28-904. Resisting arrest; penalty; affirmative defense.
472 words·~2 min read·
/ne/chapter-28/28-904A research copy — for the controlling text, always check the official state or federal source. Not legal advice.
(1)A person commits the offense of resisting arrest if, while intentionally preventing or attempting to prevent a peace officer, acting under color of his or her official authority, from effecting an arrest of the actor or another, he or she:
(a)Uses or threatens to use physical force or violence against the peace officer or another; or
(b)Uses any other means which creates a substantial risk of causing physical injury to the peace officer or another; or
(c)Employs means requiring substantial force to overcome resistance to effecting the arrest.
(2)It is an affirmative defense to prosecution under this section if the peace officer involved was out of uniform and did not identify himself or herself as a peace officer by showing his or her credentials to the person whose arrest is attempted.
(3)Resisting arrest is
(a)a Class I misdemeanor for the first such offense and
(b)a Class IIIA felony for any second or subsequent such offense.
(4)Resisting arrest through the use of a deadly or dangerous weapon is a Class IIIA felony.
In prosecutions for assaulting a peace officer, obstructing a peace officer, or resisting arrest, a trial court must instruct the jury on the issue of self-defense when there is any evidence adduced which raises a legally cognizable claim that the peace officer used unreasonable force in making the arrest. State v. Yeutter, 252 Neb. 857, 566 N.W.2d 387 (1997).
This is a serious offense for which a jury trial is constitutionally required unless knowingly and intelligently waived by the defendant. State v. Bishop, 224 Neb. 522, 399 N.W.2d 271 (1987).
It is an affirmative defense to prosecution under this section if the peace officer involved was out of uniform and did not identify himself as a peace officer by showing his credentials to the person whose arrest is attempted. State v. Daniels, 220 Neb. 480, 370 N.W.2d 179 (1985).
Where there was evidence that the arrester communicated his intention to arrest the arrestee, the arrestee understood the intention, and the arrester had the apparent ability to control the arrestee, a jury instruction on resisting arrest was not necessary. State v. White, 209 Neb. 218, 306 N.W.2d 906 (1981).
Because neither "substantial" nor "substantial force" were defined in either this section or section 28-109, and definitions of such were also absent in the relevant Nebraska case law, the district court's jury instruction, which gave a partial and incomplete dictionary definition, misstated the issue and had a tendency to confuse the jury. The jury reached a guilty verdict 10 minutes after receiving the erroneous supplemental instruction, and thus, the verdict rendered was not surely unattributable to the error and not harmless; the conviction was reversed and the cause remanded for a new trial. State v. Gaudreault, 30 Neb. App. 501, 969 N.W.2d 695 (2022).