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Missouri Supreme Court Clarifies No Resisting Arrest Charge Once Arrest is Completed

by Dale Chappell

A defendant trying to break free of an officer’s grip while already under arrest and in handcuffs was not “resisting arrest” because the defendant was not trying to prevent his arrest, the Supreme Court of Missouri held.

Six officers surrounded Daniel Ajak and put him under arrest by placing him in handcuffs and making him sit in a chair in his kitchen after a domestic disturbance at his house. As Ajak continued to verbally protest that he was the victim, he was moved to a police car to be taken to jail. On the way out to the car, he tried to break free of the officer’s grip while still in handcuffs and spit on the officer. In addition to the domestic assault charges, police added a resisting arrest charge. A jury found Ajak guilty of only the resisting arrest charge, and he was sentenced to 280 days in jail. He appealed, and the Missouri Supreme Court granted transfer after the court of appeals affirmed.

The question before the Supreme Court was whether Ajak actually resisted arrest when he tried to break free, after having been put in handcuffs and forced by the officers to sit in a chair. Section 575.150 of the Revised Statutes of Missouri provides that resisting arrest occurs when a person resists “for the purpose of preventing the officer from effecting the arrest.” Section 544.180 defines an arrest as “an actual restraint of the person of the defendant, or by his submission to the custody of the officer.”

All agreed that Ajak was told he was under arrest and placed in handcuffs in his kitchen. Ajak argued that he was already under arrest in the kitchen before he tried to break free on the way to the car. The State argued that Ajak was not actually “arrested” until he was placed in the police car. The Court resolved this issue by stating the obvious: “indeed, arrests were effected long before patrol cars existed.”

The critical element in determining whether the arrest had been effected is whether the officer had control over Ajak’s movements. While each case requires a fact-specific inquiry to determine when an arrest is complete, a defendant who is not under an officer’s restraint or control has not been arrested, the Court said.

Here, Ajak was restrained by officers in his kitchen and was under their control. The arrest had been “effected” to satisfy Missouri’s arrest statute, the Court determined. An arrest must be “in progress” when the resisting occurs, the Court said, in order to be resisting arrest. Once a defendant has been arrested, he is then “in custody.” If Ajak had committed any crime, the Court said, it would have been attempt to escape from custody, not resisting arrest.

The Court therefore held that Ajak did not resist arrest since he was already in custody when he tried to break free. Accordingly, the Court reversed the judgment of the court of appeals. See: State v. Ajak, 2018 Mo. LEXIS 98 (2018). 


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Related legal case

State v. Ajak



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