“Not a Law at All”1:A Call For a Return to the Common Law Right to Resist Unlawful

Arrest2

Originally published in Southwestern University Law Review 29(1): 1-50 (1999)

Craig Hemmens*Daniel Lessard Levin**

“When one by force subdues men, they do not submit to him in heart. They submit, because their strength is not adequate to resist.”3

“Who overcomes by force, hath overcome but half his foe.”4

Table of Contents

I. Introduction 2II. Development of the Right to Resist Arrest

9III. The Right to Resist Arrest in the United States

15A. Supreme Court Cases

16B. Early Scholarly Criticism 22

IV. The Movement to Abrogate the Right to Resist

1* Assistant Professor, Department of Criminal Justice Administration and Academic Director, Legal Assistant Program, Boise State University. B.A., University of North Carolina at Chapel Hill, 1985, J.D., University of North Carolina Central University School of Law, 1988, Ph.D., Sam Houston State University, 1998.** Assistant Professor, Department of Political Science, Boise State University. B.A., University of Wisconsin-Madison, 1985, M.A., University of North Carolina at Chapel Hill, 1988, Ph.D., University of Wisconsin-Madison, 1993.? “Any law which violates the indefeasible rights of man is essentially unjust and tyrannical; it is not a law at all.” Maximilien Robespierre, Declaration of the Rights of Man, Article 6, 24 April 1793. 2 The authors are indebted to Cara Lechner for her assistance in researching this article. 3 Mencius 372-289 B.C.). From The Chinese Classics, vol. 2, The Works of Mencius, trans. By James Legge (1861-1886). 4 John Milton, Paradise Lost, I: 648.

Unlawful Arrest--1941 to 197031

V. The Civil Rights Movement, Disobedience of Unlawful Authority and the Right to Resist40

VI. The Abrogation of the Right to Resist from 1970 to the Present46A. State v. Valentine 48B. Wisconsin v. Hobson

52VII. The Applicability of the Common Law Rule to Modern Society

54VIII. Conclusion 61

I. Introduction

That no person may be deprived of their liberty without due process

of law is one of the bedrock principles of the Anglo-American legal tradition,

important enough to be mentioned twice in the United States Constitution.5

This broad principle has underlain many of the most important

developments in American constitutional law and in the law regarding

criminal procedure. The Supreme Court has expanded such due process

protections as the right to counsel,6 the right to be informed of the right to

remain silent when in police custody,7 and the right to have excluded from a

criminal trial evidence illegally seized by the police.8 Due process has also

5 U.S. Constitution, Amendments V and XIV. Amendment V states in relevant part: “nor shall any person . . . be deprived of life, liberty, or property, without due process of law.” Amendment XIV states in relevant part: “no shall any State deprive any person of life, liberty, or property, without due process of law.” The Fifth Amendment was held applicable to the federal government in Barron v. Baltimore, 7 Peters 243 (1833); the Fourteenth Amendment was held applicable to the states in Allgeyer v. Loiusiana, 165 U.S. 578 (1897). 6 Powell v. Alabama, 287 U.S. 45 (1932) Gideon v. Wainwright, 372 U.S. 335 (1963). 7 Miranda v. Arizona, 377 U.S. 201 (1966). 8 Weeks v. U.S., 232 U.S. 383 (1914); Mapp v. Ohio 367 U.S. 643 (1961).

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been used by the courts for many other purposes, including: to create the

right to privacy,9 to extend the right against racial discrimination to the

federal government,10 and to require a hearing prior to termination of

welfare rights.11 But while the courts have determined that state actions

lacking due process are illegitimate, and have placed additional burdens on

state institutions regulating public activity, they have also moved away from

an ancient commitment to citizen resistance against arbitrary assertions of

governmental authority, particularly in the area of arrest.

The common law requirement that the police must have a warrant to

arrest a person unless they observed a crime in progress or had probable

cause to believe that the person had committed a felony has become

broader in the latter part of this century, with new exceptions allowing

more detentions and arrests by police for purposes of questioning than

previously.12 And since the 1960s, state legislatures and high courts have

stopped recognizing the individual right to resist unlawful arrest. That

right, originally based on the principle that an unlawful arrest constituted

an assault serious enough to provoke its victim or witnesses to forcibly

oppose the arrest, had been transformed by the early twentieth century into

a right of self-defense against police violence.13 The courts having reduced

the right from one of principled resistance to arbitrary power to a means by

9 Griswold v. Connecticut,381 U.S. 479 (1965) (Goldberg, J., concurring).10 Bolling v. Sharpe, 347 U.S. 497 (1954). 11 Goldberg v. Kelly, 397 U.S. 254 (1970). 12 See, e.g., Rolando V. del Carmen, Criminal Procedure (1998); Wayne R. LaFave and Jerald H. Israel, Criminal P{rocedure (1991). 13 See notes 92-181 and text, infra.

