Monday, October 19, 2026

Legal Myth Monday: The Myths and Realities of Trespass

Trespass rarely arrives wearing a black mask and carrying a sack marked “PROPERTY RIGHTS.” 

Sometimes it looks like a neighbor's fence, a shortcut across the yard, a wayward dog, or even a puff of smoke drifting across the property line.

Behind these deceptively innocent intrusions lurks a surprisingly complex body of law and the myths are everywhere.

So, today, we're going to explore all things Trespass so that you don't get crossed up (or crossed over) where you ought not be. 

Myth #1: “If there’s not a No Trespassing sign posted, it isn’t trespassing.”

Reality: A sign is useful evidence of lack of permission, but civil trespass does not generally depend upon a sign.

Authority:  State v. Christensen, 131 Idaho 143, 953 P.2d 583, 587–88 (1998).

Christensen involved law enforcement entering private property during an investigation. The property owner argued that a “No Trespassing” sign demonstrated that the officers had no implied license to enter.

The Idaho Supreme Court recognized that a clearly posted “No Trespassing” sign, particularly when combined with a physical barrier such as a gate, can revoke the ordinary implied license to approach a residence. The court contrasted that situation with circumstances in which the property owner has not clearly manifested an intent to exclude visitors.

Reality Check:  A sign is a warning, not a magic spell. Your property doesn't suddenly become trespass-proof only after somebody hammers up a piece of plywood saying “KEEP OUT.” 

Myth #2: “You have to intend to trespass.”

Reality: You generally have to intend the physical entry, but you do not have to intend to violate someone else's property rights.

Authority:  Ansay v. Boecking-Berry Equip. Co., 450 F.2d 433, 435–36 (10th Cir. 1971).

The case involved an unlawful possession of land and whether the defendant's good-faith belief that its legal position was correct should protect it from trespass liability or reduce the damages.

The Tenth Circuit held that the defendant's state of mind was generally irrelevant to the trespass claim. The required intent was simply the intent to perform the act that resulted in the entry. Thus, a person can be liable even when acting in good faith and under a reasonable—but mistaken—belief that the entry is lawful.

Reality Check:  “But I thought it was my property!” is not automatically a Get-Out-of-Trespass-Free card. 

Myth #3: “If I accidentally cross the property line, I can't be liable for trespass.”

Reality: An innocent mistake about the boundary does not necessarily defeat the underlying trespass claim.

Authority:  Fischer v. Croston, 164 Idaho 189, 438 P.3d 1211 (2019).

This was a boundary dispute between neighboring landowners. The parties disagreed about ownership of a strip of property. One side entered the disputed property, removed vegetation, and constructed a fence. The defendants argued that their conduct was based on their belief concerning the boundary.

The Idaho Supreme Court explained that an innocent mistake concerning the boundary or location of property can matter to trespass liability and damages, but it distinguished that situation from conduct occurring after the defendant has been put on notice that the property is disputed. 

Once the defendants knew of the dispute and nevertheless reentered, cut vegetation, and erected the fence, the court found the conduct willful and intentional and upheld trespass liability and treble damages.

Reality Check:  Your surveyor may be wrong. Your GPS may be wrong. Your memory may definitely be wrong. The property line doesn't care. 

Myth #4: “If I didn't damage anything, there is no trespass.”

Reality: Physical damage isn't required.

Authority: Walker Drug Co. v. La Sal Oil Co., 972 P.2d 1238, 1243–44 (Utah 1998).

The Utah Supreme Court considered trespass and the damages associated with an invasion of possessory rights.

Trespass protects the right to exclusive possession. Proof of actual damage is not necessary to establish liability; damages can include nominal damages where substantial damages aren't shown.

Reality Check:  You don't have to bulldoze the rose garden. Sometimes the trespass is the damage. 

Myth #5: “Trespass only happens when a person physically walks onto someone else's property.”

Reality: A trespass can occur when a person causes another person or a thing to enter the land.

Authority:  Pub. Serv. Co. of Colo. v. Van Wyk, 27 P.3d 377, 389–90 (Colo. 2001).

The plaintiffs alleged that emissions from the defendant's electrical transmission operations crossed onto their property. The Colorado Supreme Court addressed whether trespass requires the defendant, or a tangible object, to physically enter the property.

The court explained that traditional trespass involves a physical intrusion, and that the Restatement recognizes liability where the defendant “causes a thing or third person” to enter another's land. The court then went further and held that, under Colorado law, intangible intrusions can also constitute trespass when they satisfy the applicable requirements.

Reality Check:  Your feet aren't required. Your trash can, dirt pile, fence, equipment or anything else you intentionally put over the line can do the trespassing for you. 

Myth #6: “If I built the fence on the wrong side of the property line by mistake, that's not trespass.”

Reality: It can be.

Authority:  La Bruno v. Lawrence, 64 N.J. Super. 570, 166 A.2d 163, 166–68 (App. Div. 1960).

A surveyor mistakenly located the boundary between neighboring properties. Relying on the erroneous survey, the neighboring property owners had a fence constructed on the plaintiff's property. The plaintiff sued for trespass and damages.

The New Jersey Appellate Division held that the surveyor's mistake, honest belief, or professional negligence was not a defense to the underlying trespass. The court did, however, distinguish between trespass liability and punitive damages: the mistake could negate the intentional wrongdoing necessary for punitive damages.

Reality Check:  “Oops” is a perfectly good explanation of how the fence got there. It isn't necessarily a legal defense to leaving it there. 

Myth #7: “Trespass requires malicious or bad-faith conduct.”

