

Sarah Smith was driving to work when her car was sideswiped by a man on a motorcycle. Like many people in straitened financial circumstances, she had let her liability insurance lapse. To make matters worse, her driver's license had expired. So she was probably overwrought when Pittsburgh Police Officer Adam Skweres arrived -- and frantic when he pulled her aside. The ensuing conversation left her utterly terrified.



Officer Skweres told Smith that "he could make it look like [the accident] was my fault or he could give the driver a ticket for failure to obey signs," she recently recounted to the Pittsburgh Post-Gazette. The price of a favorable assessment would take the form of unspecified sexual favors, and Skweres quite generously promised that what he would demand of Smith would be "as bad as what would happen to me in jail."



If Smith put up a fight, Skweres insisted, she would be arrested for resisting arrest, handcuffed, and then raped in the back seat of the police car. Before the officer could make good on his threat, the situation changed, and he agreed to let the terrified young woman go -- but only after gesturing to his gun and warning her that "If you say anything about this I'll make sure you never walk, talk, or breathe again."



This incident took place on July 14, 2008. Smith reported the assault to the Pittsburgh Police Bureau, as did two other women who had endured nearly identical threats from Skweres (one of whom, a woman embroiled in a child custody dispute, was told that she could purchase a favorable recommendation to the child welfare bureaucracy in exchange for oral sex). The uniformed predator was allowed to continue patrolling the streets -- and to collect his $57,000 annual salary -- until February 17, when he was arrested for sexually assaulting a young woman in her home six days earlier.



The February 11 assault took place in the home of a young woman whose boyfriend was in jail. After asking the victim if she was wearing a wire, and turning on the kitchen faucet to conceal any potentially incriminating noises, Skweres explained the nature of the transaction: He would "help" her boyfriend in exchange for sex. After forcing the traumatized woman to service him, the cop cleaned himself up with a paper towel (which he folded and placed in his pocket, perhaps after recalling the lessons taught by Monica Lewinsky's blue dress) and left.



Skweres was as predictable as he was persistent. Last December, he had paid a similar visit to Melissa Watkins, whose boyfriend was also in jail. She was alone with her young daughter when the cop materialized to proposition her.



"He locked my front door and everything, he said, `so no one could bother us,'" Watkins told the Post-Gazette. Unzipping his uniform trousers, Skweres offered the same arrangement: He would "help" Watkins' boyfriend in consideration of sexual services. To her considerable credit, Watkins -- despite being utterly terrified -- refused.



"There's a man with a badge and a gun in front of you, trying to proposition you," she recalled. "You don't know which way it's going to go."



In his memoir Breaking Rank: A Top Cop's Expose of the Dark Side of American Policing, former Seattle Police Chief Norm Stamper warns that "sexual predation by police officers happens far more often than people in the business are willing to admit.... My cautious guess is that about 5 percent of America's cops are on the prowl for women. In a department the size of Seattle's that's sixty-three police officers. In San Diego [where Stamper began his police career], 145. In New York City, 2,000. The average patrol cop makes anywhere from ten to twenty unsupervised contacts a shift. If he's on the make, chances are a predatory cop will find you. Or your wife, your partner, your daughter, your sister, your mother, your friend."



The most significant advantage wielded by uniformed predators is not their physical size or even their arsenal; it's their ability to criminalize even the most tentative act of resistance on the part of their potential victims. Recall what Sarah Smith was told during her encounter with Skweres: If she fled, she would be arrested for resisting and obstructing. If she fought back, she most likely would have been charged with aggravated assault.



This is exactly what happened in the case of a single mother in Milwaukee (whose name has not been publicly disclosed) who was raped by Officer Ladmarald Cates when he responded to a 911 call after someone had hurled a brick through the woman's bathroom window. After dismissing the woman's boyfriend on an errand, Cates maneuvered the woman into the bathroom, where he forcibly sodomized and raped her.



Immediately after the assault, the woman -- barefoot and wearing tattered clothing -- ran screaming from the house. Cates stormed out of the house and grabbed the victim by the waist, causing her feet to strike his partner. This gave the officers an excuse to arrest the battered and traumatized woman for “assaulting an officer.”



