Would dodging, or otherwise itentionally avoiding, being shot by the police be considered resisting arrest? Mainly regarding U.S. law, but interested if any other law adresses this.
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1Are you talking about evading shots aimed in general at a crowd (i.e., during a riot or insurrection); or evading when one is the specific target of an arrest attempt, i.e. during a traffic stop? And when/if a weapon is shown by the person in question?– BlueDogRanchCommented Mar 16, 2017 at 0:50
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1The latter one.– MrUnderpantsCommented Mar 16, 2017 at 0:51
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1There was some Facebook clickbait going around about a police officer shooting at a man, missing, and killing another officer, with the man shot at charged for manslaughter, but I didn't follow that link, and now can't find any reference.– SCDCommented Nov 16, 2021 at 18:12
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1 Answer
Prior to Tennessee v. Garner, 471 U.S. 1 (1985), common law allowed police to use deadly force to effect the arrest of a person suspected of a felony. Even though SCOTUS there held that such a practice violates Fourth Amendment civil rights, I was surprised to find that in some states it is still lawful for police to use deadly force to effect an arrest!
Let us examine the most extreme case, which is that the police can legally shoot at you to effect your arrest. As explained here, you are always allowed to resist "excessive force." If you make it to court, these qualifications (e.g., "necessary" and "excessive") are ultimately decided based on what a "reasonable person" would have believed in the situation. So if a cop shoots at you, and you "dodge" the bullet, it is possible for you both to be found not guilty of any crime. I.e., the cop can be found to have acted "reasonably" because he believed you were a violent felon and shooting you was the only way to stop you. And you can be found to have acted "reasonably" because you believed you were being subject to excessive force.
While this is an interesting hypothetical, in practice of course by the time a cop is shooting at you you are almost certainly going to be charged with resisting arrest. Or, if the cop fired in self-defense (rather than to effect an arrest) you will be charged with a number of far more serious crimes (starting with felony assault, reckless endangerment, and going on from there...).
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4If SCOTUS has found a law unconstitutional, a state legislature not bothering to remove it or adding a new version later does not override the unconstitutionality - it's not lawful just because they ignore (the highest enforceable interpretation of) a supreme law saying it is not.– user4657Commented Mar 16, 2017 at 8:58
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2@Nij: so one would think. See the law review I linked: "Part III explains why, contrary to the belief of many, the decision in Garner did not require states to abandon the common law rule." Highlight: "States may be required to strike down laws, but they can’t be required to make them—or get rid of excuses or justifications they may have in the law. States have to obey the Constitution, but they do not have to criminalize violations of the Constitution."– feetwet ♦Commented Mar 16, 2017 at 12:52
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In what way is condoning violations of the Constitution not itself a violation?– VikkiCommented Jun 8, 2022 at 0:23