Reality: No. Malice or bad faith may become important when determining punitive damages, but they're not necessary for basic trespass liability.

Authority:  Miller v. National Broadcasting Co., 187 Cal. App. 3d 1463, 1477–78, 232 Cal. Rptr. 668 (1986).

NBC's camera crew entered the plaintiff's apartment without authorization while investigating a story. The trial court had concluded that there was no trespass because the defendants lacked malice and the plaintiff suffered no actual damage.

The California Court of Appeal rejected that reasoning. The court explained that trespass is an intentional tort in the legal sense because the defendants intended to enter the property. Their particular motivation (whether malicious, innocent, or otherwise) was not necessary to establish trespass. The court specifically distinguished the intent required for trespass from the state of mind that might justify punitive damages.

Reality Check:  You don't have to be a villainous villain twirling a mustache. Sometimes you're just a trespassing trespasser. 

Myth #8: “Only the person who owns the property can sue for trespass.”

Reality: Trespass is fundamentally a possessory action. Ownership and possession are not necessarily the same thing.

Authority:  Manor Enterprises, Inc. v. Vivid, Inc., 228 Wis. 2d 59, 596 N.W.2d 425 (Ct. App. 1999).

The case involved a dispute over unauthorized placement of objects on property. The defendant challenged the plaintiff's ability to maintain a trespass action.

The Wisconsin Court of Appeals expressly stated that a plaintiff in a trespass action need establish only a right to possession of the land, not ownership of the land. In other words, trespass protects the possessory interest.

Reality Check:  Trespass law protects possession, not just whoever has the prettiest deed in the filing cabinet. 

Myth #9: “Once you give someone permission to enter your property, they can keep coming back.”

Reality: Consent has boundaries. Permission can be limited, revoked, or exceeded.

Authority: Restatement (Second) of Torts § 158 (Am. L. Inst. 1965)

Keyzer v. Amerlink, Ltd., 173 N.C. App. 736, 620 S.E.2d 511 (2005).

The case involved a dispute over entry onto property where the defendants claimed they had permission to enter. The North Carolina Court of Appeals examined the nature and limits of consent to enter another person's land.

The court explained that consent to enter another's property is conditional, not absolute. A person who initially enters with permission can become a trespasser by subsequently exceeding or abusing the scope of that permission. The court relied on Blackwood v. Cates, 297 N.C. 163, 167, 254 S.E.2d 7, 9 (1979), for the principle that an initially lawful entry can become trespass when the entrant's subsequent conduct exceeds the authority granted.

Reality Check:  “Come over anytime” is not the same thing as “Congratulations, you've acquired a lifetime easement.” 

Myth #10: “If the public has traditionally used private land, that automatically gives the public a legal right to use it.”

Reality: Longstanding use does not automatically create a public easement.

Authority:  Clickner v. Magothy River Ass'n, 424 Md. 253, 35 A.3d 464 (2012).

The case involved Dobbins Island, where members of the public had historically used a beach on privately owned property. The public had used the beach for years, and the question was whether that longstanding use had created a legal right to continue using the private property.

The Maryland Court of Appeals held that the public's historic use did not automatically establish a public easement or right of access. The court applied a presumption that public use was permissive rather than adverse. Because the evidence did not establish that the public had used the property under a claim of right, the use remained a revocable license, which the owners could terminate.

Reality Check:  “Because we've always done it” might work at a family reunion, it's considerably less impressive in a property dispute. 

Myth #11: “If my neighbor lets me use part of his property long enough, I automatically get an easement.”

Reality: Permission and adverse use are fundamentally different concepts. Long use does not automatically create a property right.

Authority:  Workman v. Klinkenberg, 4 Wn. App. 2d 981, 430 P.3d 716, 721–23 (2018).

The dispute concerned a claimed prescriptive easement over neighboring property. The claimant argued that his long use of the property entitled him to an easement.

The Washington Court of Appeals held that when use of another person's property begins as a neighborly accommodation, the person claiming a prescriptive easement must overcome the presumption that the use was permissive. The claimant must show when and how the use became adverse. Simply continuing to use the property doesn't automatically transform permission into a property right.

Reality Check:  Ten years of your neighbor saying “Sure, go ahead” doesn't necessarily mean you now own a piece of his driveway. 

Myth #12: “If I genuinely need to cross someone's property, necessity makes it legal.”

Reality: Necessity can be a recognized defense or can support certain property doctrines, but “I really needed to” isn't a universal trespass exemption.

Authority: Restatement (Second) of Torts § 197 (Am. L. Inst. 1965) 

Ploof v. Putnam, 81 Vt. 471, 71 A. 188, 190 (1908).

Ploof was sailing on Lake Champlain when a violent storm arose. He sought refuge by mooring his boat to the defendant's dock. The defendant's servant untied the boat, causing it to be driven ashore and damaged.

The Vermont Supreme Court held that necessity can justify what would otherwise be a trespass. When a person reasonably enters another's property to escape an imminent danger, the entry can be privileged. The court therefore rejected the argument that the plaintiff's entry onto the private dock was simply an unlawful trespass.

Reality Check:  “I was taking a shortcut” and “I was escaping a life-threatening emergency” are not exactly the same legal argument. 

Myth #13: “If someone is trespassing, the property owner can do whatever is necessary to remove them.”

Reality: The right to exclude trespassers does not give a landowner unlimited authority to use force.

Authority: Restatement (Second) of Torts §§ 77–83 (Am. L. Inst. 1965):  The common-law privilege of reasonable self-help is limited by the circumstances and applicable state law.

