can someone resist in this position?
WHO CAN EVER FORGET THE DEATH OF ERIC GARNER ON JULY 17, 2014?
NJ CRIMINAL LAWYER
AFTER NEW YORK POLICE DEPARTMENT OFFICERS APPROACHED GARNER ON SUSPICION OF SELLING CIGARETTES WITHOUT TAX STAMPS, THEY PROCEEDED TO ARREST GARNER.
AS OFFICERS TRIED TO PLACE GARDNER'S WRISTS BEHIND HIS BACK, GARDNER PULLED HIS ARMS AWAY. THE SITUATION ESCALATED, AND AFTER GRABBING GARNER'S NECK AND TACKLING HIM TO THE GROUND, MORE OFFICERS JOINED THE INITIAL ARRESTING OFFICER. THE SITUATION WENT FROM BAD TO WORST IN A MATTER OF SECONDS.
Gardner repeatedly said "I can't breathe". He stated "I cannot breathe" eleven times while lying face down on the sidewalk. While one officer was choking, half a dozen others were holding him down. He soon lost consciousness and is no longer with us today.
The New York City Medical Examiner's Office report stated that the cause of death was compression of the neck (choke hold) the death was ruled a homicide and made national and international headlines. Protesters filled the streets with charges of police brutality and raised awareness of illegal police procedures.
Approximately one year later the city of New York and the Garner family reached in out-of-court settlement in the amount of $5.9 million for the New York City police officers conduct.
Although This case involves an incident occurring in the state of New York, fundamental issues surrounding the basis for the prosecutor to bring forth "resisting Arrest" charges remain the same. The case here involved a defendant who was alleged to have resisted arrest. Tragically, he died when the arrest escalated.
What constitutes resisting arrest in New Jersey? Does an accused have to know that they are being placed under arrest? Does the defendant's conduct require a purpose to prevent an arrest?
The section of the New Jersey code which outlines the elements for resisting arrest or eluding a police officer can be found under section 2C: 29 – 2
The state of New Jersey categorizes resisting arrest into three categories.
Regardless of how many officers are involved in an attempt to arrest someone accused of resisting arrest in New Jersey, the alleged crime is considered a single charge.
Remember, offenses are committed against the state of New Jersey, not the officers attempting to arrest. To prove resistance of arrest, the prosecutor must simply show two elements:
1) That the defendant knew he was being arrested; and
2) he nevertheless resisted. Even if an arrest is illegal, meaning that the officer was mistaken as to the illegality of the criminal conduct, resisting arrest under the circumstances will nevertheless result in a criminal arrest
As always, any time a police officer or another person is seriously injured or death results from resisting or eluding arrest, the punishment for this crime in New Jersey increases proportionately. The greater the injury to the victim, the greater the defendant's exposure to prison time.
A simple disorderly offense can quickly escalate into third or second degree crime. For example a defendant does not need to know that he has created a risk of death or injury which upgrades the offense to a second degree crime. He is strictly liable if the risk he created contains the mental element requirements of the other elements of the crime.
In its worst possible scenario, where injury or death of another person is caused while a defendant is fleeing in a motor vehicle, the injury is treated as a strict liability aggravated assault under 2C: 12-1b(6) or (7) and the death as a strict liability manslaughter under 2C:11-4a(2).
Once again, we must distinguish obstruction from resistance/eluding and hindering apprehension or prosecution under 2C: 29 – 3. We will discuss hindering in another article.
So, to answer your question as to whether resisting/eluding is a misdemeanor or felony, I will give you the answer most appropriate: it depends.
Contact us immediately.
These are serious charges and you may have very strong defenses available.
These defenses may result in your acquittal or having your case dismissed
About the Author
Mr. Peyrouton is a Criminal Defense Attorney in Bergen County, NJ.