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which one might avoid injury to one’s person, twentieth century reformers

portrayed it as distinctly counterproductive.14 They did so on the grounds

that resistance might easily lead to increased chance of injury for both the

arrestee and the officer, and that the common law rule reflected archaic

conditions in which defendants were incarcerated for lengthy periods in

subhuman conditions without recourse to the expansive due process

protections provided in contemporary law; any loss of liberty suffered by

those arrested, the courts argued, could be remedied and was not sufficient

justification for a rule which might increase the chance of violence.15 The

abrogation of an individual’s right to resist unlawful arrest is the end result

of a shifting preference within society and the courts for order over liberty.

This preference for order over liberty is particularly troubling today

because of changes in police procedure. As part of the movement to “get

tough” on crime, police are employing a variety of approaches, such as

“community-oriented policing,”16 “community caretaking,”17 and aggressive

enforcement of traffic laws and city ordinances as a means of detaining

suspicious individuals for closer examination.18 While these techniques vary 14 See notes 92-181 and text, infra. 15 See notes 92-181 and text, infra. 16 See, e.g., Mary Ann Wycoff and Wesley G. Skogan, Community Policing in Madison: An Analysis of Implementation and Impact, in Dennis P. Rosenbaum (ed.), The Challenge of Community Policing (1994); Linda S. Miller and Karen M. Hess, The Police in the Community: Strategies for the 21st Century (1998). 17 See, e.g., Eric L. Muller, Hang on to Your Hats! Terry Into the Twenty-first Century, 72 St. John’s L. Rev. 1141 (1998). 18 See, e.g., David A. Harris, Car Wars: The Fourth Amendment’s Death on the Highway, 66 Geo. Wash. L. Rev. 556 (1998); Craig Hemmens and Jeff Maahs, Reason to Believe: Ohio v. Robinette. 23 Ohio Northern University Law Review 309 (1997); David A. Sklansky, Traffic Stops, Minority

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in the details, they share several common features, including a more

proactive approach by the police, who detain individuals for minor,

nonviolent offenses as a means of preventing more serious crime.19 While

there is evidence that these more aggressive tactics may produce a short-

term decrease in crime,20 a number of critics have argued these more

aggressive procedures create increased hostility toward the police in inner

city neighborhoods and among minority groups who are the primary targets

of these proactive policing tactics.21

Aggressive enforcement of minor laws in minority communities is

similar to the infamous “sweeps” conducted by police officers in some

cities22 before the decisions in Mapp v. Ohio23 and Terry v. Ohio24 limited the

efficacy of such tactics.25 They also mirror the use of nuisance charges such

Motorists, and the Future of the Fourth Amendment, 1997 The Supreme Court Review 271 (1998). 19 See, e.g., Jerome H. Skolnick, Terry and Community Policing, 72 St. John’s L. Rev. 1265 (1998). An example is a Texas Department of Public Safety trooper who has stopped as many as forty vehicles in one day for traffic violations and then conducted a consent search. This trooper admits to following a car for 150 miles to see if it would violate a traffic law so that he would have an excuse to conduct a traffic stop and attempt a consent search. “There’s Some Crooks and Dope Close,” The Huntsville Item, August 4, 1996.20 Elsa Brenner, Elsa, Patrol Program Credited With Drop in Crime, The New York Times 13:1 (January 21, 1996). 21 See, e.g., William J. Stuntz, Race, Class and Drugs, 98 Col. L. Rev. 1795 (1998); see also Dan M. Kahan and Tracey L. Meares, The Coming Crisis of Criminal Procedure, 86 Georgetown L. J. 1153 (1998). 22 Skolnick, supra note 19. 23 367 U.S. 643 (1961). 24 392 U.S. 1 (1968). 25 Mapp limited the efficacy of these tactics by declaring illegally seized evidence should be excluded from trial. This police officers could no longer seize a person and search them without probable cause and then use anything they found against that person. Commentators have noted that while arrests based on suspicionless police seizures declined in some cities,

