Since widespread protests grip our country, it seems fitting to address the Sixth District’s most recent decision on the topic of resisting arrest. State v. Brown, 2020-Ohio-1650 (Apr. 24, 2020).  

A decision that dovetails the right gut call with good legal analysis, the Sixth District reversed Brown’s resisting arrest conviction based on insufficient evidence. 

Why? If the type of resisting arrest Brown was charged with was going to stick, there had to be evidence of physical harm to the officer.  And here, there just wasn’t: Brown was at a gas station when he was stopped for insignificant traffic infractions.  But when the officers cranked it up a notch, suddenly asking Brown to get out of the car or he was going to jail, a tussle ensued.  The officers opened the door to drag Brown out of his car, forced him out, and tased him.  Brown then struggled back into his own car and tried to shut the door.  The officer got kicked in the process, as Brown kicked his leg out at the officer who was forcing his way in.  Brown was charged with M-1 Resisting Arrest, among other offenses. 

But here was the problem with up-charging Brown’s resisting arrest charge to an M-1: the type of resisting arrest Brown was charged with has a specific requirement—the defendant must cause physical harm to the officer.  In other words, there must be “some manifestation of harm.” 

Not liking getting kicked does not cut it though.  While on the stand, the officer was asked if he got hurt when Brown kicked him.  His only response?  “It didn’t feel pleasant, no.”  The Sixth District held that while the officer did not need to miss work or go through medical treatment to claim harm, he still needed something more than the unpleasantness of being kicked in the gut.

While we are on the resisting arrest subject, a friendly reminder to our criminal law enthusiasts out there:  under Ohio’s law and most Ohio city ordinances, one can’t be convicted of resisting arrest for resisting an unlawful arrest.  That’s an old distinction.  And still important.