Saidi v. United States, 110 A.3d 606, 611–12 (D.C. 2015).

Saidi was charged with assault after he punched a man who refused to leave an apartment. Saidi claimed he was justified in using force to eject a trespasser and protect his property.

The D.C. Court of Appeals recognized that a person lawfully in possession of real property has a common-law privilege to use a reasonable amount of force to eject a trespasser. But that privilege ends when the force used exceeds what is reasonably necessary under the circumstances. The court upheld Saidi's conviction because the evidence supported the conclusion that his use of force was not justified.

Reality Check:  “Get off my lawn” is property law. “And now I'm going to beat you with a baseball bat” is a completely different legal seminar. 

Myth #14: “If I don't know the property line, I can't be liable for trespass.”

Reality: Lack of knowledge of the boundary is not necessarily a defense to the underlying trespass.

Authority:   Barrios v. Simpkins, No. M2021-01347-COA-R3-CV, 2022 WL 16846642 (Tenn. Ct. App. Nov. 10, 2022).

Neighboring landowners disputed the location of their common boundary. The trial court established the boundary but dismissed the trespass claim because the defendants believed the disputed property belonged to them.

The Tennessee Court of Appeals held that the defendants' belief that they owned the property did not eliminate the intent required for trespass. The relevant intent was the intent to be on the land; the defendants' subjective belief concerning ownership was irrelevant to that element. The trespass claim was therefore remanded for further proceedings.

Reality Check:  The law doesn't require you to carry a surveyor's transit in your backpack. Unfortunately, it also doesn't require the boundary to announce itself when you cross it. 

Myth #15: “Civil trespass means the defendant was negligent.”

Reality:  Here's the head-spinner: trespass is generally an intentional tort, but the defendant doesn't have to intend the damage or even realize the act will invade someone else's property. The relevant intent can be simply intending to perform the act that produces the intrusion (ie walking across the property line).

Authority:  Hoery v. United States, 64 P.3d 214, 217–18 (Colo. 2003).

The case involved claims arising from government activities that allegedly caused an intrusion onto private property. The Colorado Supreme Court examined the intent requirement for trespass and distinguished intentional trespass from negligence.

The court held that trespass requires an intent to perform the act that itself constitutes, or inevitably causes, the intrusion. The defendant does not have to intend to cause the resulting damage. Colorado therefore treats trespass as an intentional tort rather than simply another form of negligence.

Reality Check:  “I accidentally did it” may save you from one tort while leaving you standing squarely in another.

The bottom line here is that trespass law isn't about who crossed the line with the most nefarious intentions  Sometimes, you can be trespassing without even realizing you've crossed that line.  While the law draws the line it, unfortunately, doesn't always paint it bright yellow.

 


Monday, October 12, 2026

STOP RESISTING!!!!

You know what I think is odd?  Police who yell/shout/scream at people they're arresting to stop resisting who are also trying NOT to be arrested - and then charge people with resisting arrest because, why?!

I mean, who in their right mind WANTS to be restrained and/or put in handcuffs (well, unless, uh,...they're into that sort of thing in the bedroom, or something).

It's only natural to resist being restrained and then you go and penalize someone for resisting?  It's like saying you can't breathe and then get arrested for breathing. 

Anyway, I was out and about the other day and I witnessed two police officers arresting this guy who really didn't want to be arrested.  He was flip flopping more than a politician in an election year and all the while the police were yelling, "STOP RESISTING!!!" and he wasn't having it.

Two tasers later, guy was subdued, in the back of the patrol car, and off to the pokey.

So, for reference sake, “resisting arrest” is a criminal charge that generally applies when a person intentionally tries to prevent a law enforcement officer from lawfully carrying out an arrest, detention, or search. 

Not only is resisting arrest a criminal charge, but it is a separate charge not connected to the underlying charge.  In almost every U.S. jurisdiction, resisting arrest is its own, independent criminal offense.  

This means prosecutors can (and often do) charge resisting arrest in addition to the crime that led to the arrest (e.g., DUI + resisting).

So, even if the underlying charge is later dismissed, dropped, or results in acquittal, the resisting arrest charge does not automatically go away. Prosecutors can still pursue resisting arrest, because the elements are different.  What matters is whether the officer was acting under color of law and the defendant engaged in “resisting” behavior. 

What are some examples of resisting behavior?

  • Running away after being told you’re under arrest.
  • Physically struggling or refusing to put your hands behind your back.
  • Blocking or interfering with another person’s arrest.
  • Giving false identification during an arrest (in some jurisdictions). 

Other related charges associated with resisting arrest include:

  • Obstruction of justice.
  • Assault on a peace officer.
  • Escape (if someone flees after being arrested or in custody). 

Courts often draw an important distinction when looking at a charge of resisting arrest. 

If the underlying charge fails on technical grounds (e.g., lack of evidence, procedural defect), resisting arrest usually still stands.  On the other hand, if the arrest itself was unlawful (e.g., no probable cause, unconstitutional stop), then the resisting arrest charge is often thrown out.

While it's called different things in different jurisdictions, every state in the union has a statute dealing with resisting arrest, like so:

Alabama: Code of Alabama §13A-10-41 – Resisting Arrest (Class B misdemeanor).

Alaska: Alaska Stat. §11.56.700 – Resisting or Interfering with Arrest.

Arizona: A.R.S. §13-2508 – Resisting Arrest (Class 6 felony if using force).

Arkansas: Ark. Code §5-54-103 – Resisting Arrest.

California: Cal. Penal Code §148(a)(1) – Resisting, Delaying, or Obstructing an Officer.

