by the officer. In response to being kicked, in self-defense, he pushed the officer away and was promptly arrested for violating Penal Code § 69. In another situation, an officer asked our client to sign a ticket and as the client was reaching for the pen, the officer threw it to the ground playfully, saying “Pick it up, slave.” Our client commented, “man, that is not right” and was immediately arrested for resisting arrest. It is therefore helpful to understand this charge fully.

Penal Code § 69 breaks up “resisting an executive officer” into two definitions, each of which can be charged as a felony. First, it is defined as “willfully and unlawfully attempting by threats or violence to deter or prevent an executive officer from performing a lawful duty. “Willfully” means you do something on purpose. An “executive officer” is defined as a police officer, fireman, paramedic or any public employee charged with enforcing the law. This can include a judge and a district attorney.

The second definition includes using force or violence to resist an executive office in the performance of a lawful duty.

It is important to distinguish “resisting an executive officer,” often called resisting arrest, from assault. Assault is a higher, more serious form of resisting an executive officer in that assault requires an unlawful attempt to injure someone coupled with a present ability to do so.

It is also helpful to understand how a violation of Penal Code § 69 is similar to battery (Penal Code § 242). Both battery and resisting an executive officer involve force or violence. It can be as minor as touching in a way that is rude or offensive, often done in an angry way. It does not need to be a punch or push.

The defenses to Penal Code § 69 are fairly easy to anticipate. First, there is self-defense. If a police officer is using excessive force against you, you are entitled to defend yourself, just as long as the force you use is reasonable under the circumstances (California Jury Instruction (CALJIC) 3470). After all, when the arresting officer uses excessive force, the arrest is no longer lawful. The officer is also then no longer engaged in the performance of his duties.

The question of what is excessive force is often difficult to answer. Eyewitness testimony of what went on, best if in a video captured by a commercial establishment’s security cameras, is often helpful.

It is at this time that a Pitchess motion to get copies of a police officer’s personnel file can reveal that the police officer has a history of using excessive force. This same motion can help discredit the officer’s version of the facts, especially if he has been disciplined in the past for fabricating facts, coercing confessions or racial profiling.

The punishment for violating Penal Code § 69 as a felony is a minimum prison sentence of 16 months to a maximum of three years. If charged as a misdemeanor or reduced from a felony to a misdemeanor, the punishment is a maximum of one year in county jail. Both a misdemeanor and a felony conviction carry a maximum fine of $10,000. It is a common in such cases that restitution will also be awarded for any medical expenses that the executive officer incurred due to defendant.

For more information about resisting arrest and related topics, click on the following articles:

1. What Is the Difference Between a Felony and a Misdemeanor?
2. What Is Resisting Arrest under Penal Code §148(a)(1)?
3. What Should I Wear and Bring to Court?

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