Resisting Arrest Defense in Massachusetts
Under M.G.L. c. 268 §32B, a resisting arrest charge requires two things the prosecution often struggles to prove: a lawful underlying arrest, and the use of actual force. Running away is not resisting arrest. A verbal argument is not resisting arrest. And if the original arrest lacked probable cause, there is no valid charge at all.
What M.G.L. c. 268 §32B Actually Requires
Resisting arrest under Massachusetts law is not as broad as many people assume. The statute has two mandatory elements, both of which the prosecution must prove beyond a reasonable doubt:
- Element 1: A lawful arrest — the arrest being resisted must have been lawful. An officer must have had probable cause to arrest, or reasonable suspicion sufficient to detain. If the arrest lacked legal justification, the resisting arrest charge fails entirely — you cannot be convicted of resisting an arrest that had no legal basis.
- Element 2: Force or the threat of force — the defendant must have used or threatened physical force or violence against the officer. This element is narrower than most people assume. Under Massachusetts case law (see Commonwealth v. Grandison), mere flight — running away from police — does not satisfy this element. Verbal argument, going limp, or passive non-cooperation are also insufficient.
Penalties: Resisting arrest is a misdemeanor carrying up to 2.5 years in the House of Correction and/or a fine up to $500. It is frequently charged alongside assault and battery on a police officer (M.G.L. c. 265 §13D) when the alleged resistance involved physical contact with the officer. Both charges typically arise from the same incident and are handled together.
Resisting arrest charges are also common in situations where an OUI arrest, a drug stop, or a domestic call became physical. The companion charge — the underlying OUI, drug possession, or A&B — must be defended alongside the resisting arrest charge. The outcome of the underlying charge often affects the resisting arrest charge directly.
Where Resisting Arrest Defenses Focus
- Was the arrest lawful? — this is the foundational question. If the stop lacked reasonable suspicion, if the arrest lacked probable cause, or if the officer exceeded their authority, the resisting arrest charge fails as a legal matter. Challenging the lawfulness of the underlying arrest requires examining the police report, dispatch records, and any video from the scene, officer body cameras, or nearby businesses.
- What did "resisting" actually look like? — police reports characterize physical contact in terms that favor the prosecution. Body camera footage, when available, frequently shows a more ambiguous picture: a person pulling their arm away while being handcuffed, turning their body during a pat-down, or moving in a way that was reflexive rather than deliberate. These are not the same as "using force or violence against an officer," and the distinction is a defense.
- Excessive force as context — when police use excessive force during an arrest, a person's physical response may be justified as self-defense against unlawful force. Massachusetts law recognizes a limited right to resist unlawful excessive force. Where the police conduct itself was unreasonable, that context changes the entire character of the alleged "resistance."
- Companion charge strategy — resisting arrest is rarely charged alone. It accompanies an OUI, a drug charge, an A&B, or a disorderly conduct charge. Resolving the companion charge favorably often creates a path to dismissing the resisting arrest charge. The two must be defended in coordination, not separately.
- First-offense resolution — pretrial probation under c. 276 §87 is available for first-time offenders and results in dismissal with no CORI entry. CWOF is another option. Where video evidence does not clearly support the prosecution's account, outright dismissal or a motion to dismiss is the target.
Key Takeaways
- Resisting arrest under c. 268 §32B requires both a lawful underlying arrest and actual force — if either element is missing, the charge fails
- Running away from police is not resisting arrest under Massachusetts law — the statute requires force or the threat of force
- If the arrest lacked probable cause, the resisting arrest charge is legally invalid — challenging the underlying arrest is often the most direct defense
- Body camera footage frequently contradicts the police report's characterization of "resistance" — reviewing it immediately is a priority
- Resisting arrest is almost always charged with a companion offense; the two must be defended in coordination
Frequently Asked Questions
Under M.G.L. c. 268 §32B, resisting arrest means knowingly preventing a police officer from making a lawful arrest by using or threatening force or violence. Two elements are required: the arrest must be lawful, and the defendant must have used or threatened actual force. Verbal protest, flight, and passive non-compliance do not meet the standard.
No. Under Massachusetts law, flight alone does not constitute resisting arrest under c. 268 §32B. The statute requires force or the threat of force directed at the arresting officer. The Massachusetts SJC has held that mere flight is not sufficient. This is a direct defense to charges built primarily on the fact that a defendant ran.
If the arrest being resisted was unlawful — no probable cause, no reasonable suspicion — there is no valid resisting arrest charge. You cannot lawfully be convicted of resisting an arrest that had no legal basis. Challenging the lawfulness of the underlying arrest often requires examining the police report, dispatch records, and any available video.
Up to 2.5 years in the House of Correction and/or a fine of up to $500. It is commonly charged alongside assault and battery on a police officer (c. 265 §13D) when the alleged resistance involved physical contact. Both charges carry the same maximum sentence but are treated as separate offenses.
Resisting arrest focuses on preventing the arrest itself. A&B on a police officer (c. 265 §13D) covers any unconsented touching of an officer, including contact during an altercation unrelated to the arrest process. Both carry up to 2.5 years, but A&B on a police officer is treated as a separate and often more serious charge. Both are commonly filed from the same incident.
Yes. Charges are frequently dismissed or resolved favorably where the underlying arrest lacked probable cause, the evidence of force is disputed by body camera footage, or the defendant has no criminal history. Pretrial probation and CWOF are available for first-time offenders. Resolving a companion charge favorably often creates a path to dismissing the resisting arrest charge as well.
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