Was I resisting arrest?

[jaquin]

What is the name of your state? Tennessee

I was arrested in February 2005 for assult and resisting arrest. I had a trial in April 2005 and found not guilty of the assult charges, but found guilty of the resisting arrest. I had obtained a Judicial Diversion elegiability document earlier through my attorney, but the judge refused to grant Judicial diversion because of his own policy in resisting arrest cases, so I was tried.

I would like to appeal my sentence (10 days, 6 months probation, and $100 fine) and explore options of Judicial Diversion, or jury trial. The witnesses were a hotel receptionist which I was initially accused of assulting -- based on his testimony I was not found guilty of assult, but he could not remember details of the resisting arrest. The other witness was also a policeman -- he also gave sketch recollection of what happened and was not sure; the third witness is my wife who described what happened.

That day my wife had an anxiety attack which is related to her depression, she has not taken her medication for 5 days against doctors advice and became irrational, I tried to stop a phone call which she asked the receptionist to make using my cellular phone. The policeman decided to arrest me for grabbing my phone from the hand of the receptionist. He asked me to put my hands behind my back, instead I placed my left hand and proceeded to turn off the phone with my right, with my back toward the policeman. He tackeled me to the floor still holding on my left arm which was now handcuffed and placed his knee on my back. The officer was pulling on my right arm which was under my chest, but he was pulling in a direction which was causing me pain at my shoulder. I could not vulanterly answer his call and remove my hand from under my chest because of my wight on it, his weight with his knee on my back, and his pulling in the wrong arm-flex direction which was causinig me pain.

The officer became frustrated and perpper sprayed me. The incident to the other officers recollection took about 15 seconds, while the arresting officer could not recall. My demenor earlier was calm, but later agitated. I walked calmly with the officer to the car and did not resist at all. In the officers statement, he said that it took quiet an effort to restrain me. There was some circumstancial evidence that I did not resist, but I did turn my back to him and refused to give him the phone, I faced a corner and when tackeled fell downa dn did not even disturb the vases and decorations near that corner.

I could feel the hostility of the policeman toward me at the very beginning because he thought he was called for domestic violence and my wife was hesterical because of her medical condition; I told him about her illness but he refused to hear. He was more nervous than I did and jumped to the first chance to arrest me for something the court found me innocent of, he then starteled me by tackling me from behind to the ground, then pulled on my arm in the wrong direction and was so quick to use pepper spray. I admit I did not volunteer to give me the hand where I was holding the cellular phone and was trying to turn it off so no one could use it without my pass-code.

I also admit I was preventing letting my arm go in the direction he was pulling becuase that was hurting my shoulder as he was pulling against the natural arm-flex direction. I also was laying face down with one arm handcuffed and one arm glitching to the phone. He was not hurt, bruised, hit or contaced in any manner other than his own over-reaction.

I am considering one of the following 3 venues:

1. Go to a criminal court and hope the judge would grant Judicial Diversion.
2. Sue police for assulting me with unnecessery force and proceed with the trial.
3. Accept the current judgement.

Which option sounds most reasonable now that I offered all details. I was told by a friend that the DA may accept something more reasonable if I promised not to sue police for assulting me. The DA may loose this charge just like he lost on the assult charge and that would make him wide open to a lasuite where an over anxious officer arrested me for TWO things I would be cleared of; and that would give any jury more reason to believe me. I also realize that if I go to criminal court, my 10 day sentence may become 55 days.

I am mostly concerned about the permanent criminal record on my file; as it hurts my career and I feel demoralized becuase of it. I truly think I did not act in a prudent manner and would change that if I ever could, but I certainly did not resist arrest. I learned a valuable lesson here, but truly feel that the punishment is not proportional to the crime, particularly when it comes to listing me along the ranks of criminals. Please advise.

 

[Bravo8]

You have no basis for a lawsuit. The officer did not use excessive force, based upon what you have detailed here. Taking you to the ground and restraining you is a perfectly acceptable action considering you refused to obey his lawful command to place your hands behind your back. Couple that with the fact that you used physical force during your commission of the original crime, and I see a valid reason for the police officer to use physical force to arrest you.

The police are permitted to use force when making an arrest, and have no requirement to wait for active violence or resistance when using physical force. I would likely have treated you in the same manner had I been the officer. The command to submit to an arrest means immediately, not when you damn well feel like it.

The fact that you were found not guilty of the original charge does not negate the validity of the arrest. The police need probable cause to make the arrest, while courts need proof beyond a reasonable doubt. The latter is a much stricter standard than the former.

I'm not familiar with the law in Tennessee, so I'm not sure if your conduct would constitute a violation of Tennessee's resisting arrest statute.

My advice would be to speak with a competent attorney in your area about your appeal options. To be honest, the resisting arrest charge would not fly here in Pennsylvania (as you have described your conduct).

 

[jaquin]

Was the officer over reacting

Tennessee

I was referring to the use of pepper spray, that is what I referred to as an excessive use of force, or assult by an officer. After all, I was on the ground, face down, one hand in cuffs and the other clutching to a phone under my body, with the officers knee on my back. I was pepper sprayed at a distance of less than a foot, my face stuck to the floor where I could not even turn it from the pepper spray direction.

I think the officer over reacted just like he did when reacted to something as an assult -- when the court found that it was not. Lets say this charge was "marginal" as an assult, should he over react to it that way? I was not comitting a crime. Isn't his behaviour of tripping me on the ground over reacting? do I have the right to protect myself when feeling threatened with such over reaction?

This case was full of wrong assumptions by police: they responded to what they thought was domestic violence, when it was not. They did not care at all when I told them about my wifes anxiety attack. They sympathized with her because they thought I did something to her (she was almost hysterical); I think that is why the officer over reacted.

My question is: what would be the major concepts that could be used for my defence here. This case would be expensive, and I hat to was my time, court time and witnesses time if what I am saying has no merit. Please advise.

 

[Bravo8]

There is a concept called the "Force Continuum" in law enforcement, although it is not really a "continuum", in that an officer can skip steps as necessary.

Anyway, it generally goes something like: Officer presence, verbal commands, hands-on, chemical (pepper spray) and other less-than-lethal means, and deadly force.

The verbal commands were not enough to get you to submit to arrest, nor was the hand-on force. The pepper spray was deployed due to you requiring an escalation of force.

I don't think the officer's use of pepper spray consitutes excessive force. The purpose of pepper spray is pain compliance, and you were noncompliant.

It's difficult for me to say whether the officer over-reacted or not, since I was not present. I don't know your demeanor, true actions, etc.

As for your defense, I can't say. A total time of 15 seconds of somewhat passive (as you describe it) resistance would not merit a charge of resisting arrest here, but I can't speak as to the way things operate in Tenn.

 

[parrotmom]

California or Tennessee??

Which state are you really in? I noticed a previous post from you that stated you were in California.