Your Right of Defense Against Unlawful Arrest
These are not my words. These are the words uttered by the courts within
the United States and other States.
I am not advocating violence or promoting the unjust taking of life. As a
matter of fact, I am morally opposed to any taking of life.
However, in the realm of our humanity and circumstances we cannot
control, any individual has to allow for some possibility
of death to others, whether intentional or unintentional, when defending
themselves from what they perceive to be imminent harm
or death to themselves.
That said, government, being the incarnation of force, has recognized at
the judicial level the right of people to defend
themselves when that force is exercised unjustly. How can any of this be
avoided? In my opinion, by abolishing government
and creating better ways for society to function. That option
notwithstanding, by government mitigating the potential harm
it causes by limiting its actions to those involving violent actions of
others as opposed to regulatory edicts imposed upon
an otherwise peaceful populace.
"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."
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"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.
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"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.
Let's look at this case in detail. Runyan was cited in another case,
Shane Allen Wilson v. State of Indiana, 2006.
What the court is attempting to do is distinguish resisting an arrest,
whether lawful or not, but that which uses "excessive force" to effect.
Text from the opinion follows:
After noting that the marshal was attempting to make an illegal arrest,
our supreme court further noted that a police officer may not “use more
force than necessary to effect an arrest.” 34 N.E. at 968-69. The court
held that
if an officer is resisted before he has used “needless
force and violence,” he may then “press forward and overcome such
resistance, even to the taking of the life of the person arrested, if
absolutely necessary.” Id. at 969.
The court then noted that the marshal had not indicated to the defendant
that he was under arrest and that there had been no necessity for the
marshal to strike the defendant with his billy club. The court reasoned
that the marshal therefore became a “trespasser” and that the marshal’s
assault with the billy club, coupled with the discharge of his weapon,
“gave [the defendant] the clear right to defend himself.” Id. The
court stated that “[w]hen a person, being without fault, is in a place
where he has a right to be, and is violently assaulted, he may, without
retreating, repel force by force, and if, in the reasonable exercise of
his right of self-defense, his assailant is killed, he is justifiable.”
Id. (citing
Runyan v. State, 57 Ind. 80 (1877); Miller v. State, 74 Ind. 1
(1881)).
The trial court erroneously believed that the rule stated in Plummer has
been set aside. The trial court’s allusion to the right to challenge an
improper arrest in a civil court shows that the court equated the rule
stated in Plummer with the very different rule discussed in Fields v.
State, 178 Ind. App. 350, 382 N.E.2d 972 (1978). In Fields, the issue
before the court was whether any amount of force should be used by one
unlawfully but peaceably arrested. Id. at 976.
The court stated that the common law rule allowing a person to resist an
unlawful but peaceful arrest is outmoded because it tends to escalate
violence. Id. at 975. The court further stated that “[a] citizen, today,
can seek his remedy for a policeman’s unwarranted and illegal intrusion
into the citizen’s private affairs by bringing a civil action in the
courts against the police officers and the governmental unit which the
officer represents.” Id. Therefore, the court held that “although
[Field’s] initial arrest was unlawful, he was not entitled to forcefully
resist [the arresting officer’s] attempt to apprehend him.” Id. at 975.
(My comments: This is fallacious reasoning because it tends to grant
the presumption of permissibility upon the State since it is the one who
is resorting to violence. A person who resists an unlawful arrest will
be met with violence by the State when IT escalates the situation to one
of a violent confrontation. Specious and circular logic on the part of
the court, in my opinion.)
The court specifically noted that “this appeal does not address issues
that arise when an arrestee apprehends that the arresting officer is
using excessive force and that unless the arrestee defends himself, he
is likely to suffer great bodily harm or death.” Id.
In Wise v. State, 401 N.E.2d 65, 68 (Ind. Ct. App. 1980), this court
noted that Fields did not address the common law rule allowing a person
to use force in resisting excessive force by an arresting officer. We
further noted that other jurisdictions have recognized the general rule
that an arrestee may use reasonable force “to defend himself against the
use of greater force by the arrester than is required to effect the
arrest.” Id. (citing Anno.: 44 A.L.R.3d 1078 (1972)).
We discussed Heichelbech v. State, 258 Ind. 334, 281 N.E.2d 102 (1972)
and Birtsas v. State, 156 Ind. App. 587, 297 N.E.2d 864 (1973), and
concluded that “[w]hile neither Heichelbech nor Birtsas explicitly
states so, they clearly imply that Indiana adheres to the general rule
allowing an arrestee to resist the arrester’s use of excessive force by
the use of reasonable force to protect himself against great bodily harm
or death.” Id.
In a subsequent case, this court noted that
“the rule that a citizen
may not resist a peaceful, though illegal, arrest was not ‘intended as a
blanket prohibition so as to criminalize any conduct
evincing resistance where the means used to effect an arrest is
unlawful.’” Shoultz v. State, 735 N.E.2d 818, 823 (Ind. Ct. App.
2000) (citing Casselman v. State, 472 N.E.2d 1310, 1315 (Ind. Ct. App.
1989)).
We concluded that a citizen has the right to resist an officer
that has used unconstitutionally excessive force in effecting an arrest,
but the force used to resist the officer's excessive force may not be
disproportionate to the situation.
The Wise and Shoultz cases were correct in their interpretation of the
case law.
There has been no abrogation of the common law rule
allowing an arrestee to resist arrest to avoid personal injury or death
when the arresting officers engage in excessive force. Furthermore,
the rule should be interpreted to encompass a situation where an
arrestee determines to retreat rather than escalate the violence.
Accordingly, the trial court erred in determining that the proposed
instruction was an incorrect statement of the law.
IN SUMMARY - The courts used to recognize a Common Law right to resist
an unlawful arrest, which was later abrogated due to the likelihood that
such a resist could escalate to a violent confrontation. My response is
that may be the State should reconsider engaging in unlawful arrests.
That aside, the court did affirm a standing Common Law right to resist
ANY arrest in which the "officer" uses "excessive force", which is force
greater than necessary to effectuate an arrest. I disagree with the
court's ruling upon the abrogation of the Common Law right to resist ANY
unlawful arrest, but that will be for me to decide when that time comes.
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"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.
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"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).
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"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).
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"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).
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"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.
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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)
See also
