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The Right to Forcefully Resist Unlawful Arrest

by John-Henry Hill, M.D., Ph.D.

September 30, 2013

JohnHenryHill@Yahoo.com

Definition of LIBERTY:

Liberty. 1. Exemption from slavery, bondage, imprisonment, or control of another. 2. Freedom from external restraint or compulsion (Webster”s New Collegiate Dictionary).

Liberty. Freedom; exemption from extraneous control. The power of the will to follow the dictates of its unrestricted choice, and to direct the external acts of the individual without restraint, coercion, or control from other persons. (Black”s Law Dictionary – 3rd Edition)

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Beginning with the Magna Carta, the governments in Britain and later the United States of America have recognized the right of the people to forcefully resist unlawful arrest by the government agents (including police), using deadly force if necessary. It was long recognized as a Natural and Common Law right of not only the person being arrested, but also of one’s fellow countrymen trying to assist him in resisting such an unlawful arrest. (Common Law supersedes statutory law – which is “private law” – unless an individual knowingly and freely consents to waive his natural “unalienable” and Common Law rights and consents to submit to statutory or contractual policy. I say “statutory policy” because, strictly speaking, “LAW” refers only to the public Common Law, whereas legislative acts (as statutes, acts, codes, regulations, ordinances, etc.) are “private law” whose jurisdiction is extremely limited. (One might draw the analogy of a man who joins a private club or buys a house in a neighborhood controlled by a private homeowners’ association. The club or association has the right to determine the rules for its members, along with the penalties for breaking those rules. Strictly speaking, these rules (often called “by-laws” are NOT true “law”; they are so-called “private law” — that is, the rules or policies apply ONLY to members of this private group. The man is not forced to join the club or association; he does so through his voluntary consent in a contract, in which commercial law applies. He pays his “dues” in exchange for being a member of the club/association, with its attendant duties-obligations and benefits-privileges – thus “consideration” is exchanged. As a member, the man has consented to the jurisdiction of the club/association in club/association-related matters only. A non-member who is not inside the club/association’s buildings, on its land or attending some private event staged by the club/association, is NOT bound by the rules or policies of the club/association. However, should a non-member voluntarily consent to abide by the club-association’s rules/policies in exchange for being allowed inside the club-association’s building along with other benefits and privileges, that non-member has therein contracted with the club-association and is under its jurisdiction regarding rules/policies of conduct – at least as long as he remains within the club-association’s building and/or is enjoying some other benefits and privileges normally associated with membership in that club-association. Such rules and policies created under a private contract are known as “private law” – in this case, “commercial law” (as well as “contract law” ) which evolved from “merchant law” or the “law of the seas”. (The “mer” in the word merchant is derived from the Phoenecian/Caananite-Latin-French word of “mer” or sea.) In short, “law” refers to public Common Law – the “law of the land”. “Commercial law” (contract law, equity law, merchant law, maritime law, statutes and acts, the “law of the seas”, and more recently Uniform Commercial Code – UCC) is “private law” created through voluntary contracts. As such, “commercial law” is, in fact, NOT law at all, but private policy (rules of conduct) applicable only to the parties to that contract. In Britain and America the primary law remains Common Law. “Commercial or statutory law” is inferior to Common Law and no man is subject to “commercial-statutory law” jurisdiction UNLESS he contracts into it (as did our man above who join voluntarily contracted to be club-association member) or he, as a non-member, voluntarily accepts some of the benefits and privileges of membership in exchange for agreeing to its rules and obligations (as did our non-member guest above). This non-member example still falls under private “commercial law”, since the agreement between the non-member and the club also constituted a contract in which consideration was exchanged. The primary point is that, in Britain and America, Common Law supercedes “commercial-contract law” or “statutory law”, unless that man voluntarily waives his rights under Common Law and places himself under the jurisdiction of private “commercial law” or “statutory law” — that is, POLICIES established by legislative statutes, acts, codes, regulations, ordinances, etc.

Around 1670 in Britain, the Queen’s Bench ruled that forceful resistance to unlawful arrest by police was a right of the people. (the Hopkin Huggett’s Case) Huggett and his friends had come to the aid of a man who had been arrested by a constable named Berry. Huggett demanded to see the arrest warrant. When Berry produced a clearly spurious document, Huggett drew his sword and demanded the prisoner’s release. Berry refused, and finished second in the ensuing swordfight. The wrongfully arrested man in that case (who was threatened with impressment into the military) did nothing to resist his abduction. It wasn’t clear that Huggett knew the man, or had even met him prior to the incident. Yet the Queen’s Bench ruled that Huggett’s actions were justified, since a situation in which a “man [is] unduly arrested or restrained of his liberty … is a provocation to all other men of England, not only his friends but strangers also[,] for common humanity’s sake.”