She was taken to jail and held for 12 hours before receiving medical aid. After the hospital visit, she was sent back to jail for four days before being released without charges.



This was not Cates's first assault -- but the department wasn't willing to take disciplinary action of any kind until DNA evidence corroborated the rape victim's account. Instead of prosecuting Cates, the department fired him for "idling or loafing on duty." He was convicted of federal civil rights charges on January 15. Cates is hardly representative of Milwaukee police officers -- not because of his casual corruption, but because he has actually been punished: The department holds down the number two spot in the national police brutality rankings.



Cates's victim was handcuffed, jailed, and abused even further despite the fact that she had done nothing to resist. If she had put up resistance of any kind during the July 2010 encounter, she would likely be in prison -- or dead -- and Cates probably would have received a commendation for valor. This is because once a sexual predator in uniform initiates force against a Mundane, any effort to repel that aggression is treated as a crime.



This principle, as I've noted before, was expressed by Gregory J. Babbitt, assistant prosecuting attorney for Michigan’s Ottawa County, during the October 4 oral argument before the state supreme court in the case of People v. Moreno. That case deals with the question of whether a citizen has a legally protected right to resist an unlawful search or unjustified arrest by a police officer.



Associate justice Michael Cavanaugh described a scenario in which a woman in police custody is sexually assaulted during a body search. In that situation, Cavanaugh asked Babbitt, could the victim be charged under the State’s "resisting and obstructing" statute?



"Technically, you could do that," Babbitt admitted, hastily adding that "as a prosecutor, I wouldn’t do that." Rather than offering physical resistance and thereby risking both lethal retaliation and criminal prosecution, the victim should simply endure the assault and then file a civil complaint after the fact.



That's what Ladmarald Cates's victim did -- and, as long as resisting arrest is treated as a criminal act, that's the best outcome future victims can expect.



There is another alternative: We can restore legal protection for the right to resist unlawful arrest and other criminal aggression by police officers.



Ideally, police departments as we know them wouldn't exist: "Law enforcement" agencies are innately tyrannical artifacts incompatible with a free society. Where the use of force is concerned, peace officers should have exactly the same legal standing as any other citizen -- in other words, they can employ force (including arrest and detention) for the exclusive purpose of protecting innocent life and private property against criminal aggression.



We should work to abolish the "crime" of resisting arrest. Those who commit actual crimes against persons or property can't really be expected to submit to police without a struggle; people who don't commit such offenses shouldn't be required to submit to police at all.



To that end I offer the following model statute -- which we could call the "Uniformed Sexual Predator Deterrence Act." Although the version below is based on the constitution and laws of the State of Idaho, it can provide a suitable template for similar legislation elsewhere.



Prevailing dogma dictates that all citizens -- including isolated, vulnerable women-- have an unqualified duty to submit to anyone carrying a gun and state-issued credentials -- including sexual predators like Adam Skweres and Ladmarald Cates. The duty to submit includes allowing ourselves to be shackled and incarcerated without just cause, on the assumption that the same State that stole our liberty will agree not to take any more of it when the matter is examined in court. And submission to unlawful police violence too frequently results in injury, sexual assault, and death.





Restoring the Right to Resist Arrest: A Model Statute



An Act



Relating to the restoration of the right of a citizen to resist unlawful arrest, search, and seizure, by amending Title 18, Idaho Code, through deletion of section 18-705 and its replacement by language restoring the common law right to resist unlawful arrest and establishing penalties for unlawful assault by public officials and sentence enhancement following conviction of those who resist arrest in the course of committing crimes against persons and property.



