Resisting arrest and freedom of speech

Another common offense is resisting arrest. While many charges of resisting arrest are justified, occasionally police officers who themselves are prone to violence or over-reaction might charge an individual with resisting arrest. As defined by the standard California jury instruction:

Every person who willfully resists, delays, or obstructs any [peace officer] [public officer] in discharge or attempt to discharge any duty of [his] [her] office or employment, and who knows or reasonably should know that the other person is a [peace officer] [public officer] engaged in the performance of [his] [her] duties, is guilty of a violation of Penal Code section 148, subdivision (a), a misdemeanor.

In order to prove this crime, each of the following elements must be proved:
1. A person willfully resisted, delayed, or obstructed a [peace officer] [public officer];
2. At the time the [peace officer] [public officer] was engaged in the performance of [his] [her] duties; and 
3. The person who willfully resisted, delayed, or obstructed knew or reasonably should have known that:
(a) the other person was a [peace officer] [public officer];
(b) and was engaged in the performance of [his] [her] duties. (CALJIC 16.102)

Sometimes an officer may attempt to charge an individual with resisting arrest for merely verbal resistance, which may violate an individual's constitutional right to criticize the government under the First Amendment. In a resisting arrest trial, Mr. Feinland was given the following jury instruction in Contra Costa County:

A person may not interpose any obstacles which in any manner impedes, hinders, interrupts, or delays a lawful arrest; provided, however, mere verbal comments or remarks, including verbal challenges, protests and abuse directed at a police officer, cannot form the basis of a violation of Penal Code Section 148, as such conduct is protected by the First Amendment.

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