In 1710. the Queen’s Bench ruling re-confirmed the common law right to forcefully resist an unlawful arrest. Queen v. Tooley (1710). Anne Dekins was quietly walking down the street when Police Officer Samuel Bray saw her on the street and began to haul her away. Apparently Dekins had a used rather forceful language in past encounters with Officer Bray. Dekins forcefully resisted and screamed for help, resulting in the intervention of a group of men who witnessed the entire incident, led by a man named Tooley. They confronted Bray and demanded to know what he was doing to the woman. The Officer Bray produced his official credentials and insisted that he was making a lawful arrest for “disorderly conduct.” When witnesses disputed that description, Bray called for backup.

Tooley and his associates ordered Bray to release the woman, and then took action to enforce that lawful order. After Bray’s partner was killed in the ensuing struggle, Tooley and his associates were arrested for murder. The trial court threw out the murder charge, ruling that the warrant was defective. Since the arrest was unlawful, the court pointed out, Dekins had a right to resist – and bystanders likewise had a right, if not a positive duty, to assist her. The defendants were eventually found guilty of manslaughter by jury trial, but quickly freed by the court.

The court ruled that, in trying to enforce an invalid warrant, Bray “did not act as a constable, but a common oppressor”. Tooley and the other bystanders were properly “provoked” by the act of aggressive violence against Anne Dekins, and their forceful but measured response – first demanding that the abductor release the hostage, then exercising defensive force to free her – was entirely appropriate. Lawless violence against the helpless, the Court continued, “is a sufficient provocation to all people out of compassion” in any circumstance, “much more where it is done under a colour of justice, and where the liberty of the subject is invaded….” Such an act carried out by a law enforcement official is nothing less than “a provocation to all the subjects of England.” Every Englishman “ought to be concerned for Magna Charta and the laws. And if any one against the law imprison a man, he is an offender against Magna Charta.”

The Hopkin Huggett’s Case and Queen v. Tooley confirmed the long-recognized Common Law right to resist unlawful arrest (as judged by the people; not the government agents); and this right applies not only to the person being arrested, but also to other people who intervene on the victim’s behalf. Simply put: When a police officer commits the crime of unlawful arrest, the citizens who intervene are acting as peace officers entitled to employ any necessary means – including lethal force – to liberate the victim. As Algernon Sidney wrote”the violence of a wicked magistrate who, hav[ing] armed a crew of lewd villains would otherwise inflict his will on innocent and helpless people with impunity”.

This same Common Law right still exists in America today. Until 1942, when the Interstate Commission on Crime published the Uniform Arrest Act, every state recognized and protected the right to resist. The first major case regarding the right to forcefully resist unlawful arrest was decided by the Supreme Court of Indiana in 1893. In Plummer v. State, 135 Ind. 308, 34 N.E. 968 (1893) the defendant Plummer was convicted in trial court of manslaughter of a police officer. The Supreme Court of Indiana ruled that, by the judge not giving adequate instructions to the jury regarding self-defense and the alternatives of conviction on a lesser charge or even acquittal, the trial court erred; and Plummer’s manslaughter conviction was reversed. The Supreme Court of Indiana stated that, although the police officer may or may not have held the authority to make a lawful, warrantless arrest of Plummer for a misdemeanor not witnessed by the police officer, for purposes of argument in reaching a decision the court would assume the worst-case scenario possible for this defendant – that is, that the police officer had the lawful authority to make the arrest. The court then stated that a police officer, in effecting an arrest, is allowed to use force, but only that force which is necessary. The defendant Plummer had not resisted or behaved violently, as he had not even been told by the police officer that he was under arrest. Plummer had merely walked toward his home with a revolver in his hand and told the officer to keep away. Since the police officer (specifically, the marshal of the town) shot a pistol and then struck the defendant Plummer a with a nightstick before even telling Plummer he was under arrest, the police officer had committed a battery by the use of excessive force. Pistols shots were exchanged resulting in the death of the police officer. Plummer was indicted and convicted of manslaughter. The Supreme Court of Indiana concluded that defendant Plummer had “a clear right to defend himself, even to taking the life of his assailant.”

To fully understand the implications and precedent established by the Plummer case, it is vital to understand the assumptions on which the court was operating. Both British and American courts had long ago confirmed the right under Common Law of a man to forcefully resist an unlawful arrest AND to resist such as arrest with all the violence needed (matching violence for violence) to secure his freedom – even to the extreme of killing the arresting officer. Four possible scenarios exist during an arrest:

1.) The arrest is lawful and no excessive force is used by the officer; (worst-case scenario for a defense)

2.) The arrest is lawful and excessive force is used by the officer.

