Resisting Temptation

The NY Times today carried an interesting op-ed piece by Jesse Wegman on resisting arrest, ending with the suggestion that the NYPD ought to show a little more restraint. It's accurate as far it goes, but it could go further.

Mayor de Blasio is quoted saying,

When a police officer comes to the decision that it’s time to arrest someone, that individual is obligated to submit to arrest. They will then have every opportunity for due process in our court system.

That is wrong for a couple of reasons. First, a prosecution for resisting arrest requires that the arrest itself be lawful. In other words, you are only required to submit to a lawful arrest. More on that later.

Second, the promised due process is illusory. It's a nice concept, and we have all sorts of rules and such, but our system often produces gross injustices, with little or no recourse for the person who waited in vain to be heard and treated fairly. What is undeniable is that the "due process" de Blasio touts is a mirage, a system of rules that elevate form over substance. Or, as the old Roy Bean line goes, "First we have a fair trial, then we hang him."


I could go on and on about this, but let me just say that any criminal defense lawyer could tell you all sorts of stories about the abject lack of meaningful due process. The quality of the local judiciary aside, discovery is often withheld, all manners of games are played in the grand jury, prosecutorial obligations are often ignored, and routine police testilying goes unnoted and unpunished.

Moreover, as Wegman notes, there are all sorts of collateral consequences to being arrested. City employees and people who hold certain state licenses (security guards, for example), find that their employers know about their arrest almost immediately, sometimes before the person has seen the judge, and that they have to jump through numerous hoops to keep their jobs, if they're not fired because they didn't show up following their arrest.

Court cases can drag on, requiring people to return to court time and again. I know more than a few people who have reluctantly agreed to plea deals they did not want for crimes they swear they didn't commit just because they could not afford more time off from work, or had been threatened by a supervisor.

Often times people are on parole when they are arrested. The fact that they had police contact, coupled with the initial charges, triggers a parole hold. Thus, while the court had initially released them without bail, they were seized and jailed for violating parole. Even after all the criminal charges were dismissed, the Parole Department often holds them for several more months. Usually, the person agrees to a type of plea deal with Parole that allows them to get out, because to say no would guarantee more time in custody.

The system offers no meaningful protection. Indeed, when Judge John Wilson slammed Bronx ADA Megan Teesdale a few months ago for sitting on exculpatory evidence all the way through a rape trial , Teesdale went unpunished. (See here). What was the Bronx DA's response to his baby prosecutor's constitutional violation? He filed a complaint against the judge. But that's for another post.

Back to my first point. I am not really suggesting that you actively resist arrest. Not because it would be illegal, because it might not be. But because it's not normally in your best interest. Resisting arrest will not help you avoid arrest any more than trying to explain why you shouldn't be arrested to police officers who have already decided to put the cuffs on you. It will, however, help ensure you get your ass kicked. This beat down may then cause the police to upgrade your charges, if only to create a justification for giving you a beating.

Well, you may ask, doesn't that simply enhance the value of my eventual lawsuit and settlement? No, and really, it's a not a good investment. Better to comply (and please, don't ramble on about lawsuits or how you going to get people fired. Take a deep breath and roll with the process as best you can).

As for Wegman, he correctly notes that,

But it’s not a one-way street. The civic trust that police depend on to do their jobs is always fragile, and they must nurture it by behaving with consistency, fairness and restraint. Increased instances of resistance, rather than serving as an opportunity to scold the public, should be a red flag to the police and the mayor that, particularly in the most heavily policed communities, this trust has broken down.

In other words, a citizen should never resist arrest, but perhaps the police should resist it more often.

True enough. But don't count on it.