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CHARGING RESISTING ARREST VS. A&B PO HELPS SOME INJURY ON DUTY CLAIMS TO SUCCEED

When a police officer is injured on duty during an arrest, there may be valuable insurance money available which the police officer is unaware of. This insurance may cover the person with whom the altercation takes place, provided the person did not specifically intend to cause the police officer harm. Such altercations often take place when making an arrest with someone who is combative. For example, persons arrested for causing assault and battery on another, those arrested for driving under the influence, those pursued and arrested on default warrants and those arrested on charges of disorderly conduct or disturbing the peace, often injure the police officer in an attempt to get away. During these arrests, an officer is sometimes injured during his/her attempt to catch or restrain the suspect.

The injured officer's injury claim succeeds more easily when the insurance company involved has no grounds for denying coverage. Typically, the insurance company will attempt to deny coverage on the grounds that the insured person intended to cause harm to the police officer by his actions, and it is common for insurance policies to have such language written into their policies. If the insured person's intent is to strike and cause harm to the police officer, then clearly there has been an assault and battery on a police officer (commonly referred to as A&B PO), which is charged under Massachusetts General Laws Chapter 265, Section 13D. However, if the insured person's intent was clearly to get away or simply resist arrest, then there may be no intent to harm the officer. In such cases, the injured officer might charge the insured person with resisting arrest pursuant to Massachusetts General Laws Chapter 268, Section 32B for Resisting Arrest.

A person commits the crime of resisting arrest if he knowingly prevents or attempts to prevent a police officer, acting under color of his official authority, from effecting an arrest. Here, the intent required for conviction is not an intent to harm, but an intent to prevent the officer from making an arrest. It has been my experience that many officers overlook the relatively new charge of resisting arrest. The statute which was passed by the Massachusetts legislature in 1995, provides in part as follows:

(a) A person commits the crime of resisting arrest if he knowingly prevents or attempts to prevent a police officer, acting under color of his official authority, from effecting an arrest of the actor or another, by:

(1) Using or threatening to use physical force or violence against the police officer or another; or

(2) Using any other means which creates a substantial risk of causing bodily injury to such police officer or another.

If the insured person admits to or is convicted of A&B PO, then the insurance company can be expected to deny coverage. When there is a charge of A&B PO, the insurance company can be expected to wait and hope for a conviction, guilty plea or admission to sufficient facts so that the insured will have been convicted of, plead to or admitted to a key element of the crime: the intent to strike a police officer. The insurance company would then be expected to argue this plea or admission activates the policy exclusion. Without the exclusion, the insurance company fears it would provide financial backing to anyone looking to pick a fight. With the exclusion, the insurance company hopes to only insure for reckless or negligent conduct which results in harm to another.

The absence of intent to specifically strike and cause the officer harm may be the key to a successful insurance claim. In Quincy Mutual Fire, the seminal case in this area, the court was presented with an insurance claim which arose when a sixteen year old boy threw a piece of blacktop at a moving car, causing severe injuries to both the driver and passenger. Quincy Mutual fire Insurance Company v. Brooke Abernathy, 393 Mass. 81, 82 (1984). The insurance company denied coverage to the driver and passenger, citing the policy's exclusion for "bodily injury, which is either expected or intended from the standpoint of the insured." The court, however, held that an intentional act within the meaning of the policy requires the intention to cause the specific results of the act. Specifically, the court reasoned that an act may be characterized as intentional, only if the responsible act was done with the specific intention of causing the resulting harm or with substantial certainty that such harm would result. Id. at 84. Finding that these conditions did not pertain in the case of a boy throwing blacktop at the car, the court held that the claimant was entitled to benefits under the policy. Id. at 88.

I have successfully argued on a number of occasions the intent to resist arrest or flee does not equal an intent to cause harm to the police officer. When the insured person intends to get away from the police officer, the injury to the officer is often incidental and not the primary motive of the insured person's conduct. Of course, if the insured person in attempting to get away winds up, reaches back and strikes the police officer in the face, then certainly the intent of the act is to cause harm to the police officer (even though it is in furtherance of the greater objective of getting away). However if the insured person merely is difficult to handcuff, or pulls away from the officer or pushes him away, causing the officer to fall down and injure a knee, my position is there is no intent to cause harm to the officer. Likewise if the insured person causes the police officer to chase him resulting in injury to the officer during the chase when he stumbles or falls, again I would claim there is no intent to cause harm to the officer.

An officer should consider the intent of the person who caused his injury. If the person was merely out of control or trying to get away then there may not be a specific intent to strike the police officer. In such cases a charge of resisting arrest instead of A&B PO might be more appropriate in the circumstances. The added benefit of this charge is that it may deny the insurance company the opportunity to employ the exclusion from coverage for intentional conduct specifically meant to cause harm. When the intentional act exclusion is used by the insurance company, all is not lost. There are strategies around it. Hopefully, the charge of resisting arrest will dissuade insurance companies which might otherwise have invoked the exclusion, making it easier for us to obtain compensation for the officer's injuries.

An injured officer should always consider seeking a free consultation to determine his or her rights, benefits, and the probability of making a successful claim. I am always available by telephone, email or a personal meeting. Once I evaluate the case and the officer's chances of success, the decision whether to go forward rests with the officer. The decision when to return to work rests, as it should, with the officer and his or her doctor.

As with all claims involving an officer's injury on duty, there are no guarantees. Many police injury cases involve sophisticated legal issues, problems of proof, technical insurance policy coverage disputes, and issues that arise under Massachusetts General Laws c. 41, §100 and §111F.