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The Massachusetts Legislature defines Resisting Arrest under Massachusetts General Law Chapter 268, § 32B as follows:
Section 32B. (a) A person commits the crime of resisting arrest if he knowingly prevents or attempts to prevent a police officer, acting under color of his official authority, from effecting an arrest of the actor or another, by:
(1) using or threatening to use physical force or violence against the police officer or another; or
(2) using any other means which creates a substantial risk of causing bodily injury to such police officer or another.
(b) It shall not be a defense to a prosecution under this section that the police officer was attempting to make an arrest which was unlawful, if he was acting under color of his official authority, and in attempting to make the arrest he was not resorting to unreasonable or excessive force giving rise to the right of self-defense. A police officer acts under the color of his official authority when, in the regular course of assigned duties, he is called upon to make, and does make, a judgment in good faith based upon surrounding facts and circumstances that an arrest should be made by him.
(c) The term ”police officer” as used in this section shall mean a police officer in uniform or, if out of uniform, one who has identified himself by exhibiting his credentials as such police officer while attempting such arrest.
(d) Whoever violates this section shall be punished by imprisonment in a jail or house of correction for not more than two and one-half years or a fine of not more than five hundred dollars, or both.
The model jury instructions for use in the District Court requires the Commonwealth to prove the following in order for the Commonwealth to prove each element of the offense. The Commonwealth must prove each of the following elements beyond a reasonable doubt at trial:
First: That the defendant prevented or attempted to prevent a police officer from making an arrest of (the defendant) (another person);
Second: That the defendant did so knowingly; and
Third: That the officer was acting under color of their official authority at the time.
To prove the first element, the Commonwealth must prove beyond a reasonable doubt that the defendant prevented or attempted to prevent a police officer from making an arrest of (the defendant) (another person). The Commonwealth must prove that the defendant (either):
• used or threatened to use physical force or violence against the police officer (or another person) (or)
• used some other means which created a substantial risk of causing bodily injury to the police officer (or another person). (Mere flight without the substantial risk of causing bodily injury to the officer is not enough. It is up to you to determine whether the circumstances of the flight created a substantial risk.)
The Commonwealth must also prove that the defendant’s actions occurred before the arrest was completed. An arrest is completed when a person has been detained, placed securely in custody, and is under the control of the police.
To prove the second element, the Commonwealth must prove beyond a reasonable doubt that the defendant knew 1) that the person was attempting to make an arrest and 2) that the person was a police officer. The Commonwealth must prove beyond a reasonable doubt that a reasonable person in the defendant’s circumstances would have understood (they were) (another person was) being arrested. The Commonwealth must also prove beyond a reasonable doubt that the defendant knew the person was a police officer. You may consider whether the officer was in uniform or, if not in uniform, identified themselves by exhibiting their credentials as a police officer while attempting to make the arrest. Such credentials would include a badge, insignia, identification card, police radio, or other police equipment such as a clearly identified police vehicle. You may examine any evidence regarding the defendant’s actions or words, and all of the surrounding circumstances, to help you determine whether the defendant knew the person was a police officer and whether a reasonable person would have known the police officer was attempting to make an arrest.
To prove the third element, the Commonwealth must prove beyond a reasonable doubt that that the officer was acting under color of their official authority at the time. A police officer acts “under color of official authority” when, in the regular course of assigned duties, they make a judgment in good faith, based on the surrounding facts and circumstances, that they should make an arrest. If the Commonwealth has proved all three elements beyond a reasonable doubt, you should return a verdict of guilty. If the Commonwealth has failed to prove one or more of the elements beyond a reasonable doubt, you must return a verdict of not guilty.
If you have been charged with this offense and need a trial attorney with real trial experience and trial solutions, or if you have any questions related to this criminal offense, call Attorney Scambio today at 508-796-5737. Remember, before you decide whether to make any statements to law enforcement, discuss that decision with a competent attorney. Attorney Scambio is available six (6) days a week and will take your call to discuss assisting you in your criminal matter.