3.) The arrest is unlawful and no excessive force is used by the officer;

4.) The arrest is unlawful and excessive force is used by officer. (best-case scenario for a defense)

The assumption of the court was to review each of these scenarios. As illustrated by the order of the scenarios above, of greatest importance is the fact that under Common Law, unlawful arrest carried far more weight in terms of an affirmative defense than did the use of excessive police by the police. Under Common Law a defendant clearly has the least defense if worst-case defense scenario #1 is true, i.e., the arrest is lawful and no excessive force is used by the officer. Also under Common Law a defendant has an absolute affirmative defense if best-case defense scenario #4 is true, i.e., the arrest is unlawful and excessive force is used by officer. The court reasoned that since scenario #3 provided a stronger defense than scenario #2 , if scenario #2 provided a defense for the defendant Plummer, then the stronger defense offered in scenario #3 (which included the “unlawful arrest” component) need not even be considered by the court. Again, the component of “unlawful arrest” carried far greater weight than “excessive police force” in a defense under Common Law. The court’s ruling in Plummer that the defendant was justified in his actions under scenario #2 (arrest is lawful and excessive force is used by the officer) meant that the much stronger defense offered by scenario #3 need not even be considered. In short, since Plummer was justified in resisting arrest if excessive police force was used in a lawful arrest (scenario #3), then Plummer would have even greater justification in resisting arrest if NO excessive police force was used during an unlawful arrest (scenario #3). By implication, defendant Plummer would possess the strongest justification for forcefully resisting arrest under scenario #4 in which excessive police force is used in an unlawful arrest. It is this distinction that modern courts have misunderstood or ignored: that the most important factor under Common Law for the right to forcefully resist arrest is whether the arrest was lawful or unlawful – NOT whether or not the police used excessive force! “Citizens may resist unlawful arrest to the point of taking an arresting officer’s life if necessary.” (Plummer v. State, 135 Ind. 308, 34 N.E. 968 (1893). — the Supreme Court of Indiana).

In 1900 the Supreme Court of the United Stats mirrored and affirmed the earlier 1893 Plummer v. State ruling by the Supreme Court of Indiana. Under the still-controlling U.S. Supreme Court precedent, John Bad Elk vs. U.S,. 177 U.S. 529, 44 L.Ed. 874, 20 S.Ct. 729, (1900) and subsequent court decisions, a man faced with the prospect of unlawful arrest – that is, an armed abduction – has a lawful right to use any appropriate means, including lethal force, to defend himself. Further, other people witnessing an unlawful arrest possess the same Common Law right to prevent such an arrest, using lethal force if necessary – even if the Plummer v. State man being arrested has not contested or resisted his own arrest. The Bad Elk case was unusual in that the killing occurred on Indian tribal land (the Pine Ridge Indian reservation, in South Dakota) and involved two members of that tribe, both of whom were tribal police officers. The defendant had killed a man and was convicted in a jury trial of first-degree murder. Despite the fact that tribal lands and tribe members fall under “federal zone” jurisdiction similar to U.S. territories where, strictly speaking, the protections of the Constitution do NOT apply, these issues were avoided. Similarly, the issues of each Indian man as a “sovereign’ and the Indian tribes as “sovereign nations” was also avoided. Instead, the case ultimately was decided based on the trial judge’s faulty jury instructions regarding the jury’s option of conviction for a lesser charge, based on the Common Law rights to self-defense and to resist an unlawful arrest. 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 [to make the arrest, i.e., an unlawful arrest]. 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.” As in Plummer, the Supreme Court in Bad Elk emphasized that the most important factor under Common Law for the right to forcefully resist arrest is whether the arrest was lawful or unlawful – NOT whether or not the police used excessive force!

Subsequent court decisions gradually whittled away at the Common Law right to forcefully resist an unlawful arrest; citing the Plummer and Bad Elk cases but with emphasis on the police officer’s use of excessive force as the factor allowing resistance, instead of the unlawful nature of the arrest. Wilson v State , 842 N.E.2d at 447 (citing Fields v. State, 382 N.E.2d 972, 976 (Ind. Ct. App. 1978); WHARTON’S at § 126. The Wilson court in particular noted that a person may not resist an unlawful arrest where the officer does not use unlawful force. Other cases citing Plummer likewise noted that while a person may defend himself against an officer’s unlawful use of force, they may not resist an unlawful arrest being made peaceably and without excessive force; in affect, turning these Common Law rights on their heads. In recent years the court decisions have “bounced around” on the issues of “the use of excessive force during an arrest” versus “the unlawfulness of an arrest” as the primary justification for forcefully resisting arrest; and in so doing, these courts appear to have shunted aside the Common Law rights and substituted statutory “privileges”. (See the NOTES below for these cases.) By 1995, citing Plummer the Seventh Circuit Court of Appeals clearly attempted to transmute these Common Law rights into “privileges” granted by the state. That court the privilege exists “not because its use is necessary to protect him from an unlawful arrest, but because it is the only way in which he can protect himself from death or serious bodily harm.” Gibbons v. Higgins, 73 F.3d 364 (7th Cir. 1995) (unpublished decision).

