“… whoever knowingly … obstructs an officer while such officer is doing any act in an official capacity is guilty of a Class A misdemeanor.”
Certainly, this crime is a Class H felony if the resisting causes substantial bodily harm or soft tissue injury to the officer. Secondly, this crime is a Class G felony if the officer suffers great bodily harm.
What are the elements of the crime?
Like all criminal offenses, this one has elements (or parts) that a prosecutor must prove beyond a reasonable doubt. Wisconsin JI-Criminal 1765 explains resisting an officer:
The defendant resisted an officer; and
The officer was doing an act in an official capacity; and
The officer was acting with lawful authority; and
The defendant knew that the officer was an officer acting in his official capacity and with lawful authority and that the defendant knew his conduct would resist the officer.
“To resist an officer” means to oppose the officer by force or threat of force. The resistance must be directed to the officer personally.
If you’re charged with a violation of 946.41(2r) – Substantial bodily harm or soft tissue injury caused to the officer:
We add a question to the elements provided in Wisconsin JI-Criminal 1765:
Did the defendant cause substantial bodily harm, or a soft tissue injury, to an officer?
Cause means that the defendant’s act was a substantial factor in producing the substantial bodily harm or soft tissue damage. Substantial bodily harm means bodily injury that causes a laceration that requires stitches, staples, or a tissue adhesive, any fracture of a bond, a broken nose, a burn, a petechia, a temporary loss of consciousness, sight, or hearing, a concussion, or loss/fracture of a tooth. Soft tissue injury means an injury that requires medical attention to a tissue that connects, supports, or surrounds other structures and organs of the body. It certainly includes tendons, ligaments, fascia, skin, fibrous tissues, fat, synovial membranes, muscles, nerves, and blood vessels.
If you’re charged with a violation of 946.41(2t) – Great bodily harm caused to the officer:
We add a second, different question to the elements Wisconsin JI-Criminal 1765 provides:
Did the defendant cause great bodily harm to an officer?
Great bodily harm is injury which creates a substantial risk of death or which causes serious permanent disfigurement. Or, it causes a permanent or protracted loss or impairment of the function of an bodily member or organ or other serious bodily injury.
What if the arrest is unlawful?
Fighting with the cops won’t invalidate an unlawful arrest. You certainly won’t get away. And importantly, you’re surely going to get beat up. So, what do you do in the case of an unlawful arrest?
In State v. Hobson, 208 Wis.2d 550, 577 N.W.2d 825 (1998), the Wisconsin Supreme Court recognized the common law privilege to resist an unlawful arrest. The court went on to annul common law. Hobson, involved a defendant charged with battery to a law enforcement officer. The defendant attempted to claim an affirmative defense focusing on the common law principle of resisting an unlawful defense. The court point out the third element: that the officer was acting “with lawful authority.” Certainly, if the officer wasn’t acting with lawful authority, an element of the crime fails.
To help answer this question: What is “with lawful authority”?
Significantly, “lawful authority” goes to whether the officer’s actions “are conducted in accordance with the law.” State v. Barrett, 96 Wis.2d 174, 180-81, 291 N.W.2d 498 (1980). Surprisingly, the courts have only provided this basic definition.
Thus, in theory, the defendant hasn’t committed “resisting an officer” if the officer isn’t acting in accordance with the law. This is certainly a very legal question. And our advice is always the same: don’t fight the cops. Then hire a top criminal defense attorney. And certainly let us fight them in court.
Contact Van Severen Law Office for the premium obstructing an officer defense
The criminal defense attorneys at Van Severen Law Office certainly specialize in one thing: defending individuals accused of committing crimes. Correspondingly, we don’t work on contracts cases, family law cases, or any other non-criminal defense cases. Consequently that allows us to better defend you – the individual accused of a criminal violation.
Lastly, give us a call. We answer our phones 24/7 at (414) 270-0202.