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Appeals court: Running away can constitute 'resisting arrest'

Email|Link|Comments (5) November 13, 2008 07:39 PM

By Globe Staff

Police may be able to charge a suspect with resisting arrest just for running away from them, the state appeals court ruled today.

Upholding the conviction of Luzander Montoya, a man who fled Holyoke police on the night of Sept. 11, 2005, the Massachusetts Appeals Court said a suspect being chased can be charged with resisting arrest if, in running away, he or she creates “a substantial risk of causing bodily injury” to the officers.

Montoya’s attorney had argued that his running away from the two officers was “purely passive conduct.”

But the court noted that Montoya ran across a parking lot and down a ramp, scaled a chain-link fence, and jumped 25 feet into a shallow canal. It was late at night and the area was poorly lit. The other side of the fence had no ledge that would permit a person to land on it.

Neither officer jumped over the fence and followed Montoya into the canal. Montoya gave up after the officers shouted at him through the fence. He was retrieved from the canal when a ladder was lowered to him, the court said in an opinion written by Justice Charlotte Anne Perretta.

But the "circumstances present more than sufficient evidence" that Montoya's conduct could have caused an officer to be injured, and the charge could be presented to the jury, the court ruled.

5 comments so far...

This is so stupid!Not even justice. If the boston tea party happened today our guys would be in jail, and why arent the police held responsible when they shoot people"by accident"?

Posted by Sarah November 13, 08 11:52 PM

It would seem to me that to sustain a charge of resisting arrest, the state would have the burden of showing that arrest was, in fact, imminent. We automatically assume that an individual running from the police is a "suspect," but what if the act of running from police is simply the result of a phobia. I suspose there should be a two-prong test employed: 1.) whether the person fleeing was in fact a suspect, and 2.) whether it was more likely than not that the person fleeing would have been arrested prior to flight.

Posted by Michael Noonan November 14, 08 05:28 AM

Well golly gee how kind of the courts to back the police. This one is a no brainer. If you resist being arrested in ANY manner other then verbal, you are RESISTING, DUH !

Posted by chuck November 14, 08 06:45 AM

hee hee hee......thought it was the m----o country when he was crossing that canal....hee hee

Posted by steeeev November 14, 08 08:16 AM

Of course it's resisting arrest if you run away. I don't like the addition of the "substantial risk of causing bodily injury” part. Just running away should be sufficient.

Posted by kat November 14, 08 09:54 AM