Until the late 1960s, most states recognized – albeit grudgingly – the Common Law right to resist arrest. By 1969, that right had been transmuted – not by statute or Constitutional amendment, but through judicial activism – into a revocable “privilege” – one that had to be dispensed with to serve the interests of the police and the state in securing convictions. The Alaska State Supreme Court (Terry Glenn Miller v. State of Alaska) was one of the first states to suppress this right, stating, “It is argued that if a peace officer is making an illegal arrest but is not using force” – something that could not occur, given that an arrest, by strict definition, an act of armed coercion – “the remedy of the citizen should be that of suing the officer for false arrest, not resistance with force.” Illogically, that same ruling also stated, “The weight of authoritative precedent supports a right to repel an unlawful arrest with force…. This was the rule at common law. It was based on the proposition that everyone should be privileged to use reasonable force to prevent an unlawful invasion of his physical integrity and personal liberty.” In short, the court ruled that people have a long-recognized common law right to resist, but they cannot exercise that right.

A few years later the Idaho State Supreme Court also attempted to nullify the right to resist. (Richardson v. Idaho) John Richardson was convicted of resisting arrest through violence and sentenced to five years in prison. Richardson and his ex-wife, who were having dinner in a restaurant, got into an argument, and were asked to leave when the latter became loud and profane. Two off-duty, uniformed police officers escorted them outside, and then tried to arrest Richardson for “disorderly conduct” after he became annoyed by their unwarranted intrusion. Richardson kicked one of the police officers, then grabbed one of their pistols, which he fired into the air, rather than at his assailants (as he was entitled to, both morally and – under the Supreme Court’s still-valid 1900 Bad Elk precedent – legally).

Citing the Miller decision in Alaska, the Idaho Supreme Court stated “More than one state has, without legislative action, modified the traditional common law rule and has adopted the rule that a private citizen may not use force to resist a peaceful arrest,” – despite the fact that any arrest entails the use of force. “We are of the opinion 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.” The Idaho Supreme Court in a 2008 ruling (State of Idaho v. Lusby) again eviscerated the right to resist even an illegal invasion and search of one’s home by police officers. The trial court had ruled the evidence from the illegal search to be inadmissible and had dismissed all charges against Lusby. But, in a bizarre twisting of logic, the Idaho State Supreme Court, while admitting that the search was illegal, insisted that Lusby’s resistance to the illegal invasion of her home retroactively legalized the unconstitutional search. Therefore, without any enabling legislation, contrary to the still-controlling U.S. Supreme Court precedent (John Bad Elk vs. U.S.), and contrary to hundreds of years of common law, the Idaho State Supreme Court created out of thin air a “Duty to Submit to Arrest” – a police officer’s privilege to commit criminal acts for the purpose of nullifying the Exclusionary Rule – something the Idaho Supreme Court acknowledged. In short this court said that any police officer can nullify the Fourth Amendment anytime he pleases, simply by claiming that the victim committed the supposed crime of resisting.

According to centuries of common law and the still-controlling U.S. Supreme Court precedent of John Bad Elk, the American people today still possess the right to resist unlawful arrest by government agents, Paul Chevigny in a 1969 Yale Law Journal essay made the critical distinction between “power” and “authority”: that while a police officer may have the physical power to abduct or abuse an innocent person, citizens have a lawful authority to prevent that crime. “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,” However, it must be said that the courts themselves, in emphasizing privileges granted under statutes over Common Law rights, have placed a potential arrestee in a less-than-favorable position in relation to the police – especially compared to Common Law rights affirmed in the Tooly-Dekins and Hopkin Huggett cases of three or more centuries ago. In America we see to be moving “backwards” with regard to rights and freedoms. That this ancient right to forcefully resist state-licensed criminal violence during unlawful arrest by government agents – as determined by the man being arrested and his neighbors witnessing the arrest – is ignored and suppressed by prosecutors and the lower courts does not extinguish that right.

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NOTES:

“Citizens may resist unlawful arrest to the point of taking an arresting officer’s life if necessary.” Plummer v. State, 135 Ind. 308, 34 N.E. 968 (1893) — Supreme Court of Indiana. This premise was upheld by the Supreme Court of the United States in the case: John Bad Elk vs. U.S,. 177 U.S. 529, 44 L.Ed. 874, 20 S.Ct. 729, (1900) 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.” [Note that the John Bad Elk v U.S. decision remains the controlling precedent to this day, although many judges, prosecutors and even juries ignore it.]