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as vagrancy and loitering, the prosecution of which were also made more

difficult through such decisions as Papachristou v. Jacksonville26 and Coates

v. City of Cincinnati.27 Such “sweeps” necessarily involve extensive use of

police discretion and provide multiple opportunities for the abuse of

authority. Another form of proactive policing with the potential for abuse is

the use of drug courier profiles based on such factors as an individual’s

race and ethnicity.28 Finally, “anti-gang” ordinances which allow police to

order suspected “gang members” to disperse upon police orders also carry

with them the potential for abuse, as recognized in the Supreme Court’s

recent invalidation of Chicago’s policy in City of Chicago v. Morales.29 These

practices have received tremendous support from law enforcement officials

and some commentators, but have also been subjected to withering

criticism from both the judiciary and scholars.

One of the primary complaints regarding these more aggressive

tactics is that a large number of innocent persons are subjected to police

questioning and, in some cases, harassment.30 For instance, one police

there was a dramatic increase in the number of arrests made by officers who observed a person “drop” an incriminating item. Such cases came to be known as “dropsy” cases. Skolnick, supra note 19. Terry limited the efficacy of these tactics by requiring the police to have at least “reasonable suspicion” before forcibly detaining a suspect, and requiring the officer to demonstrate some fear for his safety before conducting a limited, “pat down” search, or “frisk.” 26 405 U.S. 156 (1972).27 402 U.S. 611 (1971).28 See, e.g., David A, Harris, Factors for Reasonable Suspicion: When Black and Poor means Stopped and Frisked, 69 Ind. L. J. 659 (1994); Tracey Maclin, Terry v. Ohio’s Fourth Amendment Legacy: Black Men and Police Discretion, 72 St. John’s L. Rev. 1271 (1998). 29 119 S.Ct. 1849 (1999).30 See Harris, supra note 18.

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officer in Ohio acknowledged stopping some 786 persons for traffic

violations in one year alone because he wanted to see if they were carrying

drugs, not to write traffic citations.31 Not surprisingly, many people do not

appreciate such tactics, and may voice their displeasure to the officer.32

There is plenty of anecdotal evidence that police officers may respond

poorly to challenges to their authority, and arrest persons who protest.33

While these arrests may be later held to be illegal, the person illegally

arrested has already suffered the indignity of arrest, booking,

fingerprinting, and spending some time in a jail cell.34 Some persons resist

arrest because they believe that the officer is acting illegally.

At common law there was a right to resist some illegal arrests,35

which was largely based on the principle that some unlawful arrests were

so provocative that the arrestee, or even an onlooker, might react against

the injustice without deliberation or concern for the consequences of their

actions.36 Although American courts adopted the common law right to resist

arrest, they changed the primary justification to self-defense during the

early twentieth century.37 In general, courts allowed the use of whatever

force was “absolutely necessary to repel the assault constituting the

attempt to arrest.”38 The only major restriction was that an arrest made 31 See Hemmens and Maahs, supra note 18. 32 See Brenner, supra note 20. 33 Id. 34 Malcolm Feeley, The Process is the Punishment (1992). 35 See infra notes 53-66 and text. 36 Id. 37 James Engel, The Right to Resist An Unlawful Arrest in Modern Society, 18 Suffolk L. Rev. 107 (1984). 38 Bad Elk v. United States, 177 U.S. 529, 535 (1900).

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pursuant to a warrant, even if later determined to be technically defective,

could not be resisted by force.39

The trend over the past forty years has been to eliminate the right to

resist arrest.40 The abrogation of the right is based on several factors,

including the development of modern criminal procedure, the ability to seek

redress via other means, and the belief that violence ought not be

encouraged.41 Several state courts have recently joined the large number

of states which abandoned the right to unlawful resist arrest since the

1960s, even while acknowledging the flagrant illegality of the police

misconduct.42 In the rush to eliminate a right perceived as contrary to

contemporary public policy, the courts have forgotten the original

justification for the rule—that an illegal arrest is an affront to the dignity

and sense of justice of the arrestee,43 as well as the common law tradition of

rule under law.44 Contemporary courts’ increased deference to police

authority undermines the common law principle that citizens are governed

39 Annot., 44 ALR3d 1078, Modern Status of Rules as to Right to Resist Illegal Arrest. See also, Note, Criminal Procedure—Protection Accorded the Officer Who Arrests Under A Defective Warrant, 42 Ky. L.J. 120 (1953). 40 See infra notes 218-241 and text. 41 Id. 42 State v. Valentine, 935 P.2d 1294 (1997); State v. Hobson, 577 N.W.2d 285 (Wis. 1998)43 See, e.g., The Queen v. Tooley, 93 Eng. Rep. 349 (K.B. 1710). 44 Daniel J. Boorstein, The Mysterious Science of the Law: An Essay on Blackstone’s Commentaries (1941).