Colorado: Colo. Rev. Stat. §18-8-103 – Resisting Arrest.

Connecticut: Conn. Gen. Stat. §53a-167a – Interfering with an Officer.

Delaware: Del. Code tit. 11, §1257 – Resisting Arrest with Force or Violence.

Florida: Fla. Stat. §843.01–843.02 – Resisting Officer with Violence (felony) and Without Violence (misdemeanor).

Georgia: O.C.G.A. §16-10-24 – Obstructing or Hindering Law Enforcement.

Hawaii: HRS §710-1026 – Resisting Arrest.

Idaho: Idaho Code §18-705 – Resisting and Obstructing Officers.

Illinois: 720 ILCS 5/31-1 – Resisting or Obstructing a Peace Officer.

Indiana: Ind. Code §35-44.1-3-1 – Resisting Law Enforcement.

Iowa: Iowa Code §719.1 – Interference with Official Acts.

Kansas: Kan. Stat. §21-5904 – Interference with Law Enforcement.

Kentucky: KRS §520.090 – Resisting Arrest.

Louisiana: La. R.S. §14:108 – Resisting an Officer.

Maine: 17-A M.R.S. §751 – Refusing to Submit to Arrest or Detention.

Maryland: Md. Code, Crim. Law §9-408 – Resisting Arrest.

Massachusetts: Mass. Gen. Laws ch. 268, §32B – Resisting Arrest.

Michigan: MCL §750.81d – Resisting and Obstructing a Police Officer.

Minnesota: Minn. Stat. §609.50 – Obstructing Legal Process, Arrest, or Firefighting.

Mississippi: Miss. Code §97-9-73 – Resisting Arrest.

Missouri: Mo. Rev. Stat. §575.150 – Resisting or Interfering with Arrest, Detention, or Stop.

Montana: Mont. Code §45-7-301 – Resisting Arrest.

Nebraska: Neb. Rev. Stat. §28-904 – Resisting Arrest.

Nevada: NRS §199.280 – Resisting Public Officer.

New Hampshire: RSA §642:2 – Resisting Arrest or Detention.

New Jersey: N.J.S.A. §2C:29-2 – Resisting Arrest; Eluding Officer.

New Mexico: NMSA §30-22-1 – Resisting, Evading, or Obstructing an Officer.

New York: N.Y. Penal Law §205.30 – Resisting Arrest.

North Carolina: N.C. Gen. Stat. §14-223 – Resist, Delay, or Obstruct an Officer.

North Dakota: N.D. Cent. Code §12.1-08-02 – Preventing Arrest or Discharge of Other Duties.

Ohio: Ohio Rev. Code §2921.33 – Resisting Arrest.

Oklahoma: 21 Okl. St. §268 – Resisting Executive Officer.

Oregon: ORS §162.315 – Resisting Arrest.

Pennsylvania: 18 Pa. Cons. Stat. §5104 – Resisting Arrest or Other Law Enforcement.

Rhode Island: R.I. Gen. Laws §12-7-10 – Resisting Lawful Arrest.

South Carolina: S.C. Code §16-9-320 – Resisting Arrest; Assaulting an Officer While Resisting Arrest.

South Dakota: S.D. Codified Laws §22-11-4 – Resisting Arrest.

Tennessee: Tenn. Code §39-16-602 – Resisting Stop, Frisk, Halt, Arrest, or Search.

Texas: Tex. Penal Code §38.03 – Resisting Arrest, Search, or Transportation.

Utah: Utah Code §76-8-305 – Interference with Arresting Officer.

Vermont: 13 V.S.A. §3017 – Resisting Arrest.

Virginia: Va. Code §18.2-460(E) – Obstructing Justice (Resisting Arrest provision).

Washington: RCW §9A.76.040 – Resisting Arrest.

West Virginia: W. Va. Code §61-5-17 – Obstructing an Officer.

Wisconsin: Wis. Stat. §946.41 – Resisting or Obstructing Officer.

Wyoming: Wyo. Stat. §6-5-204 – Resisting Arrest.

So, how does this all play out in real life?  I mean, do resisting arrest charges stick or do they get tossed out like charges for interfering with police?  Turns out, there are no hard and fast rules and resisting arrest is not always a guaranteed win.

United States Supreme Court

  • Bad Elk v. United States, 177 U.S. 529 (1900)

    • Holding: A defendant could resist an unlawful arrest (at the time) and use reasonable force. The Court overturned the conviction, reasoning that if the officer had no right to arrest, resistance wasn’t a crime.

    • Note: Most modern jurisdictions no longer follow this strict rule — now you generally cannot resist even an unlawful arrest.

Alaska

  • The Alaska Court of Appeals reversed a resisting-arrest conviction because the defendant ran from a trooper and hid in the woods, but there was insufficient evidence that he used the “force” required by Alaska's resisting-arrest statute, AS 11.56.700. Alaska's statute doesn't make mere noncompliance or flight automatically resisting arrest. Section 11.56.700 requires that the person resist by force, criminal mischief, or means creating a substantial risk of physical injury. A violation is a Class A misdemeanor.

California

  • People v. Curtis, 70 Cal.2d 347 (1969)

    • Conviction for resisting arrest reversed because jury instructions failed to clarify that the defendant had a limited right to resist excessive force.

  • People v. Quiroga, 16 Cal.App.4th 961 (1993)

    • Resisting arrest conviction overturned; simply refusing to sit down or give one’s name was not enough to constitute “resisting, delaying, or obstructing.”

