ARTICLES
Punishing Involuntary Resistance
OMAVI SHUKUR*
Prosecutors should have to prove voluntariness in cases arising out of
resistance to arrest. During an arrest, police violence—such as the use
of pepper spray or police canines—may induce involuntary resistance.
Such resistance may give rise to criminal charges. The actus reus element
of criminal responsibility, however, provides that a person may only be
held criminally responsible for voluntary conduct.
And yet, prosecutors are often not forced to prove voluntariness in
resisting cases. Instead, as the case studies in this Article show, trial
courts reject requests for voluntariness jury instructions, shift the burden
to resisters to prove involuntariness, and—in some cases—disregard the
voluntariness requirement altogether. This subversion matters because it
wrongfully enables the criminalization of involuntary resisters.
Psychological and other scientific literature suggest that stressful
events—like arrests—may evoke great fear. Such fear may be inborn,
conditioned by violent and racially subordinating policing, or both. The
more imminent a fearsome threat, the more likely one is to lose control
over their response thereto. This loss of control significantly impairs
one’s ability to refrain from resisting. Thus, during some arrests, the
state may induce the resistance it punishes.
This Article contributes to the voluntariness-requirement scholarship
by offering a normative theory for how the requirement should be applied
in resisting cases. This Article calls for making voluntariness an explicit,
essential element of resisting offenses. In doing so, this Article reveals a
means by which fact finders may disrupt cycles of harm perpetuated by
police violence and criminal punishment.
* Assistant Professor, University of Maryland Francis King Carey School of Law. © 2024, Omavi
Shukur. This Article has benefited from presentations made at the AALS Workshop for Research on the
Criminal Legal System, Columbia Law School Academic Fellows Workshop, Culp Emerging Scholars
Workshop, Annual Meeting of the Law and Society Association, and CrimFest. I would like to thank the
participants of these workshops for their assistance and others who gave comments, including Ishmail J.
Abdus-Saboor, Ashraf Ahmed, Amna Akbar, Sania Awar, Paul Butler, Devon Carbado, Guy-Uriel
Charles, Emily Chertoff, Frank Rudy Cooper, Jeffrey A. Fagan, Jose
´ Argueta Funes, Jonathan Glater,
Bernard Harcourt, James Hicks, Olatunde C. Johnson, Monika Leszczynska, Bianca Jones Marlin,
Jonathan Masur, Tracey Meares, Jamelia Morgan, Erin Murphy, Alexandra Natapoff, Michael Pinard,
Daniel Richman, Alice Ristroph, Sarah Seo, Jocelyn Simonson, Fred Smith, Susan Sturm, and Kendall
Thomas. I received excellent research assistance from Olivia Martinez. I thank Annie Farrell, Emma
Watson, Cecile Duncan and The Georgetown Law Journal Editors for excellent editorial suggestions.
1
TABLE OF CONTENTS
INTRODUCTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
I. THE VOLUNTARINESS REQUIREMENT . . . . . . . . . . . . . . . . . . . . . . . 11
II. POLICE VIOLENCE AND INVOLUNTARY RESISTANCE . . . . . . . . . . . .
. . . . .
19
A. EMOTIONAL DIMENSION. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
B. BEHAVIORAL ACCOUNT. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
. . .
28
C. PHYSIOLOGICAL ACCOUNT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30
III. SUBVERTING THE VOLUNTARINESS REQUIREMENT IN RESISTING
CASES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32
. . .
. . .
. . .
. . .
33
B. STATE V. RIOJAS. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 37
IV. ELEVATING THE VOLUNTARINESS REQUIREMENT . . . . . . . . . . . 44
CONCLUSION. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 52
[W]hether or not the judge and prisoner share the same philosophy of punish-
ment, they arrive at the particular act of punishment having dominated and hav-
ing been dominated with violence, respectively.
—Robert M. Cover
1
Where there is predation, there is by evolutionary necessity its complement,
predatory defense.
—¨
Arne Ohman and Susan Mineka
2
INTRODUCTION
On a spring night in Oregon, Pariss Lomchanthala, an indigent Pacific Islander
man, was confronted by a white police officer who intended to arrest him for an
outstanding parole violation warrant.
