1976)(acquittal of assault on police officer not inconsistent
with conviction for resisting arrest).
Also, resisting one’s own arrest is properly prosecuted
under this statute. State v. Garrison, 230 N.J. Super. 609,
614 (App. Div. 1989). Resisting arrest is a single offense
notwithstanding the fact that multiple police officers may
be involved in the attempted arrest. State v. Parsons, 270
N.J. Super. 213 (App. Div. 1994). The offenses of assault
on a police officer and resisting arrest do not merge. State
v. Battle, 256 N.J. Super. 268, 283 (App. Div.), certif.
denied, 130 N.J. 393 (1992); State v. Davis, 281 N.J. Super.
410, 416 (App. Div. 1995), certif. denied, 145 N.J. 376
(1996).
A. Lawful arrests
The defendant must know that he is being arrested to
be charged with resisting arrest, but if the arrest is legal, the
police do not need to announce it. The facts must simply
show that the defendant knew he was being arrested and he
nevertheless resisted. State v. Branch, 301 N.J. Super. 307,
321 (App. Div. 1997), rev’d in part on other grounds 155
N.J. 317 (1998).
B. Unlawful arrests
A person may be convicted under subsection a for
resisting an unlawful arrest provided that the officer was
acting under color of official authority and the officer
announces the intention to arrest the defendant before he
resists. State v. Kane, 303 N.J. Super. 167, 182 (App. Div.
1997). In State v. Kane, the court found that the defendant
resisted several officers who were carrying him out of a
meeting, but since there was no authority for an arrest and
the arrest was not announced, the conviction was reversed.
See also, State v. Battle, 256 N.J. Super. 268, 274 (App. Div.
1992), certif. denied, 130 N.J. 393 (1992).
II. DEFENSES
It is not a defense to a prosecution for resisting arrest
that a law enforcement officer was acting unlawfully in
making the arrest, provided he was acting under color of his
official authority and provided the law enforcement officer
announces his intention to arrest prior to the resistance.
N.J.S.A. 2C:29-2a; State v. Seymour, 289 N.J. Super. 80, 85
(App. Div. 1996).
A person is not justified in using force in self-
protection to resist an arrest which he knows is being made
by a peace officer in the performance of his duties, although
the arrest is unlawful, unless the peace officer employs
unlawful force to effect such an arrest. N.J.S.A. 2C:3-
4b(1)(a). Similarly, a person may not use force to oppose
an unlawful arrest as long as unlawful force is not being
employed by the arresting officer. See N.J.S.A. 2C:3-
4b(1)(a) and Comment thereon, and State v. Casimono,
250 N.J. Super. 173, 182-185 (App. Div. 1991), certif.
denied, 127 N.J. 558 (1992). This provision codifies the
common law proscription that a private citizen may not use
force to resist arrest by one he knows or has good reason to
believe is an authorized police officer engaged in the
performance of his duties. State v. Mulvihill, 57 N.J. 151
(1970); State v. Koonce, 89 N.J. Super. 169 (App. Div.
1965); State v. Lawrence, 142 N.J. Super. 208 (App. Div.
1976).A public officer acting in the performance of his duties
or a person lawfully assisting him therein or a person
making or assisting in a lawful arrest is justified in using
force for self-protection even against an occupier or
possessor of property using force under a claim of right to
protect the property. N.J.S.A. 2C:3-4b(2)(b)(ii).While a person is ordinarily obliged to retreat before
utilizing deadly force in self defense, a public officer is not
obliged to desist from efforts to perform his duty, effect an
arrest or prevent an escape because of resistance or
threatened resistance by or on behalf of the person against
whom such action is directed. N.J.S.A. 2C:3-4(2)(b)(ii).However, deadly force may not be employed to
prevent escape of an unarmed fleeing felon unless the
suspect committed a crime of violence or presents a danger
to the officer or other persons. Tennessee v. Garner, 471
U.S. 1, 105 S.Ct. 1694, 85 L.Ed. 2d 1 (1985).