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Resisting Arrest vs. the Fourth Amendment

DOWNTOWN LOS ANGELES- The Los Angeles Police Department commonly arrests people for “resisting arrest.” A deeper look into this process by questioning its legalities sheds new light on an old law enforcement excuse. Legal experts should question this, including both the City Attorney and the District Attorney. (FULL DISCLOSURE- I am NOT a legal expert, nor do I play one on TV!) 

Penal Code section 148 (a) is commonly known as “resisting arrest.” Clearly, this language is what requires immediate challenge. The presumption is that a person being arrested for a criminal act(s) who then resists, should receive the additional charge of “resisting.” 

The problem is that LAPD and many other law enforcement agencies across the nation wrongfully use resisting arrest as a “primary” charge when its legal language strongly implies that it is a “secondary charge.” 

People who have been arrested for “resisting” as a primary charge have claimed the Fourth Amendment as their legal defense. There are lots of cases that have achieved successful outcomes utilizing this formidable strategy. 

The Fourth Amendment states that “the right of the people to be secure in their persons, houses, papers and effects against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation and particularly describing the place to be searched, and the person or things to be seized.” 

While there are elements within this definition that seemingly apply only to search warrants, there are other elements which seem to apply only to the protection of one’s self from unlawful seizure. 

In Skid Row (commonly known as the Homeless Capital of America,) LAPD often partakes in the action of arresting homeless persons for having tents on the sidewalk during the day. They follow this by completely seizing the tent and all of its contents. A Federal judge ruled against LAPD and the City of Los Angeles in the form of a preliminary injunction barring them from any further illegal seizures. 

The question that can be raised is, “Does LAPD need a search warrant before seizing a homeless person’s tent/encampment?” According to the Fourth Amendment, there would be a whole lot of judges signatures needed for the confiscation of tens of thousands of homeless people’s belongings all across LA County. 

As it relates to seizing property, the Fourth Amendment seems clear, but in regard to “the right of the people to be secure in their persons”, the Fourth Amendment has a lot of gray areas -- meaning room for interpretation. 

Can law enforcement simply walk up to people and arrest them? Can they simply walk up and arrest them for “resisting arrest?” 

There is a strong hint of abuse of authority/abuse of power every single time resisting arrest is used as a primary charge. 

Natural responses often are, “Why am I being arrested?” and, “What was I resisting?” Common law enforcement replies are, “You’re being arrested for resisting.” The conversation can go around in circles without any true and/or valid explanation by law enforcement for detention, sometimes for no good reason. Some officers and deputies even go as far as to say, “Am I supposed to explain (and possibly debate) everything to you before I put handcuffs on you?” 

Law enforcement has a “comfort zone” of zero culpability because they conveniently defer to the justice system with the mindset, “We can arrest you for anything….It’s up to the court system to either enforce or reject the case.” 

And in the case of “resisting arrest” used as a primary charge, what protections do “We, the People” really have? 

(General Jeff is a homelessness activist and leader in Downtown Los Angeles.) Edited for CityWatch by Linda Abrams.