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In Wisconsin, resisting arrest charges fall under statute 946.41 and are often charges as a Class A misdemeanor. Resisting arrest and obstructing an officer are similar charges. Resisting an arrest is to oppose an officer by force whereas obstructing an officer is preventing an officer from doing their duties. To prosecute, the state has to prove the officer was lawful and the resisting was done intentionally.
“Resisting or Obstructing an Officer” is defined in Wisconsin statute 946.41, which states that “whoever knowingly resists or obstructs an officer while such officer is doing any act in an official capacity and with lawful authority is guilty of a Class A misdemeanor.” “Resisting” and “obstructing” are similar but different offenses, so it is important to know the difference. Especially because these definitions can determine whether you are charged with a felony or if you are able to get the charge dropped or reduced.
Although “obstructing” and “resisting” are listed under the same statute, there are different definitions for each.
“Obstructing an officer” means that your conduct “prevents or makes more difficult the performance of the officer’s duties.” In order to qualify as “obstructing,” the officer must be doing an act in an official capacity and be acting with lawful authority.
Comparatively, “resisting an officer” means to oppose the officer by force or threat of force, and the resistance must be directed to the officer personally. Again, in order to qualify as “resisting,” the officer must be doing an act in an official capacity and be acting with lawful authority.
One example of an officer acting in an official capacity would be a “stop and question,” which is where an officer reasonably believes that a person is committing, has committed, or is about to commit a violation of the law. An officer is then allowed to stop the person long enough to ask the person to identify themselves, ask for an explanation of the person’s conduct and further investigate any potential violation of the law.
In order to be considered to be acting with “lawful authority,” an officer must be in compliance with both state and federal constitutional law, in addition to any state statutes.
A common example of resisting an officer is tensing your arms or pulling your arms away while an officer attempts to place you in handcuffs. Another example may be refusing to stand up from a sitting position in order to be placed into handcuffs. Any action, or lack of action, that would make taking you into custody more difficult could qualify as “resisting arrest.”
Obstructing an officer can also arise out of a variety of scenarios. Some examples include:
However, it is important to note that the law does not support an arrest for obstruction if you refuse to give your name by remaining silent; simple silence, without more, is not sufficient evidence to constitute obstruction.
Resisting arrest is most commonly charged as a misdemeanor offense with potential penalties of a $10,000 fine and/or 9 months in jail.
You will typically see “Resisting or Obstructing an Officer” charged as a Class A misdemeanor. However, there are certain scenarios that can cause you to be charged with a felony offense under Wis. Stat. sec. 946.41.
If you lie to police or manipulate evidence with the intent to mislead an officer, and then at trial the false information or false physical evidence is used and results in a guilty verdict, you could be charged with a Class H felony punishable by up to a $10,000 fine and/or 6 years in the Wisconsin state prison system.
If substantial bodily harm or a soft tissue injury occurs as a result of the resisting behavior, you could be charged with a Class H felony punishable by the same penalties as listed in the previous paragraph. “Substantial bodily harm” is defined as injury that causes a laceration requiring stitches, staples or adhesive, any fracture of a bone, a broken nose, a burn, petechia, temporary loss of consciousness/sight/hearing, a concussion, or loss or fracture of a tooth.
Similarly, if great bodily harm is caused to an officer as a result of the resisting behavior, you could be charged with a Class G felony, punishable by up to a $25,000 fine and/or 10 years in the Wisconsin state prison system. “Great bodily harm” is defined as injury that creates a substantial risk of death or which causes serious permanent disfigurement or which causes a permanent or long-term loss of the function of any part of the body, internal or external.
A similar offense, although technically listed under a separate statute, Wis. stat. 946.415, is “Failure to Comply with Officer’s Attempt to Take Person Into Custody,” a Class I felony punishable by a $10,000 fine and/or 3.5 years in the Wisconsin state prison system.
To be found guilty of this offense, the state would have to prove that you refused to comply with an officer’s attempt to take you into custody, such as retreating or remaining inside a building. Then they would need to prove that through action or threat, you attempted to prevent the officer from taking you into custody. And finally, they would need to prove that while doing the previous things, you remained or became armed with a weapon or threatened to use a weapon, regardless of whether you actually had a weapon.
Whether you can have a resisting arrest charge dropped depends on the facts of your case. It’s best to have an experienced attorney review the evidence in your case and let you know if any of the following options are available.
Wisconsin law recognizes a limited privilege to resist arrest as self defense only in the event that unreasonable force is used.
In general, Wisconsin law recognizes a privilege for someone to threaten or intentionally use force for the purpose of preventing or terminating what the person believes to be an unlawful interference with his or her person by someone else. This is found in Wis. stat. sec. 939.48(1).
However, the Wisconsin Supreme Court in State v. Hobson, 218 Wis. 2d 350 (1998) decided that even if you believe your arrest is unlawful, you don’t have the same privilege to resist arrest as a method of self defense. This is partially because our modern legal system provides many non-violent avenues to address any alleged illegal action done by the police, like filing a formal complaint with the police department or filing a motion to suppress. Because of this, the Wisconsin Supreme Court concluded that there is no right to forcibly resist arrest unless unreasonable force is used.
As discussed above, an officer is required to be “acting in an official capacity” and “with lawful authority.”
If you believe that an officer does not have probable cause to arrest you, that can potentially be addressed through a motion to suppress. If the court finds that there was no probable cause to arrest you, all evidence following that illegal arrest could be suppressed, or thrown out, potentially resulting in the dismissal of a “resisting arrest” charge.
A similar argument could also be made at trial, because in order to be found guilty of resisting arrest, the jury would have to find that the officer was acting with lawful authority. If the jury does not believe beyond a reasonable doubt that the officer had lawful authority to arrest you, you could be found not guilty.
Depending on the facts of your case, there may be options to challenge the prosecution if you are charged with a resisting or obstructing offense. As discussed above, one example may be if you believe the officer was not acting with lawful authority, you could have a possible defense to file a motion or use as an argument at trial.