New York

  • People v. Cherry, 307 N.Y. 308 (1954)

    • Overturned resisting arrest conviction because the arrest was unlawful (no probable cause).

    • New York law requires a lawful arrest as a prerequisite for resisting arrest.

Florida

  • Slydell v. State, 792 So.2d 667 (Fla. Dist. Ct. App. 2001)

    • Conviction overturned because defendant’s actions (walking away, refusing to answer) didn’t amount to “resisting.”

  • Francis v. State, 736 So.2d 97 (Fla. Dist. Ct. App. 1999)

    • Simply pulling arm away without violence was not resisting with violence; conviction overturned.

Texas

  • Sheehan v. State, 201 S.W.3d 820 (Tex. App. 2006)

    • Conviction reversed; refusal to obey officer’s command without physical force did not meet statutory definition of resisting.

North Carolina

  • State v. Lynch, 94 N.C. App. 330 (1989)

    • Court overturned resisting arrest conviction because the officer’s stop was unlawful (no reasonable suspicion), so resistance was not criminal.

Ohio

Massachusetts


A few key things to note in cases where a resisting arrest charge was overturned:

  1. Unlawful Arrest → If the arrest itself was unlawful (no probable cause, bad stop, invalid warrant), convictions for resisting have been reversed.
  2. Insufficient Evidence of Resistance → Passive non-compliance (silence, walking away, pulling arm back slightly) is often not enough to sustain a conviction.
  3. Excessive Force by Police → Some courts allow resistance if officers use unreasonable or excessive force.
  4. Statutory Interpretation → Courts overturn convictions where prosecution stretched the meaning of “resist” or “obstruct” too far.

That all said, it's important to note that for as many cases where the charge of resisting arrest was overturned, there are as many cases where the charge was upheld in court, like:

United States Supreme Court

  • United States v. Cunningham, 509 U.S. 25 (1993) (per curiam)

    • Upheld resisting-related conviction under federal law; the Court emphasized that active physical resistance against officers during lawful duties can be punished separately from the underlying offense.

California

  • In re Bacon, 240 Cal.App.2d 34 (1966)

    • Conviction upheld where defendant physically struggled against police during a lawful arrest. The court held that “resisting” includes physical opposition.

  • People v. Allen, 109 Cal.App.3d 981 (1980)

    • Defendant’s attempt to pull away and strike officers during arrest was sufficient for resisting; conviction affirmed.

Florida

  • C.E.L. v. State, 24 So.3d 1181 (Fla. 2009)

    • Florida Supreme Court upheld resisting without violence conviction where juvenile fled from officers during a lawful investigatory stop. Flight alone constituted resistance.

  • Santiago v. State, 889 So.2d 1244 (Fla. Dist. Ct. App. 2005)

    • Conviction affirmed where defendant tensed his arms and refused to be handcuffed, even without throwing punches.

Texas

  • Ford v. State, 538 S.W.2d 633 (Tex. Crim. App. 1976)

    • Conviction upheld; defendant’s refusal to be handcuffed and physical struggle with officers satisfied statutory definition of resisting arrest.

  • Latham v. State, 128 S.W.3d 325 (Tex. App. 2004)

    • Affirmed conviction; resisting arrest statute applies even if minimal force is used to prevent lawful arrest.

North Carolina

  • State v. Burton, 108 N.C. App. 219 (1992)

    • Conviction affirmed; defendant pulled away and kicked officers during a lawful DWI arrest.

Massachusetts

  • Commonwealth v. Grandison, 433 Mass. 135 (2000)

    • Conviction upheld where defendant repeatedly refused commands, fled, and physically fought officers; statute covers both passive and active resistance.

Some key themes to note in a valid charge of resisting arrest during a lawful arrest:

  1. Lawful Arrest → Courts uphold resisting convictions when probable cause for the arrest exists.

  2. Active Resistance → Physical struggles, fleeing, or tensing arms against handcuffs almost always lead to upheld convictions.

  3. Passive Resistance Split → Some states (e.g., Florida, Massachusetts) hold that refusal or flight alone can count as resisting; others (like California) require more active conduct.

  4. Separate Offense → Courts repeatedly affirm that resisting arrest is distinct from the underlying crime, so even if the other charge is weak, resisting may still stand.

 


Bottom line to all this, if you did the crime, suck it up and do the time.  

If you didn't do the crime, then by all means fight tooth and nail  - in court.  Fight tooth and nail in court because if you fight with police, on the spot, they'll nail you for something else like assaulting a police officer - or worse.

And no one wants that.

 

 

Monday, October 5, 2026

Word of the Month for October 2026: National Sales Tax

There are some words that sound almost comforting:  Freedom. Fairness. Simplicity.

And then there are three other words that make the hairs on the back of a taxpayer's neck stand up: "Federal Sales Tax."

Imagine, for a moment, that Congress comes along and tells you that the income tax is going away. No more Form 1040. No more withholding from your paycheck. No more payroll tax. No more federal estate and gift tax. And, perhaps most tantalizing of all, no more Internal Revenue Service.

Sounds pretty good, doesn't it?

Now imagine that Congress hands the job of collecting the replacement tax to the states.

Wait.  Hold up.  The ugly step sisters?  The bumbling in-laws?  Those are "the states" of which you speak?

Yep.  The very state governments that already have their own sales-tax statutes, tax commissions, regulations, auditors, filing requirements, exemptions, definitions, enforcement procedures and (depending upon where you live) some rather creative ideas about what constitutes a taxable "service"?

Now the plot thickens.

That is essentially what the FairTax Act of 2025, H.R. 25, 119th Cong., 1st Sess. (2025) proposes.