“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 [police officer or other government agent] 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)

“Common as the event may be, it is a serious thing to arrest a citizen, and it is a more serious thing to search his person; and he who accomplishes it, must do so in conformity to the law of the land. There are two reasons for this; one to avoid bloodshed, and the other to preserve the liberty of the citizen. Obedience to the law is the bond of society, and the officers set to enforce the law are not exempt from its mandates.” Town of Blacksburg v. Bean 104 S.C. 146. 88 S.E. 441 (1916): Allen v. State, 197 N.W. 808, 810-11 (Wis 1924)

“Where officers do not conform to the ‘law of the land’ [Common Law] they have no authority and the right to resist them exists. A Public Officer, as with a citizen, who unlawfully threatens life or liberty, is susceptible to be injured or killed; for by such acts ‘they draw their own blood upon themselves’ As stated in some cases, ‘where a peace officer has no right to make an arrest without warrant he is a trespasser and acts at his own peril.” 6A CJS (Corpus Juris Secundum), “Arrest” Section 16 page 30; A sheriff who “acts without process,” or “under a process void on its face, in doing such act, he is not to be considered an officer but a personal trespasser.” Roberts v. Dean, 187 So. 571, 575 (Fla. 1939)

[The reader should note that the CJS confirms that the “law of the land” (i.e., Common Law) is the standard by which an officer and potential arrestee are to be judged – NOT statutory law. The natural right under Common Law to self-defense against unlawful arrest is NOT subject to limitations or restrictions imposed by legislative statutes or acts – unless that man voluntarily agrees to waive his rights in Common Law jurisdiction and freely subjects himself to jurisdiction under such statutes. Note that almost every court decision refers to the right of self-defense against an “unlawful” arrest, rather than an “illegal” arrest. In these courts decisions, the term “unlawful” means contrary to Common Law only. Conversely, the terms “illegal” and “legal” encompass only legislative acts/statutes, as the word LEGal is derived from LEGislative. Formerly in America arrests were usually carried out by “peace officers” such as sheriffs, who were duty-bound by Common Law to enforce the peace. As commercial law (e.g., statutory law, UCC-based acts/statutes and codes) began to subsume Common Law, “peace officers” were replaced by “police officers” (“policy officers”), appropriately named because they enforce private POLICY created by legislative ACTS (statutes) rather than the public LAW (i.e., Common Law).]

“A person has a lawful right to resist an arrest by an unlawful authority, i.e., an officer without a valid warrant.” Franklin, 118 Ga. 860, 45 S.E. 698 (1903)

“What of the resistance to the arrest? The authorities are in agreement that since the right of personal property is one of the fundamental rights guaranteed by the Constitution, any unlawful interference with it may be resisted and every person has a right to resist an unlawful arrest. * * * and, in preventing such illegal restraint of his liberty, he may use such force as may be necessary.” City of Columbus v. Holmes, 152 N.W. 2d, 301, 306 (Ohio App. 1058)

“It is the law of self defense and self preservation that is applicable. “One has an “unalienable” right to protect his life, liberty or property from unlawful attack or harm.” “* * * 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 163, 48 S.E. 910 (1904)

“An illegal arrest is an assault and battery. The person so attempted to be restrained of his liberty has the same right, and only 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, 2nd.260, 262 (1950)

“A citizen illegally arrested “cannot initiate the use of force” and neither do “words alone justify an assault.” However, “when the officer initiates the assault by physical contact, which is usually the case, and there is an unlawful arrest, the citizen has the right to protect his liberty to the extent of killing the officer.” See Green v. Kennedy, 48 N.Y. Rep. 653, 654 (1871) and/or Hicks v. Matthews, 266 S.W. 2nd. 846, 849 (Tex. 1954)

“What rights then has a citizen in resisting an unlawful arrest? An arrest without warrant is a trespass, an unlawful assault upon the person, and how far one thus unlawfully assaulted may go in resistance is to be determined as in other cases of assault. Life and liberty are regarded as standing substantially on one foundation; life being useless without liberty, and the authorities are uninformed that where one is about to be unlawfully deprived of his liberty he may resist the aggressions of the officer, to the extent of taking the life of the assailant, if that be necessity to preserve his own life, or prevent infliction upon him of some great bodily harm.” State v. Gum, 68 W. Va. 105, 69 S.E. 463, 464 (1910)

“It is the law that a person illegally arrested by an officer may resist that arrest, even to the extent of the taking of life if his own life or any great bodily harm is threatened.” State v. Rousseau, 40 Wash. 2nd, 92, 241 P. 2nd. 447, 449 (1952); Porter v. State, 124 Ga. 297, 52 S.E. 283, 287 (1905); see also State v. Mobley, 240 N.C. 476, 83 S.E. 2nd 100, 102 (1954); Wilkinson v. State, 143 Miss. 324, 108 So. 711, 712-13 (1926); American Jurisprudence, 2nd Ed., “Arrest”, Section 94, pp. 778-780; Thomas v. State, 91 Ga. 204, 18 S.E. 305 (1892); Presley v. State, 75 Fla. 434, 78 So. 532, 534 (1918); Burkhard v. State, 83 Tex. Crim. 228, 202 S.W. 513; Mullins v. State, 196 Ga. 569, 27 S.E. 2nd. 91 (1943); Ownes v. State, 58 Tex. Crim. 261, 125 S.W. 405 (1910); Caperton v. Commonwealth, 189 Ky. 652, 655, 225 S.W. 481, 481 (1920)

