The Definition of Active Resistance in Criminal Law

Active Resistance Involves Physical Contact

Person handcuffed
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You've seen it numerous times on television, on newscasts, even in the movies, probably without knowing that it has a legal name: active resistance. The term refers to situations in which an individual resists or impedes the actions of a law enforcement officer and comes into physical contact with him in the process. 

Active Resistance vs. Resisting Arrest

Resisting arrest typically involves active resistance, but active resistance does not always mean that the individual was resisting arrest. Consider this scenario: There's a mob scene in a public venue, maybe a park. Police are trying to break it up. In response, one of the individuals involved in the gathering shoves a police officer. Maybe he does this so he can flee the scene before arrests are made, but if officers have not attempted to arrest him, this doesn't rise to the level of resisting arrest – yet. He might push the officer to protect a friend or even without realizing that the individual was a police officer. 

Whatever his reasons, he made contact with the officer and as such offered active resistance in the unfolding scene. He took physical action in the commission of an event. 

Active Resistance vs. Passive Resistance

Criminal law also provides for something called passive resistance. The best way to describe passive resistance is to apply the literal definition of the word "passive." Merriam-Webster offers three definitions:

  • Acted upon by an external agency
  • Lacking in energy or will
  • Induced by an outside agency 

All infer indifference to or ignorance of an outside force. Passive resistance might occur if the individual was pushed into the officer by someone else. It could occur if he lost consciousness and collapsed at the officer's feet, tripping him and causing him to fall.

And what if the mob simply staged a sit-in? No physical violence was involved – they simply planted their posteriors on the grass. It, too, is passive resistance, at least until an officer tries to lift one of the protesters to his feet and the individual attempts to pull away or otherwise use physical force to prevent it from happening. Then the situation potentially becomes one of active resistance, depending on the individual's response.

Possible Defenses and Probable Penalties

More often than not, active resistance is a component of a more serious charge of resisting arrest or as part of the commission of another crime. It is not often cited as a crime by itself. Active resistance can be used to justify excessive force by police officers, and it often is. For example, if a suspect is tasered in the process of apprehension or arrest, law enforcement will almost certainly cite his active resistance as the reason. 

Likewise, a suspect might allege that he was merely defending himself against police brutality when he made physical contact with the officer. It can be a real legal gray area. 

Resistance in General

There are at least ten different types of recognized resistance in criminal law, and each falls into one of the above two categories – or, at least, it's supposed to. Turning one's back on a police officer and ignoring him is non-responsive resistance. Physical assault on an officer is active resistance, and it is subject to penalties of its own. 

The division between passive and active resistance is typically determined in court when the overall circumstances of the situation are weighed: what, when, how, why and where.