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WPIC 120.06 Resisting Arrest—Elements

11A WAPRAC WPIC 120.06Washington Practice Series TMWashington Pattern Jury Instructions--Criminal

11A Wash. Prac., Pattern Jury Instr. Crim. WPIC 120.06 (5th Ed)

Washington Practice Series TM

Washington Pattern Jury Instructions--Criminal

January 2024 Update

Washington State Supreme Court Committee on Jury Instructions

Part XIII. Miscellaneous Crimes

WPIC CHAPTER 120. Obstructing Governmental Operation

WPIC 120.06 Resisting Arrest—Elements

To convict the defendant of the crime of resisting arrest, each of the following elements of the crime must be proved beyond a reasonable doubt:

(1) That on or about (date), the defendant prevented or attempted to prevent a peace officer from arresting [him] [her];

(2) That the defendant acted intentionally;

(3) That the arrest or attempt to arrest was lawful; and

(4) That any of these acts occurred in the [State of Washington] [City of ] [County of ].

If you find from the evidence that each of these elements has been proved beyond a reasonable doubt, then it will be your duty to return a verdict of guilty.

On the other hand, if, after weighing all of the evidence, you have a reasonable doubt as to any one of these elements, then it will be your duty to return a verdict of not guilty.

NOTE ON USE

With this instruction use WPIC 10.01 (Intent—Intentionally—Definition) and WPIC 2.16 (Peace Officer—Definition).

In element (4) choose from among the bracketed phrases depending on whether the case is in superior, municipal, or district court. See WPIC 4.20 (Introduction). For a discussion of the phrase “any of these acts” in element (4), see WPIC 4.20 (Introduction) and the Note on Use to WPIC 4.21 (Elements of the Crime—Form).

COMMENT

RCW 9A.76.040.

Lawfulness of arrest. The statute requires the prosecutor to prove a lawful arrest. Occasionally, questions arise about whether the underlying arrest was lawful and whether the jury should be instructed on that issue. In State v. Simmons, 35 Wn.App. 421, 667 P.2d 133 (1983), the officer was arresting the defendant pursuant to a warrant but did not have the warrant with him when he made the arrest. The Court of Appeals approved the following instruction given by the trial court:

An officer may arrest a person pursuant to a lawful arrest warrant without having an arrest warrant in his possession if at the time of the arrest the officer declares that the warrant does presently exist and that it will be shown to the defendant as soon as possible on arrival at the place of intended confinement.

State v. Simmons, 35 Wn.App. at 424–25.

The court should fashion similar instructions on an individual basis, reflecting the facts and applicable law in each case. For a discussion of applicable law, see State v. Hornaday, 105 Wn.2d 120, 713 P.2d 71 (1986).

Different analysis than for assault cases. The analysis for the offense of resisting arrest differs from the analysis that applies when the person resisting arrest is charged instead with assault. For the offense of resisting arrest, the Legislature expressly included lawfulness of the arrest as a statutory element. See RCW 9A.76.040. For the offense of assault, the Legislature did not. See RCW 9A.36.031. In assault cases, the lawfulness of the arrest relates to self-defense, although the lawfulness issue is largely irrelevant following the decision in State v. Valentine, 132 Wn.2d 1, 935 P.2d 1294 (1997). In Valentine, the Supreme Court limited the common law right of resistance to an unlawful arrest, so that it can be invoked only when the person being arrested faces physical injury:

In sum, we hold that, although a person who is being unlawfully arrested has a right … to use reasonable and proportional force to resist an attempt to inflict injury on him or her during the course of an arrest, that person may not use force against the arresting officers if he or she is faced only with a loss of freedom.

State v. Valentine, 132 Wn.2d at 21. For a discussion of these issues in assault cases, see the Comments to WPIC 35.23.02 (Assault—Third Degree—Law Enforcement Officer—Elements) and WPIC 17.02.01 (Lawful Force—Resisting Detention).

Practitioners should note that the two analyses also differ as to the defendant's use of force. For an assault charge, the prosecutor must show that the defendant used force in resisting the arrest, but no such showing is required for the offense of resisting arrest. Compare RCW 9A.36.031 with RCW 9A.76.040.

Resisting arrest is not a lesser included offense of third degree assault because intent to resist arrest is not a necessary element of third degree assault of a police officer and resisting arrest does not require conduct constituting an assault. State v. Cuellar, 164 Wn.App. 701, 262 P.3d 1251 (2011).

[Current as of September 2019.]

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