In the Texas Penal Code, Sec. 9.31 (C):

Sec. 9.31 (C) The use of force to resist arrest or search is justified:

(1) If, before the actor offers any resistance, the peace officer (or person acting at his direction) uses or attempts to use greater force than necessary to make the arrest; and

(2) when and to the degree the actor reasonably believes the force is immediately necessary to protect himself against the peace officer”s (or other person”s) use or attempted use of greater force than necessary.

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.S. Supreme Court ruling in 1900

JOHN BAD ELK, , v. UNITED STATES.

177 U.S. 529 (20 S.Ct. 729, 44 L.Ed. 874)

JOHN BAD ELK, Plff. in Err., v. UNITED STATES.

No. 350.

Decided: April 30, 1900.

The right to forcefully resist an unlawful arrest by government agents (police)

• opinion, Peckham [HTML]

Messrs. Thos. B. McMartin and S. B. Van Buskirk for plaintiff in error.

Assistant Attorney General Boyd for defendant in error.

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Mr. Justice Peckham delivered the opinion of the court:

The plaintiff in error was convicted in April, 1899, in the circuit court of the United States, in South Dakota, of the murder on March 13, 1899, of John Kills Back at the Pine Ridge Indian reservation, in South Dakota, and sentenced to be hanged. The case is brought here on writ of error to the circuit court.

Both the deceased and the plaintiff in error were Indians and policemen, residing on the reservation at the time of the killing.

Upon the trial it appeared that the plaintiff in error, on March 8, 1899, while out of doors, fired a couple of shots from his gun at or near the place where he resided. Soon after the firing, one Captain Gleason, who stated that he was what is called an ‘additional farmer’ on the same reservation, having heard the shots, and meeting the plaintiff in error, asked him if he had done that shooting, and he said that he had; that ‘he had shot into the air for fun;’ to which Gleason responded by saying to him, ‘Come around to the office in a little while, and we will talk the matter over.’ Thereupon they separated. As he did not come to the office, Gleason, after waiting several days, gave verbal orders to three of the Indian policemen to go and arrest plaintiff in error at his mother’s house near by and take him to the agency, some 25 miles distant. No reason for making the arrest was given, nor any charge made against him. The policemen, one of whom was the deceased, went to the house where the plaintiff in error was stopping, and came back and reported to Gleason that he was not there, and they were then ordered to return and wait for him and to arrest him. They returned to the house, but came back again and reported that the plaintiff in error said that he would go with them to the agency in the morning; that it was too late to go with them that night. Gleason then told them to watch him and see that he did not go away, and in the morning to take him to the Pine Ridge agency.

The policemen then again went back to the house where plaintiff in error was staying and met him coming towards his mother’s place. He went into the house, and one of their number followed him; found him smoking, and told him that they had come to take him to the agency at Pine Ridge. Plaintiff in error refused to go, and the policeman went outside. Another of them then went into the house, and in a few minutes both he and the plaintiff in error came out, and the latter saddled his horse and went over to the house of a friend, and they followed him. It was getting dark when he came back to his mother’s house, still followed by them, and while following the plaintiff in error to his house on this last occasion they were joined by others, so that when he went into the house there were four or five men standing about it. In a short time the plaintiff in error came out, and asked of those outside, ‘What are you here bothering me for?’ The deceased said: ‘Cousin, you are a policeman, and know what the rules and orders are.’ To which plaintiff in error replied: ‘Yes; I know what the rules and orders are, but I told you I would go with you to Pine Ridge in the morning.’ Then, according to the evidence for the prosecution, the plaintiff in error, without further provocation, shot the deceased, who died within a few minutes.

The policemen had their arms with them when they went up to where the plaintiff in error was at the time the shooting was done.

This is substantially the case made by the prosecution.

There is an entire absence of any evidence of a complaint having been made before any magistrate or officer charging an offense against the plaintiff in error, and there is no proof that he had been guilty of any criminal offense, or that he had even violated any rule or regulation for the government of the Indians on the reservation, or that any warrant had been issued for his arrest. On the contrary, Gleason swears that his orders to arrest plaintiff in error were not in writing, but given orally. Indeed, it does not appear that Gleason had any authority even to entertain a complaint or to issue a warrant in any event.

