Your Right of Defense Against Unlawful Arrest

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.”

“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.

“One has an undoubted right to resist an unlaw­ful arrest, and courts will uphold the right of resis­tance in proper cases.” United States v. Di Re, 332 U.S. 581,  594 (1948)

“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. “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. (Wis 1924)

“Where offi­cers do not con­form to the ‘law of the land’ 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., “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)

“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.

“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 and “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.” Adarns 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, 266S.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)

“The United States Supreme Court, and every other court in the past decid­ing upon the mat­ter, has rec­og­nized that “at com­mon Law”, a per­son had the right to “resist the ille­gal attempt to arrest him.”John Bad Elk v. United States, 177 U.S. 529, 534–35 (1899)

See also The Law of Arrest in Civil and Crim­i­nal Actions

Thanks to this site for infor­ma­tion – http://www.constitutiondefender.com/natural_law_to_defend_yourself.htm

THE RIGHT TO SELF DEFENSE

I have often won­dered what it was like when com­mu­ni­ties were small, and every­body knew every­body. This thought occurred to me while I was dri­ving through Tomb­stone, Ari­zona, site of the famous gun­fight. As was reported in the papers of the day (not tele­vi­sion news), the Earps and Doc Hol­l­i­day were walk­ing down the street, know­ing that the Clan­tons and Low­ery were at the cor­ral. These fac­tions had been at odds with each other for years, and on this day there appeared to be a plan, for as the Earps and Doc walked by the Clan­tons, the Earps threw some hate­ful words out. This, appar­ently, did not pro­voke the desired action, so Doc pulled his shot­gun from under his coat, turned and fired. The Earps then joined in and only two of the oth­ers got away.

Sim­i­larly, here in Waco, one fac­tion, with color of law, was able to open up on the other in a dev­as­tat­ing gun­fight that left 9 dead. The color of law was suf­fi­cient, at least for the time being, to vin­di­cate the aggres­sors. In both cases the side with color of law would have, if cir­cum­stances war­ranted, been given time off, with pay, while adju­di­ca­tion occurred. The other side would have been incar­cer­ated until adju­di­ca­tion was com­pleted. Those with color of law would not be charged with a crime, but the oth­ers would be charged with seri­ous crimes.

While I was here dur­ing the siege I ran across an inter­est­ing piece of Texas law. In the Texas Penal Code, �9.31 ©, reads as fol­lows: �9.31 © 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.

There must have been a rea­son for this law to have been passed, so I went back and reread the def­i­n­i­tion of:

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 – Third Edition)

It appears, then, that the right for each of us to walk freely, sub­ject to not harm­ing or injur­ing another per­son or his prop­erty is the con­cept of lib­erty that the Found­ing Fathers spoke of, and we have let our lib­erty be lost in a myr­iad of reg­u­la­tion, rule and con­trol. What gives a “peace offi­cer” the right to take a per­sons lib­erty, or prop­erty? Obvi­ously the Texas leg­is­la­tors real­ized that exces­sive force could be used, unlaw­fully, jus­ti­fy­ing law­ful retal­i­a­tion. Per­haps they under­stood human nature and knew that per­sonal bias might play a part when one per­son, oper­at­ing under color of law, might exceed law­ful exer­tion of force.

Under­stand­ing that abuse of power might occur, isn’t it pos­si­ble that both time and exten­sion of power might result in “law enforce­ment” offi­cers exert­ing an author­ity that is beyond law­ful author­ity? Won­der­ing how, and why, the scope of law enforce­ment may have changed, I began search­ing fur­ther and ran into an inter­est­ing account of a sig­nif­i­cant change that came as a result of a major trauma in the his­tory of the United States of Amer­ica. Dur­ing World War II, espe­cially with the troops being an occu­pa­tion army after the armistices, there was a rather care­free atti­tude among those who thought they may never see home again. To con­trol the ser­vice­men the Mil­i­tary Police had to impose arbi­trary author­ity under the mar­itime juris­dic­tion that all sol­diers were sub­ject to. Mean­while, back in the states, police offi­cers approach­ing retire­ment dur­ing the war tended to stay on to help out in the war effort. As the MP”s began return­ing state­side (lit­er­ally tens of thou­sands of them) they began to fill the ranks of local law enforce­ment, fil­ing in the gap made by those now retir­ing. The atti­tude of arbi­trary enforce­ment was ingrained in the returnees, and, although tem­pered by train­ing as they joined the local ranks, still became a preva­lent atti­tude which began a change of ser­vant to mas­ter. I looked fur­ther (American”s Bul­letin, Sep­tem­ber 1993) and found an inter­est­ing arti­cle, por­tions of which follow:

This fun­da­men­tal premise was upheld by the Supreme court of the United States in the case of John Bad Elk v. U.S., 177 U.S. 529 (1900) when 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 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. “an arrest made with a defec­tive war­rant; or one issued with­out affi­davit; or one that fails to allege a crime is with­out juris­dic­tion, and one who is being arrested may resist arrest and break away. If the arrest­ing offi­cer is killed by one who is resist­ing, the killing will be no more than invol­un­tary manslaugh­ter. In review­ing the case we find that: “The court charged the jury: “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. .. 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 [John Bad Elk] he would have the right to show his revolver. He would have had the right to use only so much force as 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 for­got his duties as an offi­cer and had gone beyond the force nec­es­sary to arrest the 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. The jury, rely­ing on these instruc­tions, con­victed John Bad Elk of mur­der and the case went to the higher court on error. The higher court stated: “We think the court clearly erred in charg­ing that the police­man had the right to arrest the plain­tiff [John Bad Elk] in error, and to use such force as was nec­es­sary to accom­plish the arrest, and that the plain­tiff had no right to resist it. “At com­mon law, if a patty resisted arrest by an offi­cer with­out a war­rant, and who had no right to arrest him, and if in the course of resis­tance the offi­cer was killed, the offence of the party resist­ing arrest would be reduced from what would have been mur­der, if the offi­cer had the right to arrest, to manslaugh­ter. .. So we can clearly see that some­thing has hap­pened that has had the affect of allow­ing us to be arrested (lose our lib­erty) by the design of a law enforce­ment offi­cer when the Supreme Court has held that the offi­cer has no right unless cer­tain pro­ce­dures (con­sti­tu­tional pro­tec­tions) are adhered to.

