Irresistible: Bills seek transparency on resisting arrest

Texas state Rep. Harold Dutton has filed a sweet little bill, HB 1219, with the sole purpose of requiring prosecutors who charge a defendant with "resisting arrest" to say what was the underlying offense for which they were originally being arrested. State Sen. Konni Burton has filed similar legislation, SB 494, which would require that information to be included in police offense reports when resisting arrest charges are filed.

For example, Sandra Bland was eventually booked for resisting arrest, but the arrest she was resisting was for failure to signal a lane change. Burton's bill would require that information to be included in a police report and Dutton's would require its inclusion in the prosecutor's charging document.

These bills speak to an issue that came up repeatedly when your correspondent was ACLU of Texas' Police Accountability Project Director from 2000-2006: Some police officers use "resisting arrest" essentially as a form of "contempt of cop" charges. When that's the only charge, it's a red flag that justifies further review because often the arrest turns out to be trumped up or the facts turn out to differ from the arresting officer's official narrative.

It's such a dubious tactic that some departments use it as an early warning sign, flagging officers who use it too often for further review, retraining,  etc.. WNYC reported in 2014 that "departments around the country look for combinations of indicators to spot patterns of questionable behavior. Many, for example, also look at cops who regularly charge people with resisting arrest." That story quoted long-time policing expert Sam Walker declaring that, “There’s a widespread pattern in American policing where resisting arrest charges are used to sort of cover – and that phrase is used – the officer’s use of force,” said Walker, the accountability expert from the University of Nebraska. “Why did the officer use force? Well, the person was resisting arrest.”

Occasionally the MSM latches onto this phenomenon, though mostly it's obscured by the vastness and opacity of the justice system and immunity afforded to police when people complain. NPR's Morning Edition broached the issue two years ago, and the Daily Beast followed up with an item titled, "When the only crime is resisting arrest."

More recently, in December News.mic reported statistics from the NYPD to show that the charge was being overused by a relative handful of officers.

just 15% of New York Police Department arresting officers generate over 50% of all "resisting arrest" charges, while an even smaller group of just 5% accounted for over 40% of those incidents.

That statistics again: Just 5% of the entire NYPD (roughly 34,500 officers) were involved in over 40% of the city's "resisting arrest" incidents. 

In the 51,000 cases that WNYC identified, over 20,000 were reported by that 5% of officers.

We don't have a lot of Texas statistics available on this that I'm aware of, but last year Chase Hoffberger at the Austin Chronicle published a story detailing how the downtown district of the Austin Police Department  by far disproportionately used this charge compared to other parts of town, often as the only offense. His article included this graphic:

Annual Arrests by Offense

Charges for most Downtown arrests have fluctuated over the
past decade. Resisting arrest has seen significant growth.

So resisting arrest accounted for 52 percent of the charges listed for the downtown district in 2015; throw in "interfering with public duties," and that's 67 percent of the listed arrests on charges which at times have been euphemisms for "contempt of cop." Before the age of cell phone and dashcam video, such allegations were universally disbelieved. Now everyone knows it can happen. The cop who hollers "stop resisting" while he punches a placid, supine suspect is gaming the system. These bills seek to add one small additional bit of information to help judges and juries better understand the situation.

Finally, an optimist may even imagine a world in which these bills and Burton's SB 271 pass. That legislation would ban arrests for non-jailable Class C misdemeanor offenses. If it gets through, arrests like Sandra Bland's would be, as a practical matter, forbidden; there could be no underlying arrest to resist. And if the underlying arrest wasn't for a Class B misdemeanor or higher, it would become hard to justify the resisting charge to a jury. Taken together, these bills would be an important police accountability upgrade and a vast improvement over the status quo.