The plaintiff in error testified in his own behalf, and said that during the day he had been looking after the schools along the creek near the station; that that was his duty as a policeman; that he arrived at his mother’s house about half past four in the afternoon, and soon afterwards an Indian named High Eagle came into the house, staid a minute or two, but did not speak, then went out doors, and Lone Bear came in, and said that he was directed to take the plaintiff in error to Pine Ridge to Major Clapp. To which the plaintiff replied: ‘All right, but my horse is used up, and I shall have to go to my brother’s, Harrison White Thunder’s, and get another horse.’ Lone Bear said all right. Then the plaintiff in error started for his brother’s, and when he got there found that the horses were out on the range, and when they came in his brother promised to bring one of them down to him. In this he was corroborated by his brother, who testified that he brought the horse over about dark. On his way back to his mother’s the plaintiff in error stopped at a friend’s and got a Winchester rifle for the purpose, as he said, of shooting prairie chickens. When he went back to his mother’s he was there but a short time when the deceased and two or three others came to his house to arrest him, and the plaintiff in error went out, and according to his testimony the following was what occurred: ‘I asked John Kills Back and High Eagle what they were there bothering me all the while for. John Kills Back said: ‘You are a policeman, and know what the rules are.’ I said: ‘Yes, I know what the rules are, but I told you that I would go to Pine Ridge agency in the morning.’ Then the deceased moved a little forward, and put his hand around as if to reach for his gun. I saw the gun and shot; then I shot twice more, and John Kills Back and High Eagle ran off. John Kills Back fell after he had gone a short distance. I shot because I knew that they (John Kills Back and High Eagle) would shoot me. I saw their revolvers at the time I shot.’ This was in substance all the evidence.

Counsel for plaintiff in error asked the court to charge as follows:

‘From the evidence as it appears in this action, none of the policemen who sought to arrest the defendant in this action prior to the killing of the deceased, John Kills Back, were justified in arresting the defendant, and he had a right to use such force as a reasonably prudent person might do in resisting such arrest by them.’

The court denied the request and counsel excepted.

The court charged the jury, among other things, as follows:

‘The deceased, John Kills Back, had been ordered to arrest the defendant; hence he had a right to go and make the attempt to arrest the defendant. The defendant had no right to resist him. It is claimed on the part of the defendant that he made no resistance, and he was willing to go with the officer in the morning. I charge you, of course, that the officer, John Kills Back, had a right to determine for himself when this man should go to the agency with him.

* * * * * ‘In this connection I desire to say to you, gentlemen of the jury, that the deceased, being an officer of the law, had a right to be armed, and for the purpose of arresting the defendant he would have had the right to show his revolver. He would have had the right to use only so much force as was necessary to take his prisoner, and the fact that he was using no more force than was necessary to take his prisoner would not be sufficient justification for the defendant to shoot him and kill him. The defendant would only be justified in killing the deceased when you should find that the circumstances showed that the deceased had so far forgotten his duties as an officer, and had gone beyoud the force necessary to arrest defendant, and was about to kill him or to inflict great bodily injury upon him, which was not necessary for the purpose of making the arrest.’

This charge was duly excepted to.

We think the court clearly erred in charging that the policemen had the right to arrest the plaintiff in error, and to use such force as was necessary to accomplish the arrest, and that the plaintiff in error had no right to resist it.

The evidence as to the facts immediately preceding the killing was contradictory; the prosecution showing a killing when no active effort was at that very moment made to arrest, and the defendant showing an intended arrest and a determination to take him at that time at all events, and a move made by the deceased towards him with his pistol in sight, and a seeming intention to use it against the defendant for the purpose of overcoming all resistance. Under these circumstances the error of the charge was material and prejudicial.

At common law, if a party resisted arrest by an officer without warrant and who had no right to arrest him, and if in the course of that resistance the officer was killed, the offense of the party resisting arrest would be reduced from what would have been murder if the officer had had the right to arrest, to manslaughter. What would be murder if the officer had the right to arrest might be reduced to manslaughter by the very fact that he had no such right. So an officer, at common law, was not authorized to make an arrest without a warrant, for a mere misdemeanor not committed in his presence. 1 Arch. Crim. Pr. & Pl. 7th Am. ed. 103, note (1); also page 861 and following pages; 2 Hawk. P. C. 129, § 8; 3 Russell on Crimes, 6th ed. 83, 84, 97; 1 Chitty’s Crim. L.* p 15; 1 East, P. C. chap. 5, p. 328; Derecourt v. Corbishley, 5 El. & Bl. 188; Fox v. Gaunt, 3 Barn & Ad. 798; Reg. v. Chapman, 12 Cox C. C. 4; Rafferty v. People, 69 Ill. 111, 18 Am. Rep. 601; S. C. on a subsequent writ, 72 Ill. 37. If the officer had no right to arrest, the other party might resist the illegal attempt to arrest him, using no more force than was absolutely necessary to repel the assault constituting the attempt to arrest. 1 East, supra.