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by laws, and not men,45 and that it is the police officer’s lawful authority,

and not his person, which empowers him to make an arrest.

This article examines the development and history of the right to

resist an unlawful arrest,46 scholarly criticism of the common law rule, and

the current status of the rule. We argue that recent attacks on the rule are

based on a misunderstanding of the original justifications for creating the

right to resist an illegal arrest, and that there remains a great need for the

right to resist an unlawful arrest, particularly as new police tactics increase

the probably for arbitrary assertions of authority. That such tactics often

target individuals for questioning and arrest on the basis of race has only

led to increased suspicion of the police47 provides a new and important 45 Chief Justice Marshall incorporated this principle in American constitutional law when he declared, “The government of the United States has been emphatically termed a government of laws, and not of men.” Marbury v. Madison, 5 U.S. 137 (1803).46 This article is concerned only with the right to resist an unlawful arrest. Related issues include the right to resist a lawful arrest and the right to resist an arrest, lawful or unlawful, that is attempted with excessive force. For a discussion of the right to resist excessive force used to effect an arrest, see generally, Dag E. Ytreberg, Annot., Right to Resist Excessive Force Used in Accomplishing Lawful Arrest, 77 A.L.R.3d 281. This article also does not address the related issue of obstruction of a police officer or obstruction of justice. While these charges may be levied against one who resists arrest in some jurisdictions, in general these offenses are intended to penalize different conduct. For a discussion of obstruction of a police officer, see Note, Types of Activity Encompassed by the Offense of Obstructing a Public Officer, 108 Penn. L. Rev. 388 (1960). For a discussion of obstruction of justice, see Annot., Criminal Liability for Obstructing Process As Affected By Invalidity or Irregularity of the Process, 10 A.L.R.3d 1146.47 There have been a number of news stories in recent years detailing the concerns and mistrust of racial and ethnic minorities. See, e.g., Brenner, supra note 20. For an academic discussion of the impact of increasing distrust of police by members of inner city communities, see Tracey L. Meares and Dan M. Kahan, Laws and (Norms of) Order in the Inner Ciry, 32 Law and Society Rev. 805 (1998); Robert J. Sampson and Dawn Jeglum

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justification for a return to the common law right to resist unlawful arrest.

That Americans live under greater surveillance, and come into contact with

state authority on a more frequent basis today, provides law enforcement

with more opportunities than ever before to criminalize resistance to

proactive policing tactics.

II. Development of the Right to Resist Arrest

An arrest has been defined by the United States Supreme Court as the

taking of a person into custody against his or her will for the purpose of

criminal prosecution or interrogation. 48 This definition is overly narrow, as

an arrest may occur when a person is taken into custody willingly.49 Perhaps

most clearly, “An arrest requires either physical force . . . or, where that is

absent, submission to the assertion of authority.”50 Because the use of force

is always a threat in an arrest, police officers may only lawfully arrest an

individual when they have met one of a series of criteria. A police officer

may arrest on the basis of a warrant, which may issue for either a

misdemeanor or a felony. An officer may also arrest without a warrant for

felonies and also for misdemeanors committed in his presence.51 An arrest

Bartusch, Legal Cynicism and (Subcultural) Tolerance of Deviance: The Neighborhood Context of Racial Differences, 32 Law and Society Rev. 777 (1998). 48 Dunaway v. New York, 442 U.S. 200 (1979). Dee also, del Carmen, supra note 12. 49 Thus, another court has defined arrest as “the taking of a person into custody for the commission of an offense as the prelude to prosecuting him (sic) for it.” State v. Murphy, 465 P.2d 900 (Or. App. 1970).50 California v. Hodari D., 499 U.S. 621 (1990).51 See United States v. Watson, 423 U.S. 411 (1976).

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made without proper foundation may be deemed illegal by the courts.52

Additionally, an arrestee could, under the common law rule, lawfully resist

so long as they used reasonable force.