Legislative findings:



Whereas – Article I, section 2 of the Idaho State Constitution decrees: “All political power is inherent in the people.[…] Government is instituted for their equal protection and benefit, and they have the right to alter, reform or abolish the same whenever they may deem it necessary; and no special privileges or immunities shall ever be granted that may not be altered, revoked, or repealed by the legislature” (emphasis added); and



Whereas – The authority delegated by the sovereign people to any government official, including a licensed peace officer, cannot be greater than that of any law-abiding citizen from whom that authorization is derived; and



Whereas – Title 18, Ch. 7, Sec. 18-703 of the Idaho State Code designates the arrest or detention of any individual, or the seizure, levy, or dispossession of any property “without a regular process or other lawful authority,” as a crime; and



Whereas – Title 18, Ch. 7, Sec. 18-706 of the Idaho Code defines a physical assault by a public officer “under color of authority, without lawful necessity” as a crime punishable “by a fine not exceeding $5,000 and imprisonment in the county jail not exceeding one (1) year”; and



Whereas The Idaho Code Judicial Instructions (ICJI 1262) asserts that "it is the person's duty to refrain from using force or any weapon in resisting arrest regardless of whether or not there is a legal basis for the arrest" -- thereby creating a spurious "privilege" or "immunity" liable to revocation by the legislature; and



Whereas – Current state judicial precedent (State v. Lusby, 2008) encourages licensed peace officers to violate those statutes by provoking physical confrontations in the hope of charging citizens with “resisting arrest” in order to circumvent Fourth Amendment restrictions on search and seizure (according to the Idaho Court of Appeals, “although officers may have conducted an unconstitutional search or seizure, a subsequent attack on the officer is a new crime unrelated to any prior illegality”); and



Whereas – The Idaho State Supreme Court, in its 1973 decision State V. Richardson, explicitly acknowledged that “At common law a person unlawfully arrested could resist such an arrest by the use of reasonable force,” then – without legislative direction or other authorization by the sovereign people of the State – decreed that “the trend is, and should be, away from the traditional common law rule, and therefore we hold that if a person has reasonable ground to believe he is being arrested by a peace officer, it is his duty to refrain from using force or any weapon in resisting arrest regardless of whether or not there is a legal basis for the arrest,” thereby illegitimately abrogating what the Court itself acknowledged to be a valid and long-standing individual right; and



Whereas – In its decision in John Bad Elk v. U.S. (1900), the U.S. Supreme Court ruled that a police officer trying to make an unlawful arrest has “no right to unnecessarily injure, much less to kill, his assailant; but 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 such right” – thereby explicitly recognizing a citizen’s right to use lethal force to prevent an unlawful arrest; and



Whereas -- "The right to resist unlawful arrest memorializes one of the principal elements in the heritage of the English revolution: the belief that the will to resist arbitrary authority in a reasonable way is valuable and ought not to be suppressed by the criminal law” (Paul G. Chevigny, The Right to Resist an Unlawful Arrest, 78 Yale L.J. 1128,1129 [1969]);



Therefore, be it enacted by the Legislature of the State of Idaho:



SECTION 1. That Title 18, Chapter 7, sec. 18-705 of the Idaho Criminal Code dealing with “Arrests and Seizures of Persons or Property – Special Officers,” is hereby amended by removing the offense of “Resisting and obstructing officers,” and replacing it with the following:



18-705. Resisting lawful arrest, and the crime of unlawful arrest. Every person who willfully resists, delays or obstructs any licensed peace officer in the course of executing a valid warrant or conducting a lawful arrest (or any citizen seeking to execute a lawful citizen's arrest) will – upon conviction of a property crime or crime of violence – be subject to an additional penalty of up to one year imprisonment in the county jail, and/or a fine not exceeding one thousand dollars ($1,000). These penalties are of secondary effect and cannot be imposed in the absence of a predicate offense against person or property.



SECTION 2. That any individual – whether licensed peace officer or member of the public – who assaults or detains another, or presumes to seize or levy property, without a valid warrant or court order, or legitimate probable cause that a crime against person or property has been or is about to be committed, is guilty of the crime of false arrest, as well as other related offenses, and is liable to appropriate criminal prosecution and civil action.



SECTION 3. Notwithstanding any previous judicial ruling or administrative finding or policy, the right of the individual to resist unlawful arrest will be recognized as a valid defense in all criminal and civil proceedings.



(Note: A version of this model statute was published in an on-line edition of Republic magazine.)

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William Norman Grigg [send him mail] publishes the Pro Libertate blog and hosts the Pro Libertate radio program.



Copyright © 2012 William Norman Grigg







