NYPD: Resistance Is Felonious

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New York Police Department commissioner Bill Bratton is asking state lawmakers to pass a law that would make resisting arrest a felony, which in turn would allow city policemen to lock up almost anybody who looks at them cross-eyed. A felony conviction, in addition to carrying the potential for significant prison time and loss of civil rights, would allow any crooked cop to act under cover of law against virtually anybody.

The resisting arrest law, as it's written, is designed to allow the state to further punish suspects who endanger the safety of police officers. But it's easily abused. Let's say you are photographing a traffic stop and the cop tells you to put the camera away. You don't do that. Even though you are completely within your constitutional rights to film or take pictures, the police want to now arrest you for "resisting arrest," and you have to mount a felony defense.

Boing Boing reported recently on the identities of several recent would-be felons. They included:

• Chaumtoli Huq, a former general counsel to New York Public Advocate Letitia James, who was charged with resisting arrest for "blocking the sidewalk" while waiting for her family to finish using the restroom inside a Times Square restaurant. Huq has filed a civil rights suit against the Police Department.


• Denise Stewart, a Brooklyn grandmother, who was charged with resisting arrest after several policemen dragged her naked out of her own apartment and into her building's lobby. (They had the wrong apartment.) Stewart is also suing.


• Jahmil El-Cuffee, who was charged with resisting arrest after a cop beat him senseless and stomped on his head for rolling a joint, all the while shouting, "Stop resisting!" The cop has been indicted.

When I was serving time after blowing the whistle on the CIA's illegal torture program, crooked prison guards used similarly lax rules by charging prisoners with "insolence." Disobey a direct order? Insolence. Talk back to a guard? Insolence. It leads to a stint in solitary and loss of good-behavior time and commissary, visiting, phone, and email privileges. It's the prison version of "resisting arrest."

Commissioner Bratton has the same idea. The courts are just supposed to take the cops' word for it. If the police don't like your attitude, if you object to something you see them do, they will be able to charge you with a felony. And whom will the judge believe -- a uniformed cop with his shiny badge -- or you?

This is part of a bigger problem, one that is not confined to police brutality and overreach. It is one of over-criminalization, over-legislation, and over-regulation. Harvard Law School professor Harvey Silverglate, in his book Three Felonies a Day: How the Feds Target the Innocent, argues that we are so over-criminalized that the average American, on the average day, going about his or her normal business, commits three felonies. Every day. The bottom line is that if the cops really want to get you, they can get you.

Meanwhile, in just the five years from 2008 until 2013, according to the Congressional Research Service, Congress created 439 new criminal offenses. That makes for a grand total of 4,889 federal crimes. And that's in addition to the growing number of state and local crimes for which Americans can be prosecuted.

To make matters worse, many of these new federal laws lack any mens rea, or "guilty mind," requirement. That means you can be prosecuted even without having any criminal intent. Didn't mean to break the law? Tough luck.

Americans can't rely on friendly judges or on the occasional politician who realizes that our civil liberties are going the way of the dodo bird. It's up to us to ride our elected officials to force them to act. And if they don't, we should take a lead from Chaumtoli Huq, Denise Stewart, and Jahmil El-Cuffee. We should sue.

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