Cover charges
A cover charge is a charge written to explain what the officer did, not what you did. Resisting arrest explains the force. Obstruction or disorderly conduct explains the arrest. The charge is not itself a separate constitutional claim, but it sits at the center of three that are: false arrest, malicious prosecution and fabricated evidence. It also sets a trap. Pleading guilty to the cover charge, even to a violation, can end the civil case before it starts.
Cover charges is not the name of a legal claim. It is the name lawyers and officers both use for a practice: after force is used, or after an arrest that cannot be explained, the person is charged with resisting arrest, obstruction or disorderly conduct. The charge gives the paperwork a reason. If the account in it is false, you have claims under Section 1983, and which ones depends on what the charge did to you: whether it caused the arrest, kept a prosecution going, or put a false statement in front of a prosecutor.
The same charge is also the main defense to your civil case. It is offered as the probable cause for the arrest and as the reason for the force. And if it ends in a conviction or a plea, it can close the courthouse door. So the first decision in the civil case is usually made in the criminal one.
How it happens
- The injury comes first, the charge second. A person is taken to the ground or struck. Only afterward, at the precinct or the hospital, is a resisting arrest charge added to explain the injuries.
- Resisting with nothing underneath. The only charges are resisting arrest and obstruction. No offense is charged that would explain why an arrest was being made in the first place.
- Words become a crime. A person questions an officer, asks for a name or shield number, or curses. The arrest that follows is written up as disorderly conduct.
- The standard phrases. The complaint says the person flailed their arms, tensed up, or refused to be handcuffed. The video shows a person face down with both hands behind the back.
- The charge as a bargaining chip. The charges are kept alive through several court dates, then an offer is made: plead to a violation, or accept a dismissal on terms, and it all goes away. The civil claim may go away with it.
- The witness is charged too. A bystander who objects or films is arrested on the same charges, which removes a witness and creates a second defendant.
The claim
A cover charge can support up to four claims under 42 U.S.C. § 1983. Each asks a different question.
False arrest
An arrest without probable cause violates the Fourth Amendment. The obstacle is Devenpeck v. Alford, 543 U.S. 146 (2004): an arrest is lawful if probable cause existed for any offense known to the officer, not only the one announced. So the claim must show that the facts the officer actually knew supported no offense at all. Where the only charges are resisting and obstruction, that is often the argument: there was no lawful arrest to resist. See false arrest.
Malicious prosecution
If the charge was prosecuted and ended without a conviction, there may be a Fourth Amendment malicious prosecution claim. Favorable termination requires only that the prosecution "ended without a conviction"; no affirmative indication of innocence is needed (Thompson v. Clark, 596 U.S. 36 (2022)). And the analysis is charge by charge: probable cause for one charge does not defeat a claim as to a separate baseless charge (Chiaverini v. City of Napoleon, 602 U.S. 556 (2024)). That matters here, because cover charges are usually stacked. See malicious prosecution.
Fabricated evidence
The false account in the complaint is itself a violation. The Second Circuit recognizes a constitutional right not to be deprived of liberty on the basis of evidence fabricated by an officer acting in an investigative capacity (Zahrey v. Coffey, 221 F.3d 342 (2d Cir. 2000)). That claim lies even where probable cause for the arrest existed. In Garnett v. Undercover Officer C0039, 838 F.3d 265 (2d Cir. 2016), the court affirmed a jury's award of nominal damages plus $20,000 in punitive damages against an officer on a fabricated-evidence claim, in a case where probable cause was present. Where a detention after arraignment rests on the false account, the Fourth Amendment continues to govern it (Manuel v. City of Joliet, 580 U.S. 357 (2017)). See fabricated evidence.
Excessive force, and retaliation
The force is judged on its own, under the objective reasonableness test of Graham v. Connor, 490 U.S. 386 (1989). The factors include the severity of the crime, whether the person posed an immediate threat, and whether the person was actively resisting or fleeing. A resisting charge is the officer's assertion on the third factor. It is not proof of it. Reasonableness is judged on the totality of the circumstances, with no cutoff in time (Barnes v. Felix, No. 23-1239, 605 U.S. ___ (2025)). And where the arrest followed something you said, there may be a First Amendment claim; see retaliatory arrest.
The officers who watched
A cover charge usually needs more than one signature. Officers have an affirmative duty to intervene against constitutional violations by other officers in their presence (Anderson v. Branen, 17 F.3d 552 (2d Cir. 1994)). See failure to intervene.
What they will argue
The conviction or the plea
This is the defense that ends cases. Under Heck v. Humphrey, 512 U.S. 477 (1994), a Section 1983 damages claim that would imply the invalidity of a conviction is barred unless the conviction was reversed, expunged, invalidated or called into question by habeas. A conviction for resisting or obstructing the arrest is the one most likely to collide with a false arrest claim, and a plea to a violation to end the case can count as a conviction for this purpose. A malicious prosecution claim needs a prosecution that ended without a conviction, so a plea to any charge in the case needs a careful look before it is entered.
Before the plea, not after
If a charge from the incident is still open, talk to your defense lawyer before you describe the arrest to anyone, and ask that lawyer to speak with a civil rights lawyer before any plea or conditional dismissal. The criminal case and civil case page explains how the two cases affect each other. We coordinate with defense counsel and do not take a statement without them.
