Resisting arrest in Nebraska is a Class I misdemeanor on a first offense, punishable by up to one year in jail and a fine of up to $1,000. The charge becomes a Class IIIA felony if you have a prior resisting arrest conviction or if you used or threatened to use a deadly or dangerous weapon, raising the exposure to as much as three years in prison and a $10,000 fine. The offense is defined in Nebraska Revised Statute 28-904, and the law applies even when you believe the arrest itself is unjustified.
What the Statute Actually Covers
Resisting arrest means intentionally preventing or trying to prevent a peace officer from making an arrest. Section 28-904 breaks the conduct into three categories:
- Using or threatening physical force against the officer or anyone else.
- Creating a substantial risk of bodily injury to the officer or a bystander.
- Using any means that requires substantial force to overcome, such as bracing in a doorway or locking onto a fixed object.
Intent is the hinge. You have to be deliberately trying to stop the arrest. Being slow to comply isn’t the same thing, and verbal disagreement by itself isn’t a crime under this statute. Arguing with the officer, asking questions, or saying you think the arrest is wrong doesn’t cross the line. Physical action or a credible threat of violence does.
“Peace officer” is read broadly and includes sheriffs, municipal police, state troopers, and others with arrest authority.
First-Offense Penalties
A first conviction is a Class I misdemeanor: up to one year in jail, a fine of up to $1,000, or both.1Nebraska Legislature. Nebraska Code 28-904 – Resisting Arrest; Penalty; Affirmative Defense2Nebraska Legislature. Nebraska Code 28-106 – Misdemeanor Classification of Penalties There’s no mandatory minimum, so a judge can impose probation, community service, or a shorter jail term depending on the facts.
The conviction stays on your record. It shows up on background checks and can affect employment, housing, and professional licensing long after the sentence is finished.
When Resisting Arrest Becomes a Felony
Two situations push the charge up to a Class IIIA felony:
- A second or subsequent resisting arrest conviction, no matter how much time has passed since the first.
- Resisting while using or threatening to use a deadly or dangerous weapon, even on a first offense.1Nebraska Legislature. Nebraska Code 28-904 – Resisting Arrest; Penalty; Affirmative Defense
A Class IIIA felony carries up to three years in prison, up to eighteen months of post-release supervision, a fine of up to $10,000, or both prison and the fine. There’s no mandatory minimum on either the prison term or the supervision period.3Nebraska Legislature. Nebraska Code 28-105 – Felony Classification of Penalties
You don’t have to injure anyone for the weapon upgrade to apply. Brandishing a knife, reaching for a firearm, or swinging an object capable of causing serious injury is enough. Items not usually thought of as weapons can qualify if they’re used in a way that could cause severe harm.
Defenses to a Resisting Arrest Charge
Plainclothes Officer Without Credentials
Section 28-904 writes one affirmative defense directly into the statute. If the arresting officer was out of uniform and failed to show credentials identifying themselves as law enforcement, you have a valid defense.1Nebraska Legislature. Nebraska Code 28-904 – Resisting Arrest; Penalty; Affirmative Defense Both conditions must apply. A uniformed officer, or a plainclothes officer who displayed a badge or ID before the arrest, defeats the defense. Because it’s affirmative, you have to raise it and put on evidence; the prosecution isn’t required to disprove it until you do.
No Right to Resist an Unlawful Arrest
This part catches many people off guard. Under Nebraska Revised Statute 28-1409, force is not justifiable to resist an arrest you know is being made by a peace officer, even if the arrest itself is unlawful.4Nebraska Legislature. Nebraska Code 28-1409 – Use of Force in Self-Protection Whether the officer had probable cause or followed the right procedure is a question for a judge afterward. The remedy for a bad arrest is a motion to suppress, a civil rights suit, or a complaint to the department. Fighting back just adds another charge.
Self-Defense Against Excessive Force
There’s a narrow exception. Nebraska courts have recognized that when an officer uses unreasonable force during an arrest, self-defense can apply. Under State v. Yeutter, a trial court must instruct the jury on self-defense when there’s evidence the officer used excessive force.1Nebraska Legislature. Nebraska Code 28-904 – Resisting Arrest; Penalty; Affirmative Defense The force you use in response has to be proportional, and you still have to convince a jury the officer crossed the line. It’s a difficult defense to win, but the law doesn’t require you to passively absorb a beating.
Charges That Often Get Added
Resisting arrest rarely shows up alone on a charging document. Two companion offenses come up constantly.
Obstructing a Peace Officer
Under Nebraska Revised Statute 28-906, obstructing a peace officer is a separate Class I misdemeanor covering force, threats, physical interference, or placing an obstacle to intentionally hinder an officer enforcing the law.5Nebraska Legislature. Nebraska Code 28-906 – Obstructing a Peace Officer; Penalty Running from an officer counts. Refusing to answer questions does not. The penalties match a first-offense resisting charge, and because obstruction and resisting arrest are distinct offenses, you can be convicted of both from the same incident and sentenced consecutively.
Third-Degree Assault on a Peace Officer
If the officer suffers any bodily injury, the state can add third-degree assault on a peace officer under Nebraska Revised Statute 28-931. That’s a Class IIIA felony and applies when someone intentionally, knowingly, or recklessly causes bodily injury to a peace officer, firefighter, emergency responder, or correctional employee on duty.6Nebraska Legislature. Nebraska Code 28-931 – Assault on an Officer in the Third Degree Nebraska courts have held that visible bruises aren’t required; the prosecution only needs to show some bodily injury occurred.
What a Felony Conviction Costs Beyond the Sentence
A felony resisting conviction, whether from a prior or a weapon, carries consequences that outlast any time served.
The most immediate is losing your right to possess firearms. Under Nebraska Revised Statute 28-1206, anyone convicted of a felony is barred from possessing a firearm, knife, or brass or iron knuckles, and violating that ban is itself a felony.7Nebraska Legislature. Nebraska Code 28-1206 – Possession of a Deadly Weapon by a Prohibited Person; Penalty Federal law adds a parallel firearm ban that applies nationwide.
A felony record can also disqualify you from certain professional licenses, limit employment, and complicate rental applications. Nebraska allows some felonies to be set aside through its pardon process, but it’s a long path with no guaranteed outcome. If you’re facing a resisting arrest charge, especially one with felony exposure, talking to a Nebraska criminal defense attorney early gives you the best chance of protecting both the immediate case and the longer record.