And before we go any further, let's clear up one piece of political housekeeping: H.R. 25 was NOT introduced by President Donald Trump. It was introduced by Representative Earl "Buddy" Carter of Georgia on January 3, 2025, and referred to the House Committee on Ways and Means. As of October 2026, it remains a bill not a law.

So why discuss it now?

Because H.R. 25 proposes one of the most radical changes to the federal tax system in modern American history.  And once you get past the seductive phrase "abolish the IRS," there is considerably more going on.

Before we get all into this, let's define what we're talking about here.  NATIONAL SALES TAX (noun): A national sales tax is a tax imposed by the federal government upon the consumption of taxable goods and services, generally collected at the point of retail sale rather than through taxation of income.

Under H.R. 25, the tax would be imposed on the 

use or consumption in the United States of taxable property or services. 

The bill calls for a 23-percent tax-inclusive rate beginning in 2027, with the rate thereafter tied to the revenue needed for general federal spending, Social Security and Medicare. H.R. 25 § 201, 119th Cong. (2025).

An important word hidden in plain sight is "inclusive."  

See, a 23-percent tax-inclusive rate is not the same thing as adding 23 percent to a $100 purchase.

For example, if the pre-tax price is $100, a 23-percent tax-inclusive rate produces a total price of approximately $129.87. In ordinary sales-tax language, that is roughly a 29.87-percent tax-exclusive rate.

So when somebody says, "It's only 23 percent," the reasonable response is:  "Twenty-three percent of what?" 

So, What Exactly Does H.R. 25 Do?

H.R. 25 is not simply a bill creating another sales tax.  It attempts to rebuild the federal tax system from the ground up in essentially 4 steps.

Step 1. The federal income tax goes out the window.

Section 101 repeals Subtitle A of the Internal Revenue Code, which contains the federal income and self-employment tax provisions.

Step 2. Federal payroll taxes go.

Section 102 repeals Subtitle C, including the federal payroll-tax machinery used for Social Security and Medicare.  But (and this is an important BUT) Social Security and Medicare do not disappear.

The bill instead directs federal sales-tax revenue into the Social Security and Medicare trust funds (under H.R. 25 § 102, § 904) which has been so "perfectly administered" by the federal government for lo these many years.

Step 3. Estate and gift taxes are gone.

Section 103 repeals Subtitle B of the Internal Revenue Code.

Step 4. The IRS is phased out.

This is where the headline gets interesting.  H.R. 25 provides for the phase-out of IRS funding and administration of the repealed federal taxes. It also creates a Sales Tax Bureau within the Department of the Treasury.

So "abolish the IRS" does not mean "abolish federal tax administration."

It means something closer to:  Abolish the IRS as we know it and replace its remaining federal tax functions with other Treasury machinery.

The bill specifically creates a Sales Tax Bureau to administer the national sales tax in states where federal administration becomes necessary and to perform other federal duties relating to the tax under H.R. 25 § 302.

That's our first little plot twist. 

The States Get the Collection Job

This may be the most interesting part of the entire bill.

H.R. 25 says that the national sales tax is to be "administered, collected, and remitted to the United States Treasury" by a state if that state qualifies as an "administering State."

To qualify, a state must maintain a sales tax and enter into a cooperative agreement with the Secretary of the Treasury.

So, as per H.R. 25 § 401 the agreement covers such things as:

  • transfer of federal tax money;
  • information exchange;
  • confidentiality;
  • taxpayer rights;
  • dispute resolution; and
  • other administrative matters.

And the states get paid for doing it.  That's right - an administering state may retain an administration fee equal to one-quarter of one percent of the federal tax it collects.

So the federal government says:  "This is our tax."

The state says:  "Sure. We'll collect it."  

And the state gets to keep a piece of the money for doing so.  That's not exactly the abolition of government tax administration; it's outsourcing. 

And Here Comes Uncle Sam Again

Remember that word in the title, "Primarily?"  H.R. 25 says the national sales tax will be administered primarily by the states.

Not exclusively by the states but "primarily."

What this means is that if a state does not qualify as an administering state, the Secretary of the Treasury administers the federal sales tax there. A state can also have another state perform the job under certain circumstances (kinda like how states dump their trash in New Jersey instead of their own landfills) under H.R. 25 § 404.

Of course, the Secretary of the Treasury retains substantial authority.  In fact, The Treasury Secretary may:

  • issue regulations;
  • issue guidelines;
  • assist states;
  • provide for uniform administration;
  • provide public guidance;
  • facilitate interstate agreements;
  • resolve certain disputes among states; and
  • administer the tax directly in certain jurisdictions.

If a state regulation conflicts with a lawful federal regulation concerning the federal sales tax, the federal regulation controls as per H.R. 25 § 402 and § 406.

So the IRS may be going out the front door but the federal government appears to be leaving a Treasury Department-shaped footprint in the back door. 

The Catch: State Sales Taxes Don't Go Away

This is another point that could easily get lost in the sales tax pitch.  

H.R. 25 does not abolish state sales taxes.  Instead, it specifically contemplates a "conforming State sales tax" which is a state tax using the same definition of taxable property and services as the federal system.

And the bill expressly contemplates that both the federal sales tax and a conforming state sales tax may be paid together in a single payment as per H.R. 25 § 2(a)(2), § 501.

In other words:  Federal sales tax + state sales tax = still possible.  In practice, what we the people could be looking at is a true Socialist 100% tax rate (50% to the Feds and 50% to the states).

So, while the national sales tax replaces federal income and payroll taxation, it does not magically make state taxation disappear.

