Resisting Arrest vs. Assaulting a Police Officer in South Carolina: Critical Legal Distinctions

Interactions with law enforcement are inherently tense, and a routine traffic stop or questioning can escalate into a physical confrontation in seconds. When the police decide to place you under arrest, human instinct often causes a person to tense up or pull away. In South Carolina, how you react in those crucial moments dictates whether you will face a minor misdemeanor charge or a life-altering felony.

Understanding the critical legal distinctions between simply resisting an officer's commands and committing an assault against them is essential. Police officers and prosecutors in South Carolina do not take physical altercations lightly. If you are facing these charges, you must understand the statutes being used against you, the narrow defenses available regarding unlawful force, and the steps to protect your freedom.

Resisting Arrest vs. Assault

The core difference between these two charges comes down to your intent and the specific action you took. Did you merely try to prevent the handcuffs from going on, or did you actively attempt to harm the officer? South Carolina law addresses these behaviors under two entirely different sections of the legal code.

Reflexive Flinching vs. Intentional Striking

Under S.C. Code Ann. § 16-9-320, resisting arrest occurs when a person knowingly and willfully opposes or resists a lawful arrest by a law enforcement officer. If you stiffen your arms, lock your elbows, or pull your wrist away when an officer tries to cuff you, you are committing a misdemeanor offense. Even running away on foot constitutes resisting.

However, if you take an affirmative action against the officer-such as throwing a punch, kicking, or wounding them-the charge escalates to a felony under S.C. Code Ann. § 16-9-320(B) for assaulting or beating an officer while resisting arrest, carrying up to 10 years in prison. Furthermore, if you use or threaten to use a deadly weapon while resisting, S.C. Code Ann. § 16-3-625 mandates a strict penalty of 2 to 10 years in state prison.

Spitting on an Officer

A common scenario during highly agitated arrests is a suspect spitting on a police officer. Many people mistakenly believe that because spitting does not cause a physical injury like a bruise or a broken bone, it is not an assault. Under South Carolina law, spitting on a law enforcement officer is considered an offensive and highly insulting physical contact, which easily meets the legal definition of assault and battery.

Defending Against Unlawful Police Force in SC

A frequent question is whether a citizen has the right to physically resist if the police use excessive, unlawful force. While old common law precedents acknowledge a theoretical right to resist an unlawful arrest, modern South Carolina courts view this extremely narrowly. In cases like State v. McGowan, 347 S.C. 618 (SC Supreme Court 2001), the courts emphasize that a person is not entitled to use physical force to resist an arrest simply because they believe they are innocent. If you fight back, you will almost certainly be charged with assault. The proper place to fight an unlawful arrest is in the courtroom, not on the side of the road.

Severe Mandatory Minimums for Injuring Law Enforcement

South Carolina protects its law enforcement officers fiercely. Under S.C. Code Ann. § 16-9-320(B), assaulting, beating, or wounding an officer while resisting arrest is a felony carrying up to 10 years in prison and fines up to $10,000. While S.C. Code Ann. § 16-9-320(B) does not carry an automatic mandatory minimum, prosecutors aggressively pursue maximum prison time. Furthermore, if a suspect resists arrest while armed, S.C. Code Ann. § 16-3-625 imposes a mandatory minimum sentence of 2 to 10 years in state prison with no possibility of suspension below six months for a first offense.

Step-by-Step Guide if Charged

If you are accused of resisting or assaulting an officer, the evidence against you is largely controlled by the police. You must act strategically to defend yourself.

Step 1: Comply and Remain Silent

If the arrest is actively happening, stop resisting immediately. Once in custody, invoke your right to remain silent. Do not try to justify why you pulled away; any admission that you knew they were trying to arrest you and you fought back will be used as a confession.

Step 2: Handle Your Bond Hearing

Because the alleged victim is a police officer, the magistrate judge at your bond hearing (for example, at the Lexington County General Sessions Court, Lexington or the Spartanburg County Magistrate Court, Spartanburg) may set a high bond. Having a lawyer present at this initial hearing is crucial to argue for your release.

Step 3: Obtain Body-Cam and Dash-Cam Footage

Your attorney's first priority will be formally requesting all video and audio evidence of the encounter. Body-cam footage is the single most important piece of evidence in determining whether your actions were truly assaultive or simply reflexive flinching.

Step 4: Request Internal Affairs Reports

If the officer used excessive force, your lawyer may request their disciplinary file from their department or the South Carolina Law Enforcement Division, Columbia. If the officer has a documented history of brutality, this can severely damage their credibility in front of a jury.

Penalties Comparison in South Carolina

Frequently Asked Questions (FAQ)