are there any legal guidlines as far as resisting unlawful arrest? I heard somewhere that anything, up to and including, lethal force can be used to prevent unlawful arrest.
Anyone have any info on this?
According to the ACLU, you do have some rights to resist, but you should do so only as a last resort. It seems that you don’t actually have the right to resist unlawful arrest, but you do have rights to prevent the use of excessive force causing personal harm to yourself. But, given that the police have the guns and the legal system behind them, and any use of force on your part is likely to result in more force from the officer, it’s a very bad idea to do so.
Calmly allow them to arrest you without having to pound on you.
Sue them later. You walk away with all your bones unbroken, and maybe some cash besides.
IANAL, but the thing is YOU don’t get to decide whether the arrest is unlawful. if the cop thinks he has grounds for an arrest, it is up to his superiors, the prosecutors and ultimately the courts to tell him he’s wrong. innocent people probably get arrested pretty frequently. that doesn’t mean that they get convicted or even prosecuted.
a link to the aclu “bust card”:
Reader99’s link has a typo – ignore the last two back slashes.
NEVER, EVER resist arrest.
If you believe you are innocent, let the justice system work it out. But if you are found innocent at a future date, that does not necessarily mean the arrest was unlawful.
As a side note, the charge of resisting arrest may carry a heavier fine/punishment than the original crime.
Depending on circumstances (who’s watching, etc), resisting can result in much worse charges. Attempted murder or assault with a deadly weapon on a police officer for example. Cops are control freaks. They have to be.
Running is not so bad, but not often effective.
Peace,
mangeorge
Hmm, sound advice, but what happens when you believe your life to be in danger?
If I have reason to believe the police officer in question is not looking to just arrest me (recall the rape charges on some police offers, police misconduct is also hardly an unheard of thing). What rights do I hold to protect myself?
Hmm, thinking about it I’d say, none, right? Because it will always be my word against a police officer and unless I’m the mayor or something, I’ll always loose. Worse if I end up killing the officer is my guess, no?
A related question: you always hear about raids gone bad, where the wrong house is entered. What happens if I’m home, polishing my gun, suddenly armed people bust in to my house. I act is what I figure is self defense and open fire on the intruders… let’s say I happen to survive the hail of bullets that will surely come my way. What would happen? The police officers entered the wrong house, I was surprised and acted instictively to defend my family, but could I still be held liable for shooting police?
welllll…
you can resist arrest theoretically (although it’s not advisable) if you KNOW FOR A FACT that the grounds for the arrest are unlawful.
The problem is though that the only people who would know this FOR A FACT would be qualified lawyers with experience in criminal law. Your average Joe won’t have sufficient knowledge of all the nuances of the relevant law and the case histories to be able to decide whether the arrest is unlawful.
Unlawful arrest is (IIRC) the same as if anyone else assaulted you on the street and reasonable force can be used to resist. Not advisable though even if you knew the arrest was wrong - a better course of action is to accept the arrest and complain later.
Yes. Being found innocent doesnt mean that the officer didn’t have good grounds for arrest. But this is a different question. We’re talking about a situation where the actual arrest itself IS unlawful.
This can be resisted (theoretically) but it’s not a good idea for a couple of reasons:
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a later trial might decide against you and find that the officer did, in fact, have good grounds for arrest. So you would need to be a lawyer and KNOW FOR A FACT that good grounds don’t exist
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you might get beaten up by several chunky coppers so even if you are in the right, you still get beaten up.
I’ve been in this situation where someone threatened to arrest me without good grounds. Since I KNEW he didn’t have grounds I just blinded him with a blizzard of statutes and cases and he gave up. But I wouldn’t have resisted if he had tried to arrest me - I just like a good argument.
The Iowa Supremes have addressed this and I suspect other states have as well. The resistance of an unlawful arrest in the State of Iowa is a crime. Depending on how much force is used in the resistance and whether a police officer is hurt (even superficially) it is a crime that can get you anywhere from one year in the county jail or (preferably in terms of time actually served, quality of food, freedom from assault, ability to correspond with friends and family, and stuff to do to pass the time away) up to five years in the Big House. In this state there is no right to resist an unlawful arrest.
I suppose the reasoning, and the court pretty much said and as others have noted, is that it is not up to the cop and the prisoner to determine lawfulness, it is ultimately up to the courts. In the mean time the last thing we need is a bunch of civilians with busted heads (in the style of Rodney King) or worse because they decided that there was no lawful basis to arrest them.
The thing that is annoying is that there are some cases where it is pretty apparent that the police officer deliberately goaded the arrestee into taking a punch at the officer and then beat the bejesus out of the perp and filled resisting arrest/assault on an officer charges to boot. The leading case is out of a dog track - casino at Council Bluffs in which the guys principal offence seemed to be winning to much. The local cops were called on a phony claim that the guy was drunk and disorderly. When the cops arrived there was a confrontation (mere words are not resisting arrest), one of the casino security people shoved the guy into a cop and a good old fashion butt kicking followed. A jury convicted the guy of assaulting a police officer, and on appeal, saying that all that was necessary was some evidence the jury could accept, the Supremes affirmed despite a security video that showed the guy did not start it or even do much to protect him self. One justice had the common sense to suggest that the case needed to be send back for a new trial because of an apparent injustice.
Do not resist arrest. Do not argue. Just put your hands out to be cuffed. Call your lawyer and keep your smart mouth shut.
ok SG, thats Iowa law?
I’m in the UK (I shoulda mentioned) so YJMV.
