Your Right of Defense Against Unlawful Arrest
“Citizens may resist unlawful arrest to the point of taking an arresting officer’s life if necessary.” Plummer v. State, 136 Ind. 306. This premise was upheld by the Supreme Court of the United States in the case: John Bad Elk v. U.S., 177 U.S. 529. The Court stated:
“Where the officer is killed in the course of the disorder which naturally accompanies an attempted arrest that is resisted, the law looks with very different eyes upon the transaction, when the officer had the right to make the arrest, from what it does if the officer had no right. What may be murder in the first case might be nothing more than manslaughter in the other, or the facts might show that no offense had been committed.”
“An arrest made with a defective warrant, or one issued without affidavit, or one that fails to allege a crime is within jurisdiction, and one who is being arrested, may resist arrest and break away. lf the arresting officer is killed by one who is so resisting, the killing will be no more than an involuntary manslaughter.” Housh v. People, 75 111. 491; reaffirmed and quoted in State v. Leach, 7 Conn. 452; State v. Gleason, 32 Kan. 245; Ballard v. State, 43 Ohio 349; State v Rousseau, 241 P. 2d 447; State v. Spaulding, 34 Minn. 3621.
“When a person, being without fault, is in a place where he has a right to be, is violently assaulted, he may, without retreating, repel by force, and if, in the reasonable exercise of his right of self defense, his assailant is killed, he is justified.” Runyan v. State, 57 Ind. 80; Miller v. State, 74 Ind. 1.
“These principles apply as well to an officer attempting to make an arrest, who abuses his authority and transcends the bounds thereof by the use of unnecessary force and violence, as they do to a private individual who unlawfully uses such force and violence.” Jones v. State, 26 Tex. App. I; Beaverts v. State, 4 Tex. App. 1 75; Skidmore v. State, 43 Tex. 93, 903.
“An illegal arrest is an assault and battery. The person so attempted to be restrained of his liberty has the same right to use force in defending himself as he would in repelling any other assault and battery.” (State v. Robinson, 145 ME. 77, 72 ATL. 260).
“Each person has the right to resist an unlawful arrest. In such a case, the person attempting the arrest stands in the position of a wrongdoer and may be resisted by the use of force, as in self- defense.” (State v. Mobley, 240 N.C. 476, 83 S.E. 2d 100).
“One may come to the aid of another being unlawfully arrested, just as he may where one is being assaulted, molested, raped or kidnapped. Thus it is not an offense to liberate one from the unlawful custody of an officer, even though he may have submitted to such custody, without resistance.” (Adams v. State, 121 Ga. 16, 48 S.E. 910).
“Story affirmed the right of self-defense by persons held illegally. In his own writings, he had admitted that ‘a situation could arise in which the checks-and-balances principle ceased to work and the various branches of government concurred in a gross usurpation.’ There would be no usual remedy by changing the law or passing an amendment to the Constitution, should the oppressed party be a minority. Story concluded, ‘If there be any remedy at all … it is a remedy never provided for by human institutions.’ That was the ‘ultimate right of all human beings in extreme cases to resist oppression, and to apply force against ruinous injustice.’” (From Mutiny on the Amistad by Howard Jones, Oxford University Press, 1987, an account of the reading of the decision in the case by Justice Joseph Story of the Supreme Court.
As for grounds for arrest: “The carrying of arms in a quiet, peaceable, and orderly manner, concealed on or about the person, is not a breach of the peace. Nor does such an act of itself, lead to a breach of the peace.” (Wharton’s Criminal and Civil Procedure, 12th Ed., Vol.2: Judy v. Lashley, 5 W. Va. 628, 41 S.E. 197).
You are also within your rights not to answer any questions without a lawyer present, and if possible, to demand a video recording be made of the entire encounter that you or your lawyer keep as evidence, so that federal prosecutors can’t get away with charging you with making false statements to a government investigator and testilying about what you said. See this article.
As a practical matter one should try to avoid relying on the above in an actual confrontation with law enforcement agents, who are likely not to know or care about any of it. Some recent courts have refused to follow these principles, and grand juries, controlled by prosecutors, have refused to indict officers who killed innocent people claiming the subject “resisted” or “looked like he might have a gun”. Once dedicated to “protect and serve”, far too many law enforcement officers have become brutal, lawless occupying military forces.
False arrest — Wikipedia article
The Common-Law Right to Resist, by “ExCop-LawStudent”, May 5, 2013 — Makes some valid criticisms of the above article. He is correct that recent precedents and statutes do not support resistance to unlawful arrest, except where excessive force is used, but we regard those to themselves be unconstitutional, and thus null and void, as a matter of principle. Of course, people need to be aware that constitutional principle is not the practice in courts today, and perhaps be prudent about that.
The Right to Forcefully Resist Unlawful Arrest, John-Henry Hill, September 30, 2013.