The right to resist an unlawful arrest has existed at common law for

over three hundred years. Its origins may be traced to the Magna Charta in

1215,53 but it was not until Hopkin Huggett’s Case54 in 1666 that the right

was established by judicial decision. Hopkin Huggett’s Case involved

several men who came to the aid of a man being unlawfully arrested by a

constable; in the resulting fight the constable was slain. The court

determined that a person who came to the aid of someone being unlawfully

arrested, and killed the constable, was guilty not of murder but of

manslaughter. Under the law at the time, an unprovoked killing was

murder, while a killing with provocation was manslaughter. According to

the majority, the illegal arrest created adequate provocation for the victim, 52 There are four different ways that an arrest can be unlawful. “First where the officer is executing an arrest under a warrant, the arrest may be unlawful if the warrant was facially defective. Second, although the warrant is facially sufficient, it may be found invalid if not lawfully issued. Third, in the instance of a warrantless arrest, the arrest will be unlawful if the arresting officer did not have probable cause to believe that the arrestee had committee a crime in his presence or lacked probable cause to believe the arrestee had committed a felony outside his presence. Finally, an arrest which is otherwise lawful may be unlawful if the officer employs excessive force in executing the arrest.” Penn Lerblance, Impeding Unlawful Arrest: A Question of Authority and Criminal Liability,” 61 Denver L.J. 655, 662-663 (1984).53 “No freeman shall be taken or imprisoned, or disseised, or outlawed or banished, or in any way destroyed, nor will we pass upon him, nor will we send upon him, unless by the lawful judgement of his peers, or by the law of the land.” Magna Charta Sec. 39 (1215). 54 84 Eng. Rep. 1082 (K.B. 1666). The constable was actually not arresting the man for having committed a crime, but instead was attempting to impress the man into the army. Id.

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justifying resistance and reducing the charge for killing from murder (an

unprovoked killing) to manslaughter (a killing upon sufficient provocation).

Additionally, the court stated that the illegal arrest constituted adequate

provocation for other citizens to correct the injustice:

That if a man be unduly arrested or restrained of his liberty by

three men, altho’ (sic) he be quiet himself, and do not endeavor

any rescue, yet this is a provocation to all other men of England,

not only his friends but strangers also for common humanity

sake . . . to endeavor his rescue.55

While the court did not explain precisely why the illegal arrest constituted

provocation for other citizens as well as the victim, this would be clarified in

The Queen v. Tooley.56

In Tooley, a constable, Samuel Bray, arrested one Anne Dekins on the

streets of London on the charge of being a disorderly person.57 As the

constable was escorting Dekins to jail, three men armed with swords

attempted to rescue her, but stopped when the constable identified himself

and asserted his authority to arrest. Constable Bray then took Dekins to

jail. Upon leaving the jail, the constable was set upon by the same three

men, who now demanded Dekins’ release from jail. One Joseph Dent came

55 Id. 56 93 Eng. Rep. 349 (K.B. 1710). 57 Constable Bray apparently arrested Miss Dekins on the basis of a warrant issued pursuant to a statute allowing certain officials to “hear and punish incontinencies.” Among the activities included under the phrase incontinencies was lewd or unchaste behavior. Id.

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to Bray’s assistance and was killed by Tooley, one of the three men

attacking Bray. Tooley was arrested and charged with murder.

The court determined that Constable Bray had no basis for arresting

Dekins, as there was no evidence that she was behaving in a disorderly

manner at the time of her arrest.58 The question in Tooley was whether the

illegal arrest of Dekins constituted adequate provocation such as to reduce

the charge from murder to manslaughter. By a 7-5 vote, the court held that

manslaughter was the proper charge, relying in part on Hopkin Huggett’s

Case.59

As in Hopkin Huggett’s Case, in Tooley there was an illegal arrest,

and the killing of a constable, not by the victim of his illegal arrest, but by a

bystander. However, in Tooley the person who came to the aid of the

illegally arrested person did not observe the arrest, nor was a constable

killed while attempting an arrest, but after the prisoner had been

transported to jail. Despite these differences, the court reached the same

conclusion in Tooley as in Hopkin Huggett’s Case, holding that the illegal

arrest served as provocation for resistance, even by others, thereby

reducing the charge to manslaughter. The Tooley court justified extending

the provocation beyond the arrestee on the basis that an unlawful arrest

was an offense against the Magna Charta, and thus an affront to all citizens:

58 It appears from the record that Constable Bray had previously arrested Dekins on a similar charge. Id. Thus he apparently arrested her on this occasion based on her prior conduct. 59 84 Eng. Rep. 1082 (K.B. 1666).

