The belief that you have a right to resist an unlawful arrest is deeply rooted in American legal folklore. In most states, this right has been abolished or severely restricted, with courts and legislatures emphasizing public safety and the dangers of escalating confrontations with law enforcement. However, Georgia stands out as a notable exception: the right to resist an unlawful arrest remains recognized under state law. Yet, this right is far from absolute, and exercising it can carry significant legal risks. Here’s what you need to know about resisting arrest in Georgia in 2025.
Georgia’s Unique Stance: The Common Law Right Lives On
Unlike the majority of states, Georgia has maintained the common law right to resist an unlawful arrest. In a landmark 2021 decision, the Georgia Supreme Court ruled that, because the state never passed a law abolishing the right, the centuries-old English common law principle still applies. Justice John Ellington, writing for a unanimous court, explained that Georgia’s legal tradition-dating back to its adoption of English common law in 1776-includes the right to physically resist an unlawful arrest or escape from unlawful detention.
This means that if you are being arrested without probable cause or a valid warrant, you may legally use force to resist-so long as that force is proportionate to the situation. For example, if the officer is using non-lethal force, you cannot escalate to deadly force in your resistance.
What Counts as “Proportionate” Force?
The Georgia Supreme Court was clear: resistance must be reasonable and proportionate. One cannot deploy more force than is necessary to escape or prevent the unlawful arrest. If you are handcuffed and inside a patrol car, for instance, damaging the vehicle or attacking officers likely exceeds the bounds of proportionate resistance. The courts will scrutinize the circumstances to determine if your actions were justified or excessive.
Legal Risks: Resisting Arrest Charges and Penalties
Even though the right to resist exists, it’s important to understand the practical risks. Georgia law defines resisting arrest as knowingly obstructing or hindering a law enforcement officer, probation officer, court official, or anyone acting in a law enforcement capacity while they are performing their duties. This can include not just physical resistance but also running away, giving false information, or even verbally objecting in a way that interferes with the arrest.
- Misdemeanor Resisting Arrest: Includes actions like refusing to comply, pulling away, or hiding. Penalties can include up to one year in jail and a $1,000 fine.
- Felony Resisting Arrest: If resistance involves violence or poses a substantial risk of harm, it can be charged as a felony, with penalties ranging from one to five years in prison and higher fines.
If you are charged with resisting arrest, you may face these penalties in addition to any charges related to the original incident. If you injure an officer or damage property, you could also face aggravated assault or other serious charges.
Proving the Arrest Was Unlawful
The burden is on the defendant to prove that the arrest was, in fact, unlawful. This can be a complex and difficult process. Courts will examine whether the officer had probable cause, a valid warrant, or reasonable suspicion to make the arrest. If the arrest is found to be lawful, any resistance-no matter how minor-can result in a conviction for resisting arrest.
Practical Realities: Why Resisting Is Still Risky
While Georgia law technically allows resistance to unlawful arrests, most legal experts and defense attorneys strongly advise against it. Here’s why:
- Escalation: Physical resistance can quickly escalate into violence, putting you and officers at risk of injury or worse.
- Additional Charges: Even if the arrest is later found to be unlawful, you may still face charges for any harm or damage caused during the resistance.
- Legal Complexity: Proving an arrest was unlawful is challenging and often requires a lengthy court battle.
- Officer’s Word: In many cases, it’s the officer’s account versus yours, making it difficult to establish the facts in your favor.
What Should You Do If You Believe an Arrest Is Unlawful?
The safest and most effective way to challenge an unlawful arrest is not to resist physically, but to comply and contest the arrest later in court. Here’s what legal professionals recommend:
- Remain Calm: Don’t argue or run or physically resist.
- Document Everything: Take mental or actual notes of the officer’s name, badge number, and the circumstances.
- Invoke Your Rights: Politely state that you wish to remain silent and want to speak to an attorney.
- Fight the Arrest in Court: Your lawyer can challenge the legality of the arrest and seek to have charges dismissed if your rights were violated.
Conclusion: Know the Law, Know the Risks
Georgia is one of the few remaining states where the right to resist an unlawful arrest is still recognized by the courts. However, this right is limited, fraught with risk, and can expose you to serious criminal charges if not exercised carefully. In practice, the best way to protect your rights is to comply with law enforcement and seek legal recourse afterward. If you are facing charges for resisting arrest or believe you were unlawfully detained, consult a qualified Georgia criminal defense attorney immediately to protect your rights and build your defense.
Disclaimer
The information provided on this blog is for general informational purposes only and is not intended to serve as legal advice. While I am a paralegal, I am not a licensed attorney, and the content shared here should not be construed as such.
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