(1) A person commits resisting arrest if he knowingly prevents or attempts to prevent a peace officer, acting under color of his official authority, from effecting an arrest of the actor or another, by:
(a) Using or threatening to use physical force or violence against the peace officer or another; or
(b) Using any other means which creates a substantial risk of causing bodily injury to the peace officer or another.
(2) It is no defense to a prosecution under this section that the peace officer was attempting to make an arrest which in fact was unlawful, if he was acting under color of his official authority, and in attempting to make the arrest he was not resorting to unreasonable or excessive force giving rise to the right of self-defense. A peace officer acts "under color of his official authority" when, in the regular course of assigned duties, he is called upon to make, and does make, a judgment in good faith based upon surrounding facts and circumstances that an arrest should be made by him.
(3) The term "peace officer" as used in this section and section 18-8-104 means a peace officer in uniform or, if out of uniform, one who has identified himself by exhibiting his credentials as such peace officer to the person whose arrest is attempted.
(4) Resisting arrest is a class 2 misdemeanor.
Source: L. 71: R&RE, p. 454, 1. C.R.S. 1963: 40-8-103. L. 72: p. 593, 69. L. 77: IP(1) amended, p. 965, 37, effective July 1. L. 81: (1)(b) amended, p. 981, 5, effective May 13.
Law reviews. For article, "Impeding Unlawful Arrest: A Question of Authority and Criminal Liability", see 61 Den. L.J. 655 (1984).
The general assembly is free to prescribe different punishments for conduct perceived to result in varying degrees of social consequences, and the distinction between this section and 18-2-203 (1)(f) is not arbitrary or inadvertent. Therefore 18-2-203 (1)(f) is not unconstitutional. People v. Wieder, 693 P.2d 1006 (Colo. App. 1984), aff'd, 722 P.2d 396 (Colo. 1986).
Resisting arrest is distinguishable from second degree assault on a peace officer, as described in 18-3-203, and third degree assault, as described in 18-3-204, and therefore these sections do not violate equal protection. This section and 18-3-204 require that the defendant act knowingly, whereas 18-3-203 requires that the defendant act intentionally. Further, 18-3-203 requires the defendant to intend to cause bodily harm, while this section requires only that the defendant use or threaten to use physical force. People v. Whatley, 10 P.3d 668 (Colo. App. 2000).
Section allows reasonable force. A citizen in resisting an unlawful arrest cannot act with any more force than could the officer in effecting a lawful arrest. This section does not broaden the long accepted rule that one may not act to protect himself or property, whether it be in self-defense or otherwise, with more force than is reasonably necessary. McDaniel v. People, 179 Colo. 153, 499 P.2d 613, cert. denied, 409 U.S. 1060, 93 S. Ct. 558, 34 L. Ed. 2d 512 (1972) (decided under former 40-7-57, C.R.S. 1963).
Use of force prohibited. A person may not use force to resist being placed under arrest or in protective custody by a police officer engaged in the performance of his duties, regardless of whether the police conduct is unlawful. People v. Hess, 687 P.2d 443 (Colo. 1984).
The unit of prosecution for resisting arrest is the number of discrete volitional acts of resisting arrest. The unit of prosecution is not based on the number of victim-officers resisted or the number of arrests resisted. People v. Lowe, 2020 COA 116, 486 P.3d 397.
A person is "arrested" when an officer applies a level of physical control over the person resisting arrest so as to reasonably ensure that the person does not leave. Thomas v. People, 2021 CO 84, 500 P.3d 1095.
In this case, the deputies effected the defendant's arrest when they handcuffed him. It was improper for a jury to consider defendant's conduct after he was handcuffed with regard to the resisting arrest charge. Thomas v. People, 2021 CO 84, 500 P.3d 1095.
Where defendant was charged with both resisting arrest and second degree assault, one of the factors in determining whether the defendant is guilty of one or both of the charges shall be whether the actions of the defendant, which caused injury to the officers, were continuous, stemming from his efforts to resist arrest, or whether there was a break between his actions to thwart the officers efforts to arrest him and the actions which lead to the injury of the officers. People v. Armstrong, 720 P.2d 165 (Colo. 1986).
A person using violence against a peace officer to avoid arrest commits the crime of resisting arrest up to the point of arrest. However, after the arrest is made, a person in custody who uses violence against a peace officer commits second degree assault under 18-3-203. People v. Stanley, 56 P.3d 1241 (Colo. App. 2002).
Resisting arrest is a lesser included offense of second degree assault on a peace officer under the strict elements test. People v. Snider, 2021 COA 19, 491 P.3d 423.
Self-defense instruction required for case involving unreasonable or excessive force during an arrest when defendant charged with resisting arrest. Self-defense instruction is required when evidence has been presented that officers displayed weapons and were commanded to discharge them in course of effecting arrest and that their conduct was unreasonable or excessive under the circumstances. People v. Fuller, 781 P.2d 647 (Colo. 1989).
Resisting arrest applies only to arrests made by peace officers acting under color of official authority and not to an off-duty police officer privately employed as a security guard for a skating rink. People In Interest of J.J.C., 835 P.2d 553 (Colo. App. 1992), aff'd, 854 P.2d 801 (Colo. 1993).
Defendant may not respond to an unreasonable search or seizure by a threat of violence against the officer and then rely on the exclusionary rule to suppress evidence pertaining to the criminal act of obstructing a peace officer and resisting arrest. People v. Brown, 217 P.3d 1252 (Colo. 2009).
Conviction sustained by evidence. Feste v. People, 93 Colo. 206, 25 P.2d 177 (1933) (decided under former C.L. 6793); People v. Mason, 632 P.2d 616 (Colo. App. 1981).
The undisputed record shows defendant was in custody when he tried to escape from the police, so there was no basis for a lesser included instruction for resisting arrest. People v. Jompp, 2018 COA 128, 440 P.3d 1166.
Applied in People v. Jackson, 198 Colo. 193, 601 P.2d 622 (1979); People v. Annan, 665 P.2d 629 (Colo. App. 1983).