Article 87a: Resistance, Flight, Breach of Arrest, and Escape Under the UCMJ
How serious an Article 87a charge is depends on which restraint was defeated. Breaking an arrest order carries up to a bad-conduct discharge and 6 months; resisting or fleeing apprehension, up to a bad-conduct discharge and 1 year; escaping pretrial confinement, up to a dishonorable discharge and 1 year; escaping confinement imposed by a court-martial sentence, up to a dishonorable discharge and 5 years. And if the restraint itself was illegal, there is no Article 87a offense at all.
The statute and where it came from
10 U.S.C. § 887a reaches any person subject to the UCMJ who “(1) resists apprehension; (2) flees from apprehension; (3) breaks arrest; or (4) escapes from custody or confinement.” Before January 1, 2019 the same section was Article 95; the Military Justice Act of 2016 (Pub. L. 114-328) renumbered § 895 as § 887a, according to the Cornell LII amendment note.
The Manual for Courts-Martial treats the article as five offenses, because escape from custody and escape from confinement have different elements (MCM 2024, Part IV, ¶ 12.b).
Five offenses, five sets of elements
| Offense | Elements (¶ 12.b) |
|---|---|
| Resisting apprehension | A person attempted to apprehend the accused; that person was authorized to do so; the accused actively resisted |
| Flight from apprehension | A person attempted to apprehend the accused; that person was authorized; the accused fled from the apprehension |
| Breaking arrest | A person ordered the accused into arrest; that person was authorized to do so; the accused went beyond the limits of arrest before release by proper authority |
| Escape from custody | A person apprehended the accused; that person was authorized; the accused freed himself or herself from custody before release by proper authority |
| Escape from confinement | A person ordered the accused into confinement; that person was authorized; the accused freed himself or herself before release by proper authority; for the higher penalty, the confinement resulted from a court-martial conviction |
What each kind of restraint means
- Apprehension is “the taking of a person into custody” (¶ 12.c(1)(a), citing R.C.M. 302).
- Arrest is moral restraint: limits fixed by orders, with no physical barrier. It may be pretrial arrest under Article 9 or arrest imposed under Article 15, and Article 87a covers breaking either (¶ 12.c(3)(a), (c)).
- Custody is “restraint of free locomotion imposed by lawful apprehension.” Once a person has submitted or been forcibly taken, it can consist of control exercised in the person’s presence by official acts or orders. It is temporary, lasting until arrest, restriction, or confinement is imposed or the person is released (¶ 12.c(4)(a)).
- Confinement is physical restraint imposed under R.C.M. 305 (pretrial confinement), R.C.M. 1102, or the nonjudicial punishment provisions of Part V of the Manual (¶ 12.c(5)(a)).
The lines the Manual draws
Resistance must be active. The Manual’s example is assaulting the person attempting the apprehension. “Mere words of opposition, argument, or abuse, and attempts to escape from custody after the apprehension is complete, do not constitute the offense of resisting apprehension,” although they may be other offenses (¶ 12.c(1)(c)).
Flight must be active, “such as running or driving away” (¶ 12.c(2)).
A reasonable mistake about authority is a defense; a belief that the apprehension is unjustified is not. “It is a defense that the accused held a reasonable belief that the person attempting to apprehend did not have authority to do so. However, the accused’s belief at the time that no basis exists for the apprehension is not a defense” (¶ 12.c(1)(d)).
Innocence does not excuse breaking arrest. “The reason for the infringement is immaterial,” and innocence of the offense for which the arrest was imposed “is not a defense” (¶ 12.c(3)(d)).
Escape needs no force. It may be “with or without force or artifice, and either with or without the consent of the custodian,” and “lack of effectiveness of the restraint imposed is immaterial.” But a prisoner released by someone with apparent authority to release cannot be convicted of escape (¶ 12.c(5)(c)).
When an escape is complete. It is not complete until the prisoner is “momentarily free from the restraint.” If the attempt is opposed, or immediate pursuit follows before it is complete, there is no escape until the opposition is overcome or the pursuit eluded (¶ 12.c(5)(c)). A failed attempt can still be charged as an attempt under Article 80.
A work detail outside the walls is still confinement. A prisoner escorted outside the facility by a guard who has the duty and the means to prevent escape “remains in confinement” (¶ 12.c(5)(d)).
Legality of the restraint
For every form, an illegal restraint means no Article 87a conviction:
- no conviction for resisting an illegal apprehension, though other offenses such as assault may still be charged (¶ 12.c(1)(e));
- no conviction for breaking an illegal arrest (¶ 12.c(3)(e));
- no conviction for escaping illegal custody or illegal confinement (¶ 12.c(4)(d), (5)(e)).
The Manual also sets how legality is decided. Restraint by a person authorized to impose it is presumed legal “in the absence of evidence to the contrary,” and legality is ordinarily a question of law for the military judge. Whether the person’s status gave authority to apprehend is also a question of law; whether the person had that status is a question of fact for the factfinder (¶ 12.c(1)(b)).
From six months to five years, depending on the restraint
| Offense | Maximum (¶ 12.d) | Offense category (App. 12C) |
|---|---|---|
| Resisting apprehension | Bad-conduct discharge, total forfeitures, 1 year | Category 1 |
| Flight from apprehension | Bad-conduct discharge, total forfeitures, 1 year | Category 1 |
| Breaking arrest | Bad-conduct discharge, total forfeitures, 6 months | Category 1 |
| Escape from custody, pretrial confinement, or confinement under Article 15 | Dishonorable discharge, total forfeitures, 1 year | Category 1 |
| Escape from post-trial confinement | Dishonorable discharge, total forfeitures, 5 years | Category 2 |
The five-year ceiling applies only when the confinement was “imposed pursuant to an adjudged sentence of a court-martial and not as a result of pretrial restraint or nonjudicial punishment” (¶ 12.c(5)(a)). Escaping pretrial confinement carries 1 year. The categories in the table are Appendix 12C assignments; they apply only if all findings of guilty are for offenses committed after December 27, 2023 (Pub. L. 117-81, § 539E(f)).
Related articles
Breaking correctional custody or restriction (lighter forms of restraint) is a separate article, Article 87b. An absence that continues after a breach of arrest may also be charged as absence without leave under Article 86. A prisoner whose punitive discharge has already been executed is not a “member of the armed forces” for desertion or AWOL purposes, and leaving confinement in that situation is charged as escape under Article 87a or under Article 134 (Article 85 explains that rule).
Sources
- 10 U.S.C. § 887a (Article 87a), with the 2016 renumbering note: statute text at Cornell LII
- Manual for Courts-Martial, United States (2024 ed.), Part IV, ¶ 12 (Resistance, flight, breach of arrest, and escape) and ¶ 9.c(4); Appendix 12C (Offense Category Chart)
This article is for informational purposes only and does not constitute legal advice. No attorney-client relationship is created by reading this content. If you are facing charges under the UCMJ or need legal guidance regarding military justice matters, consult a qualified military defense attorney.