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Resisting arrest is one thing, assaulting an officer in the process is yet another. Assaulting a police dog? That will certainly make the headlines. When police were called to the scene of a disturbance and found a San Jose man vandalizing cars and brandishing a weapon, they employed the skills of their German Shepherd. However, they didn’t expect the man to bite the dog.
An unusual case of resisting arrest.
In Santa Clara County, California near San Jose, Sheriff’s deputies responded to a call and found Frank Garcia, 34, armed with what appeared to be a knife. He had slashed a tire on one vehicle and smashed in several car windows. Officers attempted to talk him down so they could take him in, but he stabbed himself three times.
As his self-inflicted injuries were not life threatening, the deputies made the decision to release their K-9, “Ski” in an attempt to subdue the man. However, Garcia allegedly, punched, choked and bit the dog until the deputies were able to tackle him to the ground. Ski was not seriously injured, and is expected to make a full recovery and return to duty soon. Garcia was arrested on a number of charges, including resisting arrest, being under the influence of a controlled substance, and injuring a police dog.
Some of the incident was caught on video by a nearby cell phone user, and of course the video has gone viral. Garcia’s cousin, Maxine Gonzales says that she was very thankful the deputies did not have the need to shoot at him. That is obviously one good thing that came out of the deputies’ decision to use the K-9. However, the penalties for resisting arrest can still be pretty steep. In California, resisting arrest is a misdemeanor and carries with it a sentence of up to one (1) year and/or a maximum fine of one thousand dollar ($1,000) fine. The same offense in Massachusetts could lead to a longer period of confinement.
Resisting Arrest Charges in Massachusetts
Although the charge of resisting arrest in Massachusetts is only a misdemeanor, it still carries with it a pretty significant penalty. Massachusetts General Law Chapter 268 section 32B states as follows:
[w]hoever violates this section shall be punished by imprisonment in a jail or house of correction for not more than two and one-half years or a fine of not more than five hundred dollars, or both.
The elements of a resisting arrest charge are (1) that you prevented or attempted to prevent a police officer from making an arrest; (2) the officer was acting under color of his official authority at the time of the arrest; (3) proof that you actually resisted; and (4) you knowingly committed these acts. Resisting usually means that you used, or threatened to use, physical force or violence against an officer or someone else. It can also include using some other means to create a substantial risk of causing bodily injury to the officer or another person. It must also be shown that the police officer was either in uniform at the time he attempted to arrest you, or if not, he identified himself by showing his badge or other credentials.
Defenses to resisting arrest may apply to your situation.
In Massachusetts, there are defenses applicable for resisting arrest charges, such as when you are resisting a pat frisk, fleeing a police officer who orders you to stop for the purposes of a threshold inquiry only, or not knowing the person you were resisting was a police officer. You also have the right to use reasonable force to resist an arrest if the officer uses unreasonable or excessive force. If you have been charged with resisting arrest it is important to retain a Massachusetts criminal defense attorney who knows the system and can help defend your rights.
The United States Supreme Court has just determined: “you must speak if you want to remain silent.” In a 5-4 decision in Salinas v. Texas, Justice Samuel Alito wrote that a suspect must verbally invoke his Fifth Amendment right to remain silent.
What Does The 5th Amendment Say?
The best-known clause in the Fifth Amendment of the Bill of Rights provides: “No person … shall be compelled in a criminal case to be a witness against himself.” This amendment protects criminal suspects from forced self-incrimination. “Pleading the fifth” should not be considered a sign of guilt and prosecutors generally may not enter evidence of a suspect’s remaining silent as an indication of guilt.
The 5th amendment comes into play in many stages of a criminal investigation and is designed to protect suspects from abusive police interrogation techniques.
The Fifth Amendment Must Be Expressly Invoked
How the “right to remain silent” can be invoked was a critical issue in Salinas v. Texas. In this Texas murder case, Genovevo Salinas, was detained and informally interviewed by police. However, because he wasn’t under arrest, detectives didn’t read Salinas his Miranda Rights. Miranda Rights notify suspects in custody of their 5th amendment right to remain silent and 6th amendment right to counsel.