Per­haps we have been led to believe that law enforce­ment has super­hu­man rights. Per­haps the Found­ing Fathers, and those that fol­lowed rec­og­nized that no spe­cial priv­i­lege could be granted to nor­mal humans who took a job that put them at risk. Per­haps arrest can­not be made, unless by indict­ment, prop­erly obtained infor­ma­tion or if a seri­ous crime, not minor, is com­mit­ted in the pres­ence of the offi­cer, and, per­haps not even in this last case unless prop­erty or lives are at stake. As a gen­eral rule we have accepted the fact that we may shoot another per­son to pro­tect our lives, prop­erty or money. But what is prop­erty or money if not a pre­vi­ous con­ver­sion of time. The time exerted to achieve the money or prop­erty surely had value.

When some­one attempts to “steal” that time prior to con­ver­sion are we not able to under­stand that even more is being taken away than when prop­erty is? Just because a man is wear­ing a badge gives him no right to take from us what we would not allow to be taken by some­one with­out a badge. Why have we come to a point that we accept author­ity, such as that which invaded Mt. Carmel Cen­ter, Waco, Texas, with­out ques­tion? How­ever, when the mat­ter comes to life or death we are will­ing to pro­tect our prop­erty, by any means nec­es­sary, when just the prop­erty jeopardized.

“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)

“The United States Supreme Court, and every other court in the past decid­ing upon the mat­ter, has rec­og­nized that “at com­mon Law”, a per­son had the right to “resist the ille­gal attempt to arrest him.” John Bad Elk v. United States, 177 U.S. 529, 534–35 (1899)

1. State v. Robin­son, 145 Me 77, 72 Alt. 2d 260, 262 (1950)

2. State v. Gum, 68 W. Va. 105

3. State v. Rouseau, 40 Wash. 2d. 92, 241, 242 P.2d 447, 449 (1952)

4. State v. Mob­ley, 240 N.C. 446, 83 S.E., 2d 100, 102 (1954)

5. Wilkin­son v. State, 143 Miss. 324, 108 So. 711

6. Thomas v. State, 91 Ga. 204, 18 SE 305

7. Pres­ley v. State, 75 Fla. 434, 78 So. 523

8. Burkhardt v. State, 83 Tex Crim 228, 202 S.W. 513

9. Mullis v. State, 196 Ga. 569, 27 SE 2d 91 (1943)

10. Owen v. State, 58 Tex Crim 261, 125 S.W. 405 (1910)

11. Franklin,118 Ga. 860, 45 S.E. 698 (1903)

12. Gra­ham v. State, 143 Ga. 440 85 S.E. 328, 331

13. City of Colum­bus v. Holmes, 152 N.W. 2d, 301, 306 (Ohio App. 1058)

14. Adams v. State, 121 Ga 163, 48 S.E. 910 (1904)

15. Robert­son v. State, 198 S. W2d 633, 635–36 Tenn. (1947)

16. Roberts v. Dean, 187 So. 571, 575 Fla. 1939

17. The State of Con­necti­cut against Leach, 7 Conn, Rep. 452 (1829)

18. Housh v. The Peo­ple, 75 ILL Rep. 487, 491 (1874)

19. Plum­mer v. The State, 135 Ind. 308, 313, 334 N.E. 968 (1893)

20. John Bad Elk v. U.S. 177 U.S. 529 (1899)

21. Peo­ple v. Hev­ern, 127 Misc. Rep. 141, 215 NY Supp 412

22. U.S. v. Cer­ciello, 86 NJL 309, 90 Atl.1112, (1914)

23. U.S. v. Kelly, 51 Fed 2d 263 (1931)

24. Bed­narik v. Bed­narik, 16 A 2d, 80, 90, 18 NJ Misc. 633 (1948)

25. State v. Height, 117 Iowa 650, 91 NW 935

26. Peo­ple v. Corder, 244 Mich. 274, 221 NW 309

27. Boyd v. U.S., 116 U.S. 616

28. State v. New­comb, 220 Mo 54 119 SW 405

29. Town of Blacks­burg v. Bean, 104 S.C. 146. 88 S.E. 441 (1916)

30. Allen v. State, 197 N.W. 808, 810–11(Wis 1924)

31. Adarns v. State, 121 Ga 163, 48 S.E. 910 (1904) Green v.Kennedy, 48 N.Y. Rep. 653, 654 (1871)

32. Hicks v. Matthews, 266 S.W. 2nd. 846, 849 (Tex. 1954)

33. Porter v. State, 124 Ga. 297, 52 S.E. 283, 287 (1905)

34. Mullins v. State,196 Ga. 569, 27 S.E. 2nd. 91 (1943)

35. Caper­ton v. Com­mon­wealth, 189 Ky. 652, 655, 225 S.W. 481, 481 (1920)

36. United States v. Di Re, 332 U.S. 581,  594 (1948)