§ Article 87a : Resistance, Flight, Breach of Arrest, and Escape

Article 87a of the UCMJ (10 U.S.C. § 887a) punishes resisting apprehension, fleeing from apprehension, breaking arrest, or escaping from custody or confinement.

Who It Applies To

Any person subject to the UCMJ who resists a lawful apprehension, flees to avoid a lawful apprehension, breaks arrest after having been placed in arrest, or escapes from custody, pretrial confinement, confinement pursuant to nonjudicial punishment under Article 15, or post-trial confinement.

What It Covers

Article 87a covers five offenses, each requiring that the person who apprehended, arrested, or confined the accused had authority to do so.

Resisting apprehension

1. A certain person attempted to apprehend the accused.
2. That person was authorized to apprehend the accused.
3. The accused actively resisted the apprehension.

Flight from apprehension

1. A certain person attempted to apprehend the accused.
2. That person was authorized to apprehend the accused.
3. The accused fled from the apprehension.

Breaking arrest

1. A certain person ordered the accused into arrest.
2. That person was authorized to order the accused into arrest.
3. The accused went beyond the limits of arrest before being released by proper authority.

Escape from custody

1. A certain person apprehended the accused.
2. That person was authorized to apprehend the accused.
3. The accused freed themselves from custody before being released by proper authority.

Escape from confinement

1. A certain person ordered the accused into confinement.
2. That person was authorized to order the accused into confinement.
3. The accused freed themselves from confinement before being released by proper authority.
4. For escape from post-trial confinement: the confinement resulted from a court-martial conviction.

Scope rules

• Resistance must be active, such as assaulting the person making the apprehension. Words of opposition, argument, or abuse are not resisting apprehension, although they may be other offenses. Flight must also be active, such as running or driving away.
• Under the Manual, the accused’s belief that there was no basis for an apprehension is not a defense to resisting it.
• A person cannot be convicted of resisting apprehension, breaking arrest, or escaping from custody if the apprehension, arrest, or custody was illegal. An apprehension or arrest by someone authorized to make it is presumed legal absent evidence to the contrary, and legality is ordinarily a question of law for the military judge.
• For breaking arrest, the reason for leaving the limits of arrest is immaterial — innocence of the underlying offense is not a defense.
• An escape is complete once the person is momentarily free of the restraint. It may be with or without force and with or without the custodian’s consent, but a prisoner released by someone with apparent authority to release them cannot be convicted of escape.
• Post-trial confinement means confinement imposed under a court-martial sentence, not pretrial restraint or nonjudicial punishment.

Maximum Punishment

Maximum authorized punishment.

• Resisting apprehension: bad-conduct discharge, forfeiture of all pay and allowances, and confinement for 1 year.
• Flight from apprehension: bad-conduct discharge, forfeiture of all pay and allowances, and confinement for 1 year.
• Breaking arrest: bad-conduct discharge, forfeiture of all pay and allowances, and confinement for 6 months.
• Escape from custody, pretrial confinement, or confinement imposed under Article 15: dishonorable discharge, forfeiture of all pay and allowances, and confinement for 1 year.
• Escape from post-trial confinement: dishonorable discharge, forfeiture of all pay and allowances, and confinement for 5 years.

Sentencing parameters.

• Resisting apprehension, flight from apprehension, and escape from custody, pretrial confinement, or Article 15 confinement: Category 1 (0–12 months).
• Breaking arrest: Category 1 (0–12 months), with a recommended maximum of 6 months.
• Escape from post-trial confinement: Category 2 (1–36 months).

The newer sentencing rules apply, subject to the capital-case rules, when the accused is convicted only of offenses committed after 27 December 2023. See How UCMJ Sentencing Rules Apply. The maximum authorized punishment and the applicable sentencing framework do not predict the sentence in a particular case.

Related and Distinguished

Article 87a addresses apprehension, arrest, and confinement. Article 87b addresses correctional custody imposed as nonjudicial punishment and restriction. An assault committed while resisting an illegal apprehension is not resisting apprehension, but may be charged as an assault under Article 128.

What the Provision Does

Article 87a covers four ways of defeating lawful restraint — resisting apprehension, fleeing from apprehension, breaking arrest, and escaping from custody or confinement — with maximum confinement from 6 months to 5 years depending on the form.

History

Resisting apprehension, breaking arrest, and escape from custody or confinement appeared in Article 95 of the original 1950 UCMJ, later codified at 10 U.S.C. § 895. Flight from apprehension was added to that article in 1996 (Pub. L. 104-106, § 1112). The Military Justice Act of 2016 (Pub. L. 114-328) renumbered the article as Article 87a, effective January 1, 2019; the Article 95 designation now covers offenses by a sentinel or lookout.

Sources

• 10 U.S.C. § 887a (Article 87a, UCMJ)
• Manual for Courts-Martial, United States, 2024 edition, Part IV, ¶ 12
• Manual for Courts-Martial, United States (2024 ed.), Appendix 12B and Appendix 12C