Somewhat motivated by the individual gun rights thread here, I’m curious to know what people feel about this topic.
At common law, an individual had the right to resist, with physical or even deadly force, an illegal arrest.
Today, of course, resisting an arrest with force of your own is likely to put in in the hospital, or in a standoff on some isolated farm holding. One of the reasons for gun rights was so that citizens would theoretically have the power to curb government’s tyrannical excesses; in today’s world, should the law permit a citizen to resist an illegal arrest?
In the US at least the enforcement and judicial systems offer very little consolation for making mistakes. Even people jailed for years and later vindicated are not offered anything more then a “We deeply regret . . .” and a “We do the best we can . . .” and basically “Get the fuck out of our face we don’t care if we made a mistake.” If abuse is proved, like in the case of Abner Louima, then punitive damages can be awarded. As far as I know, if there is no physical abuse and the system just fails, you’re just fucked. Even if the arrest and prosecution turned out to be totally in error, if you were to take a swing at the cop arresting you, you just got yourself in a ton of trouble.
If Abner Louima had turned and ripped the throat out of the cop who was torturing him (a reasonable course of action given the situation) I’m not so sure they would have understood.
I’m in Nebraska and the answer here is “no” you don’t have the right to forcibly resist an illegal arrest. Nebraska statutes specifically provide that the use of force to resist arrest is not justifiable, regardless of whether the arrest is legal or not. See Neb. Rev. Stat. Sec. 28-1409(2). In fact, Nebraska appellate courts have held that the legality of your arrest is not an issue when you later get prosecuted for criminal assault against a police officer. See State v. Clark, 605 N.W.2d 145, 8 Neb. App. 936 (2000).
In that case the court held noted the following:
My personal opinion is that allowing citizens to resist an unlawful arrest would present chaos. It’s kind of like that scene in The Shawshank Redemption when Tim Robbins character is being asked what he’s “in” for and he says he’s innocent. I suspect if it were allowable for citizens to resist an “unlawful” arrest you would end up with people forcibly resisting all the time and then saying “I felt the arrest was unlawful.”
I think that the citizenry should have the right resist an illegal arrest, or any illegal action of a cop, within reason. The response, however, should be in concordance with the severity of the abuse. If a policeman bursts into your house at random, without a warrant, and says “You’re coming with me”, I think “resisting” in the form of saying “No, come back with a warrant” is fine. Stabbing him in the groin with a pair of scissors would be going too far, though. However, if a cop busts into your home and starts beating up your kids for no apparent reason, I think the use of force should be appropriate - it would be self-defense.
It’s tough, though, because the rights of citizens to not be subject to abuse may come into conflict with the leeway a cop needs in order to perform his job. Say you come home to find a cop kneeling atop your wife, holding her to the ground. It could be that the cop is trying to rape your wife, or it could be that your wife was attacking the cop and he pinned her in self-defense. What should your rights be, in that case? Certainly, if the person was anyone but a cop, you would be justified in immediately beating the tar out of him - he’s assulting your family. But the fact that he’s a cop makes the situation touchier - you need to figure out what’s going on before you act. What if your wife yells “He’s trying to rape me!”? She could still be lying, though I’m guessing most husbands would give their wives the benefit of the doubt. I would. So, am I then justified in tackling the cop? Morally, maybe. Legally, I would doubt it.
Basically, the question of where to draw the line is a tough one, and I don’t have the answer. I would guess that legally speaking, the line comes down in favor of the cops most of the time. And I honestly don’t know if that’s a good thing, or not.
Jeff
During the course of an arrest, who is in the “correct” legal mind that the arrest is unlawful? The person arrested? The police officer? Both? Neither?
Notwithstanding the anectdotes of people unlawfilly arrested, detained (often for considerable time periods) and eventually released, but that’s why there are lawyers, judges and juries.
Shut up, submit and demand your lawyer. Do/say nothing more which might be construed as admitting any guilt (real or imagined).
So, in Texas at least, you can resist only if the arresting peace officer or agent uses greater force than necessary. Not sure how advisable this actually is though.
The Iowa Supremes have dealt with the question and have come to the conclusion that there is no Right to resist any arrest, be it lawful or not. This may include citizen’s arrest but the question has not come up.
My personal view is that the Iowa Court has tacitly accepted part two of Gelding’s Axiom: a cop will kill you if you give him an excuse. Resisting an unlawful arrest is an excuse and presents the potential for big trouble. Better, says the Court, to submit to an unlawful deprivation of liberty than invite gun play on the streets. There is a remedy for an unlawful arrest and the loss of liberty is relatively minimal compared to being rendered dead, for which there is no cure and which tends to be a permanent.
Awright, Bricker, spill: which case we talking about?
Personally, and I know that the case law is mostly against me, I think that if a police officer is not acting within his legitimate authority, he has no authority. Therefore a cop placing a citizen under an illegal arrest has no more than the authority of a fellow citizen - i.e., he can’t touch you without permission, and the arrestee may respond with the amount of force recognized by law to be an appropriate response to a battery.
That’s all very well and good, but the police officer has more training and the legal authority to determine whether an arrest is warrented. No court in the land is going to recognize an arrest as being equivilant to assult and battery, and the courts will equally frown upon citizens who think that an arrest attempt is the proper time to start a debate on what laws are and are not applicable to your situation.
I like the approach in the Texas statute, though I’d qualify it to say that the use of force is not justified "to resist an arrest or search that the actor knows is being made by a peace officer acting under color of law . . . " (and retaining the proportional response subsection that follows that provision). I wouldn’t give a free ride to a cop just because he’s a cop. If he abandons any pretense of acting legally, screw him.
First of all, you are legally incorrect. A police officer only has the authority to independently make arrests for crimes he witnesses, and even there, in some jurisdictions arrest warrants issued by a judge are still necessary for felonies. In all (IIRC) jurisdictions, arrest warrants are needed for other crimes. The judge decides whether an arrest is proper, not the cop.
As for factual knowledge whether an arrest is improper, there are many instances where the arrestee knows more than the cop. Heck, I’m a lawyer; if a cop arrested me, I’d probably know better than him/her whether the arrest was illegal.
As for the courts not agreeing with me, I acknowledged that in my original post. But the courts acknowledge that they are comprosing civil liberties in favor of safety. As a civil liberties purist, I am opposed to such compromises.
Why not? A police officer may often detain a suspect while an arrest warrant is obtained, which may mean it is a distinction without a difference, particularly since it is custody that invokes the need to Mirandize the suspect, but an arrest warrant is almost always needed when an arrest is made.
Ummmm, not so sure of this one. Police officers are allowed to make an arrest if there is probable cause to make that arrest. He doesn’t have to witness the guy beating the heck out of his girlfriend, he just needs probable cause that a crime was committed. Requiring an arrest warrant in all cases unless the officer witnesses it is not only ridiculous, it’s extremely unsafe.
Part of the rationale is that, in the vast majority of cases, the officer will know better, and have less an interest in the determination. Maybe you know better than some police officers, but the rule is for the vast majority of the public, not for just you.
So it is better in your little world that people not be arrested than police officers, or members of the public get beat up or die. Wow. Remind me not to vote for you.
There is a time and place to deal with illegal arrests. That time is not when they are being done, when tempers are high and the situation is potentially fatal. It is much better to deal with that after the fact in your civil suit.
Not until the citizen is required to know the law, instead of just being responsible for following it. Maybe that sounds crazy coming from me, but I think that is consistent.