The Right to Resist Unlawful Arrest, [No author shown], Natural Resources Journal, Jan. 1967.
When the Right to Resist Becomes the “Duty to Submit”, William N. Grigg, Pro Libertate, January 10, 2012
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Original URL: http://constitution.org/uslaw/defunlaw.htm
Maintained: Jon Roland of the Constitution Society
Original date: 1996/07/10 — Last updated: 2015/1/13
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From the Cop Perspective:
The Right to Resist An Unlawful Arrest
It’s curious that both sides of the political spectrum seem to agree on one point: a person has the constitutional right to resist arrest. This argument surfaced after the Eric Garner grand jury refused to indict NYPD Officer Daniel Pantaleo. He was involved in the so-called choke hold death of Eric Garner. NYPD Police Commissioner Bill Bratton stated that if Eric Garner had submitted to the arrest, he’d still be alive. He went on to say that there is no constitutional right to resist arrest.
This statement led to much discussion in social media. The publication The Blaze cited an Indiana Supreme Court decision (Plummer v. State, 135 Ind 308 34 N.E. 968 (1893)) to support their contention that “citizens may resist unlawful arrest to the point of taking an arresting officer’s life if necessary.” Please note that The Blaze is a right-wing publication. One would tend to think that the likes of Al Sharpton would agree with this.
This argument has been refuted elsewhere, stating that nowhere in the original document did the Supreme Court of Indiana make that claim or use those words. The contention voiced by Commissioner Bratton still seems credible.
In both the Eric Garner and Michael Brown cases, had they simply complied with the orders of the police officer, they’d still be alive. They had it in their minds that that the officer had no right to tell them what to do if they felt it was unlawful for that officer to make that request. The officers both, given their sworn duty to enforce the law, had no choice but to take those persons into custody and overcome any resistance to accomplish that task.
To do so officers are equipped with firearms, tasers, pepper spray, and batons as tools to enable them to arrest a person. But they are also trained in the use of their bodies as weapons or the means of accomplishing a takedown of a non-compliant subject. Such was the case with Officer Pantaleo and his takedown tactic, which her claims he learned in the NYPD Academy.
Those tools and their uses are tempered by endless hours of training in what constitutes probable cause to arrest a person, the laws and their applications, constitutional law and state and US Supreme Court decisions that limit their use of these weapons. Nowhere in any of all that training did an officer ever hear anything about the citizen’s right to resist arrest. I never did in any training courses I attended above and beyond my academy training.
I realize that’s hard to accept in this great country. We all feel we have certain freedoms. It’s hard to imagine that a single officer can deprive you of those freedoms should he deem that you violated the law. Conversely, it’s hard for an officer to take away a person’s freedoms. No officer wants to make an arrest nor do they set out on patrol with the mindset that they’re going to arrest somebody tonight. But it is part of their sworn duties and what we’ve entrusted them to do.
Let’s imagine, though, the kind of country that Al Sharpton or those advocating resisting arrest would have us suffer through. Laws interpreted on the street corner rather than where they should be discussed.
Laws were enacted for the greater common good. We elected legislators to enact those laws, and judges to interpret those laws. We didn’t elect Al Sharpton nor any citizen on the street to do so. An officer is entrusted with enforcing the law, not interpreting it or debating it. The officer observes a violation and he is sworn to act upon it for the public good. Failure to do so properly can result in his termination from the force.
Case law has repeatedly shown that the act of resisting arrest is an act against the state and the wishes of the people who entrusted those decisions to the authorities who enacted them and interpreted them. If everyone took the view that they could resist arrest anytime they disagreed with the law, there would be anarchy.
They have misplaced their distrust of the police and the individual officer to distrust of the laws enacted –a major mistake. In other words, you may have a personal problem with the officer himself, but that does not give you the right to resist his efforts to enforce the law. If you make that problem physical, not only have you attacked the law of the land, but the person of that officer, to which he has a right to defend against. You will be facing, then, additional charges for that confrontation.
As Commissioner Bratton stated, you have a right to redress your grievances concerning an arrest. You can sign Internal Affairs complaints; you can sign criminal complaints, both against the arresting officer. You can fight the charges in court and you can sue for damages for false arrest .What you cannot do is to refuse to submit to arrest by a duly-sworn officer.
The question is not a matter of can I resist arrest, but should I? Obviously, no is the answer. Take the debate along the course set out by legislation and court decision. The street corner was never meant to be that place nor should it be.
Captain Robert Cubby served for 38 years with the Jersey City (NJ) Police Department, now retired. A PTSD survivor, he has been involved in PTSD issues with the CISM team. A prolific author, Captain Cubby focuses on writing about his experiences and solving police problems. He is a National Alliance on Mental Health (NAMI) instructor about police matters and a frequent conference speaker.