First, knowingly;

Second, by the use of force/violence;

Third, resisting;

Fourth, a/an peace/executive officer;

Fifth, in the performance of his/her official duties.

The language of section 268 of Title 21 uses only "executive officer" in defining those persons included within its protection. The Commission has used both "peace officer" and "executive officer" to indicate the victims included within the protection of this statute because all appellate cases found concerning the statute have to do with resisting peace officers. Normally, if one resists an executive officer with force and violence, that resistance will be against a peace officer. If the victim is an executive officer other than a peace officer, the alternate, "an executive officer," should be given as the fourth element.

Under the second element, the State, in order to sustain this charge against a defendant, must show some act of aggression by the defendant from which the court and jury can reasonably infer forcible resistance to, or interference with, an executive officer. Reams v. State, 551 P.2d 1168 (Okl. Cr. 1976); Cummins v. State, 6 Okl. Cr. 180, 117 P. 1099 (1911).

The principal difficulty found in the cases interpreting this statute has to do with the right to resist an unlawful arrest. Under 22 O.S. Supp. 1995, § 196, a peace officer is authorized to arrest without a warrant in a number of circumstances. These include when a misdemeanor is committed or attempted in the officer's presence, the officer has probable cause to believe that a person under the influence of alcohol or an intoxicating substance was driving or in actual physical control of a motor vehicle involved in an accident, an officer has probable cause to believe a person has committed an act of domestic violence within the past four hours, or an officer is acting on a violation of a protective order. If a peace officer lacks authority to to arrest a person without an arrest warrant and attempts to do so, the officer is a trespasser, and the person sought to be arrested may resist. Davis v. State, 53 Okl. Cr. 411, 12 P.2d 555 (1932). See also Sandersfield v. State, 568 P.2d 313 (Okl. Cr. 1977); Morrison v. State, 529 P.2d 518 (Okl. Cr. 1974); Carter v. State, 507 P.2d 932, 933-34 (Okl. Cr. 1973); Walters v. State, 403 P.2d 267 (Okl. Cr. 1965).

A person may use only reasonable force in resisting an unlawful arrest. In Davis, supra, the Court of Criminal Appeals stated:

53 Okl. Cr., at 418, 12 P.2d, at 577.

A recent case has given a slightly different view to the subject of resisting an arrest. In Ajeani v. State, 610 P.2d 820 (Okl. Cr. 1980), the defendant was arrested and charged with breach of the peace and public intoxication. The defendant resisted the officer in the officer's efforts to make the arrest. As a result, the defendant was also charged with resisting an officer and with assault and battery upon a police officer. The defendant was acquitted of the public-intoxication and breach of the peace charges. He was convicted for resisting an officer and for assault and battery upon a police officer.

On appeal, the defendant claimed that, since he had been acquitted of the charges forming the basis for his arrest, no public offense had in fact been committed in the officer's presence and his arrest was unlawful. As a result, he claimed that he was lawfully resisting an unlawful arrest. Judge Bussey, in writing for a divided court, stated:

Id. at 822.

It would appear that, if the officer's mistake is honest and reasonable, the arrest is lawful. The court did state, however, that mere suspicion or subterfuge would not justify a warrantless misdemeanor arrest and that information supplied by a third person would not suffice.

In Ajeani, the Court of Criminal Appeals also held that it was improper under 21 O.S. 1991, § 11, to charge a defendant both with resisting an officer and with assault and battery upon a police officer for the same conduct by the defendant, occurring during the same transaction.