After an hour of questioning, police asked Salinas on whether the shells recovered from the murder scene would have matched a shotgun they found at his house. Although he had answered all of the police’s other questions, Salinas became silent after this one. He looked down, shuffled his feet and refused to answer. At trial, the prosecutor entered evidence that this was the only question Salinas didn’t answer and told the jury that his “silence should be considered evidence of his guilt.” Following the trial, the jury convicted Salinas of double murder and he was sentenced to 20 years in prison.
On appeal, Salinas’ attorney argued that the testimony concerning Salinas’ silence violated his 5th amendment rights. The Texas Court of Appeals disagreed, ruling that Salinas would have had to expressly invoke his 5th amendment rights to keep this testimony out. Remaining silent wasn’t enough.
In a decision issued earlier, this month the Supreme Court agreed with the ruling. Writing for the majority, Justice Samuel Alito noted: “The Fifth Amendment guarantees that no one may be compelled in any criminal case to be a witness against himself; it does not establish an unqualified right to remain silent.”
However, the decision wasn’t unanimous. Justice Stephen Breyer was joined in his dissent by three other justices, and noted:
The Fifth Amendment prohibits prosecutors from commenting on an individual’s silence …I would hold that Salinas need not have expressly invoked the Fifth Amendment … the context was that of a criminal investigation… And it was obvious that the new question sought to ferret out whether Salinas was guilty of murder… These circumstances give rise to a reasonable inference that Salinas’ silence derived from an exercise of his Fifth Amendment rights.
Whether this case will be challenged in the future remains to be seen. But for now, criminal defendants wishing to remain silent must first speak up.
When one gets arrested, for the first time, they really have no idea what is in store for them. The purpose of this post is to outline the general steps that happen once one has been arrested for a crime.Lets say that you are the suspect for the purposes of this scenario and that you have been alleged to have committed a crime. (picture of gavel taken by KeithBurtis)
First off, one has to be arrested. The arrest is only valid when a police officer has probable cause to believe that you have committed the crime. After being arrested you are taken down to the police station to be booked. Booking is the process where they collect information on you and put it into their system. This information includes your fingerprints, a photograph, age, height, etc. Once you are booked then the D.A., or more likely the assistant D.A., decides whether there is enough evidence to file the charges of the crime against you that you allegedly committed. For example, burglary consists of the unlawful, forceful, entry into ones house to take property. If you were found in someones house when the police showed up, the D.A.’s office would consider that strong evidence to be used against you to fulfill that element of the crime.
After the complaint has been filed, you will go through what is normally called a “first appearance“. This is where you are brought before a judge or some other court official where you are informed of the charges against you and that you have a right to counsel. (You should already have counsel by now. It is best to receive it as soon as you arrive at the station. Say nothing until your lawyer has arrived.) Next we have “preliminary hearings” brought before a judge where there are sometimes live witnesses used in order for the judge to determine if there is enough evidence to establish probable cause that you committed the crime. After this the prosecutor prepares “information”, reciting the charges. (Called indictment in some states that use a grand jury system).
Next you will be brought before the court and arraigned. This is where you will be asked to plead innocent or guilty. Then your attorney will begin the pre-trial motions, which may consist of various issues. These issues are numerous and can be somewhat complicated/dull to describe. Needless to say it is more for your lawyer to worry about, and not you. Finally comes the actual trial, if it makes it this far. If your charge is a felony, burglary is, then you are given the right to have a trial by jury. When all the theatrics of the trial are done, the sentencing comes. This is where you are determined to be either innocent or guilty by the judge or the jury after hearing all the merits of the case. Depending on the ruling, you are entitled to an appeal. Appeals can be fully talked about more in another post. In a nut shell, appeals involve errors in the trial, such as allowing evidence obtained against you unconstitutionally in the trial, and you requesting that evidence should never have been considered. Appeals are another issue that is more for your lawyer to worry about and not you.
That is the short, broad, and hopefully straightforward outline of a criminal proceeding from beginning to end. I hope it has given you an simple insight into what can appear to be a scary and complicated process from the outside.