Probable cause for something
Under Devenpeck the defense will search the facts for any offense at all. Probable cause is judged on the totality of what the officer knew (District of Columbia v. Wesby, 583 U.S. 48 (2018)). Probable cause also generally defeats a retaliatory arrest claim, with the exception for objective evidence that similarly situated people who had not engaged in the same protected speech were not arrested (Nieves v. Bartlett, 587 U.S. 391 (2019); Gonzalez v. Trevino, 602 U.S. 653 (2024)).
Qualified immunity
The officer will say that even if probable cause was missing, or the force was too much, no clearly established law said so on these facts (Harlow v. Fitzgerald, 457 U.S. 800 (1982)). In Zorn v. Linton, No. 25-297, 607 U.S. ___ (2026), the Supreme Court reversed a denial of qualified immunity to an officer who used a wristlock on a passively resisting protester after warnings. The resisting charge is how the defense places your case near that one. For NYPD officers, the City's 2021 civil rights law provides that qualified immunity is not a defense to its search, seizure and force claims (N.Y.C. Admin. Code § 8-804); see the city law page.
The city did not do it
A city is liable under the federal claim only for its own policy or custom (Monell v. Dep't of Social Servs., 436 U.S. 658 (1978)), and isolated acts by non-policymaking employees are generally not enough to show a custom (Jones v. Town of East Haven, 691 F.3d 72 (2d Cir. 2012)). The state-law claim reaches the employer directly, which is why the notice of claim matters.
What people have recovered
No public figure is published here for cover charges as such. Settlements and verdicts are reported by the injury or the wrongful conviction, not by the charge that was used to explain it, and our ledger of public recoveries has no verified matter described that way. We do not print an amount we cannot source. The public settlements page lists the verified matters by state, and by the numbers gives the public New York City payout data.
Those are other people's cases. What a case is worth depends on the injury, the evidence and the defenses; see what a case is worth.
The clock
The claims start at different times. A federal false arrest claim accrues when you were held under legal process, usually arraignment, not when the criminal case ends (Wallace v. Kato, 549 U.S. 384 (2007)). Fabricated-evidence and malicious prosecution claims accrue when the criminal case ends in your favor (McDonough v. Smith, 588 U.S. 109 (2019)). The state notice periods below run while the criminal case is still open, which is how they are missed. State notice rules do not apply to the federal claim (Felder v. Casey, 487 U.S. 131 (1988)).
| State | Federal Section 1983 claim | State-law claim against a public employer | Authority |
|---|---|---|---|
| New York | Three years | Notice of claim within 90 days; suit within one year and 90 days | Owens v. Okure, 488 U.S. 235 (1989); N.Y. CPLR 214(5); N.Y. Gen. Mun. Law §§ 50-e(1)(a), 50-i(1) |
| New Jersey | Two years, also for the Civil Rights Act claim | Tort Claims Act notice within 90 days; six-month wait; barred after two years. No notice for a Civil Rights Act claim | N.J.S.A. 2A:14-2; 10:6-2; 59:8-8; Owens v. Feigin, 194 N.J. 607 (2008) |
| Florida | Four years | Written claim to the agency within three years; six-month wait; suit within four years | Fla. Stat. §§ 95.11(3), 768.28(6), (14) |
| Pennsylvania | Two years | Written notice to the government unit within six months | 42 Pa.C.S. §§ 5524, 5522(a); Kach v. Hose, 589 F.3d 626 (3d Cir. 2009) |
The notice of claim page covers the New York rule, and the New Jersey, Florida and Pennsylvania pages cover the others.
Excessive force
How force is judged, and why a resisting charge is one factor and not the answer.
Excessive force →Fabricated evidence
When the false account in the paperwork is the violation, even if the arrest was lawful.
Fabricated evidence →Malicious prosecution
A charge with no probable cause that ended without a conviction, judged charge by charge.
Malicious prosecution →Common questions
I was only charged with resisting arrest. Resisting what?
That is the right question, and it is the one the civil case asks. A resisting charge with no underlying offense suggests there was no lawful arrest to resist. But under Devenpeck v. Alford the officer may defend the arrest by pointing to probable cause for any offense known at the time, charged or not. The answer is in the video and the paperwork, compared line by line.
The prosecutor offered a disorderly conduct plea with no jail. Should I take it?
That is a decision for you and your defense lawyer, and it should be made knowing the civil cost. Under Heck v. Humphrey a civil damages claim that would imply a conviction is invalid is barred while the conviction stands, and a plea to a minor offense can have that effect. Ask your defense lawyer to speak with a civil rights lawyer before the plea, not after.
The charges were dropped. Can I sue for the prosecution?
Possibly. After Thompson v. Clark, a Fourth Amendment malicious prosecution claim requires only that the prosecution ended without a conviction. You must still show the charge lacked probable cause, and under Chiaverini v. City of Napoleon that question is asked charge by charge, so a valid charge does not protect a baseless one filed beside it.
Does a resisting charge mean the force was legal?
No. Force is judged separately, under the Fourth Amendment's objective reasonableness test from Graham v. Connor. Whether a person was actively resisting is one factor among several. An officer can have a lawful arrest and still use unlawful force in making it.
Tell us what happened.
One conversation with an attorney, in your language. We tell you which claims the facts support, which deadline runs first for the agency involved, what evidence to preserve this week, and whether a pending criminal case changes the timing. If it is not a case we can take, we say so and tell you where to go.
(718) 484-7510If a criminal charge is still open, talk to your defense lawyer before you describe the arrest to anyone, including us. English, Russian and Spanish in-house; an interpreter for any other language. Contingency fee, confirmed in writing before we begin.