We do not find any statute of the United States or of the state of South Dakota giving any right to these men to arrest an individual without a warrant, on a charge of misdemeanor not committed in their presence. Marshals and their deputies have in each state, by virtue of § 788, Revised Statutes of the United States, the same powers in executing the laws of the United States as sheriffs and their deputies in such state may have by law in executing the laws thereof. This certainly does not give any power to an officer at the Pine Ridge agency to arrest a person without warrant, even though charged with the commission of a misdemeanor. These policemen were not marshals nor deputies of marshals, and the statutes have no application to them.

By § 1014 of the Revised Statutes, the officers of the United States named therein and certain state officers may, agreeably to the usual mode of process against offenders in such state, order the arrest of an offender for any crime or offense committed against the United States. This section has no application.

Referring to the laws of South Dakota, we find no authority for making such an arrest without warrant. The law upon the subject of arrests in that state is contained in the Compiled Laws of South Dakota 1887, § 7139, and the following sections, and it will be seen that the common law is therein substantially enacted. The sections referred to are set out in the margin.

No rule or regulation for the government of Indians upon a reservation has been cited, nor have we found any, which prohibits the firing of a gun there, ‘for fun,’ nor do we find any law, rule, or regulation which authorizes an arrest, without warrant, of an Indian not charged even with the commission of a misdemeanor, nor does it anywhere appear that Gleason had authority to issue a warrant for an alleged violation of the rules or regulations.

It is plain from this review of the subject that the charge of the court below, that the policemen had the right to arrest this plaintiff in error, without warrant, and that, in order to accomplish such arrest, they had the right to show and use their pistols so far as was necessary for that purpose, and that the plaintiff in error had no right to resist such arrest, was erroneous. That it was a material error, it seems to us, is equally plain. It placed the transaction if a false light before the jury, and denied to the plaintiff in error those rights which he clearly had. The occasion of the trouble originated in Gleason’s orders to arrest him, and in the announced intention on the part of the policemen, which they endeavored to accomplish, to arrest the plaintiff in error that night and take him to the agency, and all that followed that announcement ought to be viewed in the light of such proclaimed intention. And yet the charge presented the plaintiff in error to the jury as one having no right to make any resistance to an arrest by these officers, although he had been guilty of no offense, and it gave the jury to understand that the officers, in making the attempt, had the right to use all necessary force to overcome any and all opposition that might be made to the arrest, even to the extent of killing the individual whom they desired to take into their custody. Instead of saying that plaintiff in error had the right to use such force as was absolutely necessary to resist an attempted illegal arrest, the jury were informed that the policemen had the right to use all necessary force to arrest him, and that he had no right to resist. He, of course, had 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. What might 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.

The plaintiff in error was undoubtedly prejudiced by this error in the charge, and the judgment of the court below must therefore be reversed, and the case remanded with instructions to grant a new trial.

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Sec. 7139. An arrest may be either——

1. By a peace officer, under a warrant;

2. By a peace officer, without a warrant; or,

3. By a private person.

Sec. 7141. If the offense charged is a felony, the arrest may be made on any day and at any time of the day or night. If it is a misdemeanor, the arrest cannot be made at night, unless upon the direction of the magistrate indorsed upon the warrant.

Sec. 7144. The officer must inform the defendant that he acts under the authority of the warrant, and must also show the warrant if required.

Sec. 7145. If, after notice of intention to arrest the defendant, he either flee or forcibly resist, the officer may use all necessary means to effect the arrest.

Sec. 7148. A peace officer may, without a warrant, arrest a person——

1. For a public offense committed or attempted in his presence.

2. When the person arrested has committed a felony, although not in his presence.

3. When a felony has in fact been committed, and he has reasonable cause for believing the person arrested to have committed it.

4. On a charge, made upon reasonable cause, of the commission of a felony by the party arrested.

Sec. 7150. He may also at night, without a warrant, arrest any person whom he has reasonable cause for believing to have committed a felony, and is justified in making the arrest, though it afterward appear that the felony had not been committed.

Sec. 7151. When arresting a person without a warrant, the officer must inform him of his authority and the cause of the arrest, except when he is in the actual commission of a public offense, or is pursued immediately after an escape.

Sec. 7153. When a public offense is committed in the presence of a magistrate, he may, by a verbal or written order, command any person to arrest the offender, and may thereupon proceed as if the offender had been brought before him on a warrant of arrest.

Sec. 7154. A private person may arrest another——

1. For a public offense committed or attempted in his presence.

2. When the person arrested has committed a felony, although not in his presence.

3. When a felony has been in fact committed, and he has reasonable cause for believing the person arrested to have committed it.

Sec. 7155. He must, before making the arrest, inform the person to be arrested of the cause thereof, and require him to submit, except when he is in the actual commission of the offense, or when he is arrested on pursuit immediately after its commission.

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John-Henry Hill, M.D., Ph.D.