And this is where things get interesting. 

Fifty States, Fifty Tax Personalities

Today, state sales taxes are hardly uniform.  Utah, for example, taxes tangible personal property and certain services, including particular repair, renovation, cleaning and maintenance services.

Oregon, by contrast, has no general sales or use tax.

That means a national system administered through state tax machinery immediately encounters a basic question:  What exactly is a taxable "service"?  

and that question is not academic.

Utah's courts have spent decades wrestling with it.

In Hardy v. State Tax Commission, 561 P.2d 1064 (Utah 1977), the Utah Supreme Court examined whether materials used by dentists in providing professional services were subject to sales or use tax. The court had to distinguish between the taxable sale of tangible property and a service in which tangible property was merely incidental.

Likewise, in BJ-Titan Services v. State Tax Commission, 842 P.2d 822 (Utah 1992), the Utah Supreme Court dealt with the difficult boundary between taxable tangible property and nontaxable services and discussed the state's "essence of the transaction" and "ultimate user or consumer" approaches.

That is the sort of dispute H.R. 25 would have to address on a national scale.

What happens when the plumber says the customer bought a service?

What happens when the plumber says the customer bought materials plus labor?

What happens when the software company sells a subscription?

What happens when the doctor provides medicine as part of a treatment?

What happens when an attorney sells advice?

What happens when artificial intelligence provides a service?

What happens when a business buys something that is partly for business and partly for personal use?

The bill has answers to some of these questions but/and it does not eliminate the need to argue about them. 

The Supreme Court Has Already Been Down This Road

The good news is that there is a substantial body of sales-tax constitutional law.  The bad news is that it demonstrates just how complicated interstate taxation can become.

In National Bellas Hess, Inc. v. Department of Revenue, 386 U.S. 753 (1967), the Supreme Court held that Illinois could not require an out-of-state mail-order company with no physical presence in Illinois to collect Illinois use tax.

The world, however, changed.

In Quill Corp. v. North Dakota, 504 U.S. 298 (1992), the Court retained the Commerce Clause physical-presence rule for state sales-tax collection even though its Due Process analysis had evolved. The Court expressly noted that Congress possessed the power to resolve the interstate taxation problem.

Then came the internet.

In South Dakota v. Wayfair, Inc., 585 U.S. 162 (2018), the Court overruled the physical-presence rule of Quill and permitted states to require certain remote sellers to collect sales tax based upon economic connections to the state.

In Complete Auto Transit, Inc. v. Brady, the Supreme Court established a four-part test for determining whether a state tax involving interstate commerce violates the Commerce Clause. The tax must apply to an activity with a substantial nexus to the taxing state, be fairly apportioned, not discriminate against interstate commerce, and be fairly related to services provided by the state. Complete Auto Transit, Inc. v. Brady, 430 U.S. 274, 279 (1977).

H.R. 25 is not operating in a constitutional vacuum.  It is stepping into a constitutional minefield that the Supreme Court has spent decades mapping. 

The Really Interesting Part: Destination

H.R. 25 uses a destination principle.  For tangible personal property, the destination generally is where the property is first delivered to the purchaser. Real property is taxed according to where the property is located. Other property generally follows the purchaser's residence, while services have their own destination rules as per H.R. 25 § 405.

Why does that matter?

Because the question becomes: Which state gets the money?

Suppose a company in Utah sells something to a customer in New York.  Utah collects it.  New York claims it.  The seller ships it from Nevada and the customer uses it in Florida.

Welcome to the tax lawyer's version of Clue.

H.R. 25 therefore creates a federal Office of Revenue Allocation to resolve disputes among administering states concerning where taxable property or services are destined. Its decisions would be subject to judicial review in federal court under an abuse-of-discretion standard under H.R. 25 § 405(i).

So, yes, the IRS is being abolished but federal courts, federal regulations, the Treasury Department and a federal Office of Revenue Allocation remain part of the scenery. 

What About Regulations?

Here is an important distinction.  There are no H.R. 25 implementing regulations yet because H.R. 25 is not law.  But the bill anticipates a substantial regulatory structure if enacted.

The Treasury Secretary would have authority to promulgate regulations concerning administration, uniformity, interstate taxation, imported goods, definitions and other matters.

The bill even requires most federal regulations to be published in the Federal Register and generally delayed for 90 days before taking effect, subject to an emergency exception as per H.R. 25 § 406.

Oh, and state tax administrators would still have their own rules and procedures.

That creates an interesting legal question:  How much "national" sales tax can you have when somebody else is doing the administering?

H.R. 25 attempts to answer that by making federal rules controlling when federal and state rules conflict.  And while that all sounds uniform, it also means that the supposedly simple national sales tax could generate an entirely new body of federal regulations interpreting what "taxable," "consumer," "service," "business," "investment," "export," "intermediate sale" and dozens of other terms mean.

The tax code may get shorter but the regulations may not. 

Oh and Don't Forget About the Audits

This is another myth worth killing.  A national sales tax does not mean nobody gets audited.

H.R. 25 gives the sales-tax administering authority authority to issue administrative summonses and conduct examinations and audits of people who may be liable to collect and remit the tax.

Businesses must maintain specified records for six years as per H.R. 25 §§ 507–508.

Oh, and don't forget about the penalties.

For example:

  • knowingly or recklessly accepting a false intermediate or export certificate can trigger a penalty of 20 percent of the uncollected tax;
  • late remittance can result in a penalty of 1 percent per month, up to 24 percent;
  • false rebate claims can result in a civil penalty of at least $500 or 50 percent of the improperly claimed amount;
  • certain false rebate claims can also carry criminal penalties of up to one year imprisonment.

as per H.R. 25 § 504.