I’m not claiming any expertise in this subject by the way, just giving recollections from law school that could be out of date or incorrect but:
I wonder about the thinking behind this.
Surely the arrest is either lawful or unlawful, the courts merely find the truth after the event. The truth is out there, the courts merely find it. So at the time the arrest occurred the act of the arrest was either lawful or unlawful. Factually.
And it is for a court to determine which.
You’re saying that the police can commit unlawful acts in the name of justice?
That beneath the top (lawful) level of justice there is a layer wherein unlawful behaviour is acceptable?
Surely if an arrest is factually unlawful then it is factually unlawful. You can’t have all the top layers of justice upholding lawful behaviour and then have the bottom layer (the police) allowed to commit unlawful behaviour.
That destroys the whole point of having law in the first place, if you allow one of the layers to be immune from committing unlawful acts.
I’m not claiming any expertise on this subject, just asking.
Jojo, I don’t think there is an immunity. There is simply a mechanism to make the necessary determination that does not involve granting the person arrested the privilege of declining to be arrested until the question is fully presented to an impartial arbitrator. If a cop says you are arrested then, by God. You are arrested and you argue about it with the cop at your peril. That does not make the arrest any more or less lawful but it does avoid some broken heads. The cop is still answerable criminally or civilly and his decision to arrest is still subject to review. We just don’t do that on the street or in some parking lot at two o’clock in the morning.
Jojo, IANAL, but I’ll try this out: if a cop sees a car sqealing out of the Quik-e-Mart parking lot at 3:00 AM after the owner called in to say that he was robbed and the driver of the vehicle has a concealed hand-gun on him and a stack of Twinkies still on the Quik-e-Mart rack, I think we can all agree that arresting this guy is reasonable.
If it later turns out that the owner made a false claim against the driver for a personal vendetta, camera footage shows that the Mart was never robbed, the driver had a license for a concealed weapon, and purchased the entire rack of Twnkies (including rack) for a bizarre Wicca ritual on the Spring/Summer Twinkinox, and he was innocent of all of the alleged crimes, it still isn’t an unlawful arrest because the officer acted in good faith with the information available to him at the time.
So this is why we don’t give the driver the right to start taking shots at an officer trying to arrest him because he knows he didn’t do it, but he might have a right to provide a reasonable level of resistance if he starts getting beat/raped by NYPD officers (not that he still has much chance for justice).
Note, too, that those at the TOP ie Washington DC, to my understanding, are also not required to obey the laws they themselves pass.
Effectively, only the free citizens are required to obey the law.
And even then, the rich ones buy their way out.
Sucks to be poor in Amerika these days, lemme tell ya.
I’ve heard similar situations, but I was always told that the police were required to announce their presence (i.e POLICE OPEN UP, or other such thing.)
In Canada, I believe a police officer is required to announce their presence (POLICE OPEN UP! We have a warrant!) in some way.
If the police followed protocol and did this, then they wouldn’t have to worry about an innocent man mistaking them for robbers, would they? 
I’ve been a cop for 17 years in Washington State, so I’m quite familiar with this question.
The courts all through the US have ruled repeatedly that there is no right to resist even an unlawful arrest, so long as the only thing threatened is loss of liberty. I think it would be difficult to prove that one had a reasonable fear of serious bodily injury at the time of arrest (unless you create that risk by fighting), but if you could prove it you may be justified in resisting arrest.
The reasoning behind this is that the arrested person really doesn’t know if the arrest is lawful or not. Even though he or she may know for a fact that they have not committed a crime, the arrest may still be lawful as long as the Officer has probable cause to believe that you have committed a crime. And Probable Cause is a long cry from Proof Beyond a Reasonable Doubt.
At common law, persons had the right to resist an unlawful arrest. In Virginia, for example, a citizen is permitted to use reasonable force to resist an illegal arrest. See Banner v. Commonwealth, 204 Va. 640, 646-47, 133 S.E.2d 305, 309-10 (1963); Brown v. Commonwealth, 27 Va. App. 111, 116-17, 497 S.E.2d 527, 530 (1998).
The Supreme Court recognized the right here in John Bad Elk v. US (and I must pause here to note the name of the victim in that case was John Kills Back - both American Indians, as you might have already guessed).
So as a general proposition, a state must take an affirmative step to remove that right by statute.
If I recall correctly, 38 states have done so, and in 12 states citizens retain the common-law right to resist an illegal arrest. The Model Penal Code recommended the change as early as the 1960s, and of the only 12 states that retain the right today, all but two of them have done so by judicial decree rather than statute.
- Rick
IANAUKL but i am a UK law student. The relevant offence here is [as far as i can determine the only offence of this type] is resisting a police officer in the execution of his duties under S34 of the Police and Criminal Evidence Act. The key bit here is in the course of his duty - the officer has to be acting lawfully. To be acting lawfully there are procedural requirements in the act, one of which he/she has to identify themselves as police officers and give you their warrant card number. If he does not then he is acting as a private citizen and has no right to detain you unless it is after the commission of a offense which he knows you have commmitted.
Furthermore if you resist in a proportinate manner [i.e. you dont shoot the cop because he touched you] and have an honest belief as to the illegality of the force being applied to you, you can use the defence of self-defence as recognised in the statute to be exculpated of the charge of resisting arrest.
The caveat here is the amount of force you use, as if enough is used so as to cause grevious bodily harm you may be charged with an offense to cause such while resisting arrest. I dont think there is a lawfulness requirement here. You would be able to plead self defense again but i dont think the courts would be very likely to accept that the response was proportionate.