3
See STEPHEN SMITH, SALEM POLICE DEP’T, INCIDENT # SMP12017712 - SUPPLEMENT REPORT 1, 4
(May 13, 2012); SALEM POLICE DEP’T, PERSON PROFILE: PARISS LOMCHANTHALA 1 (Mar. 21, 2023)
(listing Pariss as “Native Hawaiian or Other Pacific Islander”); Salem Police Officer Injured in Crash
with Semi Truck, SALEM-NEWS.COM (Mar. 26, 2009, 3:36 PM), http://www.salem-news.com/articles/
march262009/smith_injury_3-26-09.php [https://perma.cc/N8SR-UQMX] (picture of Salem Police
Officer Steve Smith ).
Pariss refused to obey the officer’s order to
1. Robert M. Cover, Violence and the Word, 95 YALE L.J. 1601, 1609 (1986).
2. Arne O
¨hman & Susan Mineka, Fears, Phobias, and Preparedness: Toward an Evolved Module of
Fear and Fear Learning, 108 PSYCH. REV. 483, 486 (2001).
3.
“ ”
2 THE GEORGETOWN LAW JOURNAL [Vol. 113:1
lie prostrate on the ground.
4
Pariss was unarmed,
5
had not threatened or assaulted
the officer, and had not attempted to run away.
6
Still, the officer ordered a police canine to attack Pariss.
7
As the canine
attacked, Pariss fought against both the officer and the canine.
8
Soon, more offi-
cers arrived on the scene and captured Pariss, who was later charged with resist-
ing arrest and assaulting a public safety officer.
9
See GAMBLE, supra note 6, at 1; Case Information, 12C43321: State of Oregon vs. Pariss PV
Lomchanthala, OR. JUD. DEP’T, https://webportal.courts.oregon.gov/portal/Home/WorkspaceMode?p=
0#ChargeInformation [https://perma.cc/L8FY-X7YL] (last visited Aug. 30, 2024).
Before his trial, Pariss requested the court to inform the jury that Oregon law
only permits criminal liability for performing a voluntary act or omission.
10
He
intended to argue that his actions against the officer were involuntary under the
circumstances.
11
But the court denied his request for a voluntariness instruction,
finding that such an instruction would be confusing and unnecessary.
12
The jury
later found Pariss guilty of the felony of assaulting a public safety officer.
13
Pariss’s story illustrates how credible contestations of voluntariness in resisting
cases are disregarded. People who resist arrest—and survive—may be prosecuted
for various resisting crimes, such as fleeing arrest, resisting arrest, and assaulting
an officer. Resisting offenses generally proscribe fleeing or physically struggling
against an arresting officer, provided the officer is not engaged in an unlawfully
excessive use of force and the resister knows they are fleeing or resisting a law
enforcement officer.
14
Some resisters, like Pariss, argue at trial that the voluntari-
ness requirement for criminal responsibility entitles them to an acquittal.
15
Every first-year law student learns that the voluntariness requirement is a foun-
dational component of criminal responsibility.
16
It provides that a person may
4. SMITH, supra note 3, at 2.
5. MICHAEL SOMMER, SALEM POLICE DEP’T, INCIDENT # SMP12017712 - ARREST REPORT 1 (May
12, 2012).
6. See State v. Lomchanthala, 341 P.3d 128, 129 (Or. Ct. App. 2014). The officer claimed Pariss
walked away, see SMITH, supra note 3, at 2, while Pariss stated he did not walk away, but instead stood
still, STUART GAMBLE, SALEM POLICE DEP’T, INCIDENT # SMP12017712 - SUPPLEMENT REPORT 2 (May
14, 2012).
7. Lomchanthala, 341 P.3d at 129.
8. See id.
9.
10. Lomchanthala, 341 P.3d at 130.
11. Id.
12. Id.
13. Id.
14. “All fifty states and the District of Columbia criminalize [fleeing from and resisting] an arrest
supported by probable cause or an arrest warrant, provided the [fleer or] resister .. . knew .. . that they
were resisting a law enforcement officer.” Omavi Shukur, The Criminalization of Black Resistance to
Capture and Policing, 103 B.U. L. REV. 1, 7 & n.19 (2023) (listing statutes and ordinances criminalizing
resisting arrest). In most states, a person may even be convicted for resisting an unlawful arrest. Id. at
36–37 & nn. 250–53 (listing the thirty-three state statutes and judicial decisions that criminalize
resisting unlawful arrest).
(Wash. Ct. App. Oct. 21, 2014).
16. See, e.g., CYNTHIA LEE & ANGELA P. HARRIS, CRIMINAL LAW: CASES AND MATERIALS 155 (3d
ed. 2014) (“In general, a person cannot be convicted of a crime unless he or she commits a voluntary
2024] PUNISHING INVOLUNTARY RESISTANCE 3