So the IRS may disappear; auditors do not.  They just may be wearing state badges. 

The Family Consumption Allowance

H.R. 25 attempts to address one of the biggest criticisms of a consumption tax: poorer households generally spend a greater proportion of their income on necessities.  The bill therefore creates a monthly Family Consumption Allowance, commonly called the "prebate."

Under this "prebate," a qualifying family would receive a monthly amount calculated by multiplying the federal sales-tax rate by the applicable monthly poverty level.

But there is a catch here, too.  The family has to register.

Under H.R. 25 § 301–305, the registration requires information including the names and Social Security numbers of family members sharing the household.

So the system that says:  "You don't have to deal with the IRS anymore" still requires Americans who want their monthly federal consumption allowance to register with the sales-tax administering authority.

Again: Different tax system. Different paperwork. 

So, What Could Possibly Go Wrong?

Now we get to the part every reasonable taxpayer should be asking about.  Not because H.R. 25 is necessarily evil.  Not because the current tax system is wonderful.  But because every complicated government system eventually encounters the law of unintended consequences.

1. The "23 percent" problem

The 23-percent rate is tax-inclusive.  On a conventional tax-exclusive basis, it is approximately 30 percent.  That distinction could become a political and consumer-relations headache.

2. The state bureaucracy problem

Instead of one primary federal tax administrator, taxpayers could be dealing with state agencies administering a federal tax under federal regulations.  That could produce substantial differences in administration, enforcement culture and taxpayer experience.  The Tax Foundation has specifically identified this concern, noting that taxpayers could effectively encounter as many as 51 administering agencies rather than one IRS.

3. The "what is a service?" problem

The more the economy moves toward services, subscriptions, digital products, artificial intelligence and hybrid transactions, the harder it becomes to draw a bright line around taxable consumption.  State courts already struggle with this problem.  A national system will not make the question disappear.

4. The state-tax stacking problem

Nothing in H.R. 25 abolishes state and local taxation.  As I noted above, a federal consumption tax could very well coexist with state and local sales taxes.  The cash register could become a rather crowded neighborhood.

5. The evasion problem

A very high retail tax creates a substantial incentive to avoid the tax.  

  • Buy used instead of new.
  • Buy from someone who does not collect.
  • Buy across borders.
  • Pay cash.
  • Barter.
  • Call a taxable sale a "service."
  • Call a service a "business input."

The higher the tax, the more valuable avoidance becomes.  The bill therefore contains substantial enforcement provisions which brings us right back to audits, records, penalties and government enforcement; none of which address the obvious black market this bill would create.  

6. The "Congress can change its mind" problem

Perhaps the most interesting constitutional wrinkle is the Sixteenth Amendment.  H.R. 25 states that Congress finds that the Sixteenth Amendment should be repealed.  

Wait, what?!  Why get rid of the 16th Amendment?

There is nothing defective about the 16th Amendment that requires repeal.  H.R. 25's sponsors simply want it repealed for a strategic reason: to prevent a future Congress from bringing back a federal income tax after the Fair Tax has replaced it.

Confused?  Let me break this down for you.

The Sixteenth Amendment says:

“The Congress shall have power to lay and collect taxes on incomes, from whatever source derived, without apportionment among the several States…”

The Supreme Court has repeatedly explained that the Amendment removed the constitutional obstacle that Pollock v. Farmers' Loan & Trust Co., 157 U.S. 429 (1895), 158 U.S. 601 (1895), had created for federal income taxation. In Brushaber v. Union Pacific Railroad Co., 240 U.S. 1 (1916), the Court explained that the Amendment confirmed Congress's ability to impose income taxes without apportionment.

So why does H.R. 25 want it gone?  Because repealing the Internal Revenue Code is not the same thing as repealing the constitutional power to tax income.  H.R. 25 would repeal the federal income-tax statutes, but the Sixteenth Amendment would remain sitting in the Constitution.

That means a future Congress could theoretically say:  "Well, we tried this national sales-tax thing and it didn't work.  Let's enact an income tax again."  And Congress wouldn't first have to amend the Constitution to obtain the power to tax income. The constitutional authority would already be there.

That is precisely why H.R. 25 contains its rather extraordinary seven-year sunset provision.  Section 401 provides that if the Sixteenth Amendment isn't repealed within seven years after enactment, the Fair Tax provisions eventually terminate.

Basically, H.R. 25 sponsors want to remove the safety net under their high wire act. 

The Bottom Line

There is nothing inherently unconstitutional about Congress replacing one method of federal taxation with another. The Constitution gives Congress broad taxing authority, subject to constitutional limitations.

Nor is there anything inherently sinister about allowing states to administer a federal tax. Congress has used federal-state cooperative arrangements in numerous areas of government.

The interesting question is whether the proposed system would actually be simpler for Americans.  And it might be.

It might also turn the United States into a nationwide sales-tax laboratory in which 50 states, federal regulators, federal courts, state courts, businesses and taxpayers spend the next decade litigating what exactly constitutes taxable consumption.

And that is the part worth watching.

So, while the IRS may be leaving the stage, the Treasury, state tax agencies, auditors, federal regulations, state regulations, federal courts, state courts, record keeping requirements, penalties and a brand-new Sales Tax Bureau are just waiting in the wings to snatch up your disposable income.

Essentially, same government, new cash register.  And if that sounds suspiciously like the plot twist at the end of a tax-law thriller, well...welcome to the National Sales Tax!