Punishing Involuntary Resistance

53 Pages Posted: 2 Apr 2024

Date Written: March 1, 2024


Prosecutors should have to prove voluntariness in cases arising out of resistance to arrest. During an arrest, police violence—such as the use of pepper spray or police canines—may induce involuntary resistance. Such resistance may give rise to criminal charges. The actus reus element of criminal responsibility, however, provides that a person may only be held criminally responsible for voluntary conduct.

And yet, prosecutors are often not forced to prove voluntariness in resisting cases. Instead, trial courts reject requests for voluntariness jury instructions, shift the burden to resisters to prove involuntariness, and—in some cases—disregard the voluntariness requirement altogether. This subversion matters because it wrongfully enables the criminalization of involuntary resisters.

Psychological and other scientific literature suggest that stressful events—like an arrest—may evoke great fear. Such fear may be in-born, or conditioned by violent and racially subordinating policing, or both. The more imminent the fearsome threat, the less control one may have over their response thereto, and the more likely they are to resist. Thus, during some arrests, the state may induce the resistance it punishes.

This Article contributes to the voluntariness requirement scholarship by offering a normative theory for how the requirement should be applied in resisting cases. This Article calls for making voluntariness an explicit, essential element of resisting offenses. In doing so, this Article reveals a means by which factfinders may disrupt cycles of harm perpetuated by police violence and criminal punishment.

Keywords: criminal law, race and the law, psychology, neuroscience, actus reus, act requirement, voluntary act requirement, resisting arrest, assault on an officer, law of arrest

Suggested Citation

Shukur, Omavi, Punishing Involuntary Resistance (March 1, 2024). Georgetown Law Journal, Vol. 113, 2024, Available at SSRN: https://ssrn.com/abstract=4744704

Omavi Shukur (Contact Author)

Columbia Law School ( email )

435 West 116th St
NEW YORK, NY 10027

HOME PAGE: http://https://www.law.columbia.edu/faculty/omavi-shukur

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