The crime of resisting law enforcement isn’t quite as straightforward as it seems. What does it mean to resist? If you refuse to follow an officer’s instructions, does that qualify as resistance? Does walking away? What if you do nothing at all?

Under Indiana law, resisting law enforcement occurs when a person knowingly or intentionally forcibly resists, obstructs, or interferes with a law enforcement officer or a person assisting the officer while the officer is lawfully engaged in the execution of the officer’s duties.

In 1993, the Indiana Supreme Court interpreted this statute to mean the word forcibly modifies resists, obstructs, and interferes, holding that “any action to resist must be done with force in order to violate this statute.” This means if you’re not resisting law enforcement with strong, powerful, or violent means, you’re not resisting at all. Again, though, this isn’t as straightforward as it seems.

If an officer tells you to move, and you don’t, that’s not resisting. A lack of movement can never constitute resistance. However, if you try to prevent an officer from physically moving you, that probably is resistance. In this context, “force” can be anything from bracing your arms against a doorframe to stiffening your body as police attempt to carry you.

You can even resist without making physical contact. In 2013, the Indiana Supreme Court upheld a resisting law enforcement conviction where the defendant had been ordered to get down on the ground, but instead continued to advance towards the officer with his fists clenched. Approaching in a threatening manner—even without making contact—is enough for courts to find violent means of resistance.

Inaction, however, cannot be construed as resistance. Simply refusing to cooperate with the police might make your life more difficult, but it cannot properly result in a charge of resisting law enforcement. Refusing to present your arms for handcuffing, for example, is not an instance of resisting—provided you aren’t pulling your arms away from the officers, or otherwise exerting force.

Likewise, you can’t be convicted of resisting for refusing an officer’s instructions to remove your hands from your pockets. If your resistance is completely passive, it’s not resistance in a legal sense.

The takeaway here is that for purposes of resisting law enforcement, resistance can’t be passive. Refusing to answer questions is not resistance. Sitting motionless when you’re asked to stand is not resistance. Keeping your hands in your pockets is not resistance. As soon as you flex a muscle in opposition to an officer, though—that is resistance. It’s at least a Class A misdemeanor, and it can easily rise a Level 6 felony. The more harm you cause, the more serious the charge can get.

The attorneys at the Marc Lopez Law Firm know that people sometimes receive criminal charges they don’t deserve. If you or someone you know has had an unfortunate run-in with police, give us a call at 317-632-3642, and remember—always plead the 5th!