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The prisoners in this case had sufficient provocation; for if one

be imprisoned upon an unlawful authority, it is a sufficient

provocation to all people out of compassion; much more where

it is done under a colour of justice, and where the liberty of the

subject is invaded, it is a provocation to all the subjects of

England . . . [b]ut sure a man ought to be concerned for Magna

Charta and the laws; and if anyone against the law imprison a

man, he is an offender against Magna Charta.60

The court noted that the bystanders who attacked the constable acted at

their peril when they intervened.61 If a court subsequently determined the

arrest to be legal, the claim of provocation would fail, as the legality of the

arrest was a matter for the courts to determine later.

Both Tooley and Hopkin Huggett’s Case dealt with the rights of

bystanders to intervene to resist the unlawful arrest of another, which was

subsequently extended to instances where the victim of an illegal arrest

resisted. The later courts reasoned that if a third person can resist the

arrest of another, the subject of the arrest can also resist, for they suffer

the battery of the unlawful arrest, as well as the provocation of injustice.

Subsequent cases also extended the rule from homicides to assaults against

an arresting officer. In these cases, the provocation served not to reduce

the crime charged, but to excuse the assault entirely.62 This resistance had 60 The Queen v. Tooley, 93 Eng. Rep. at 352-353. 61 Id., at 353. 62 See, e.g., The King v. Thompson, 168 Eng. Rep. 1193 (K.B. 1825)(excusing an assault on a constable by a journeyman wrongfully arrested on suspicion of stealing his master’s tools); The King v. Curvan, 168 Eng. Rep. 1213 (K.B.

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to be reasonable, however. Later courts held resistance was not if some

time had passed since the arrest, because time had allowed tempers to cool

and for the victim of the illegal arrest to reflect.63

One area in which the law was less clear involved incidents where

officers attempted arrests which they believed in good faith to be lawful,

but which were later deemed unlawful, such as when the warrant was

defective.64 When the officer knowingly acted illegally, the provocation

seemed clear, but when the officer was unaware that the warrant was

defective, courts felt the level of provocation was less, and that when a

warrant was valid on its face, there was no provocation.65 Although this

limitation was justified because of a lack of provocation, the courts may

have been trying to protect from harm those police officers acting “in good

faith” in executing an apparently valid warrant. Police officers have a legal

obligation to execute process which is facially valid. Although the police

officer had not made the mistake which invalidated the arrest, the officer

would be unfairly subject to attack for simply doing her job. Unfortunately,

the good faith exception fails to recognize the arrestee’s subjective point of

1826)(excusing an assault on a constable by a man wrongfully arrested on suspicion of insulting another). 63 Thomas J. Hearne, Note, Criminal Law—Self-defense and the Right to Resist an Unlawful Arrest, 43 Mo. L. Rev. 744, 747 (citing 1 J. Turner, Russell on Crime, at 508 (11th ed. 1958). 64 See, e.g., The King v. Mead, 2 Stark. 205 (1817)(excusing an assault on a bailiff because the arrest was unlawful on the grounds that the bailiff had displayed the proper warrant, but not the underlying writ). 65 See, e.g., The Queen v. Davis, 1 Leigh and Crave’s C.C. Res. 64 (Camarthen Assizes, 1861)(holding that resisting an arrest when the constable had a warrant which contained only some minor, technical defects, was not excused).

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view - that he has not committed a crime, regardless of the existence of the

warrant, and is therefore the victim of an unlawful arrest. Those arrested

under a unlawful warrant are as likely be as enraged as someone unlawfully

arrested by an officer when the officer had herself made the mistake

regarding the validity of the arrest.

This good faith exception was amply justified. As one commentator

has noted, the cases in which the common law courts held an illegal arrest

created provocation excusing resistance generally involved truly outrageous

conduct by the police officer, arresting individuals through “arbitrary

assertions of authority.”66 The provocation in these cases came directly from

the officer’s actions, while in cases involving a technically defective

warrant, the provocation resulted from the actions of a third party. In

essence, courts said that an officer acted at his peril if he chose to make an

arrest and that arrest was later determined to be unlawful; if the officer

was simply following orders, he was protected to some degree. This was

the state of the common law at the time of the founding of the United

States.

III. The Right to Resist Arrest in the United States

American courts adopted the English rule that an unlawful arrest

constituted provocation to resist. As in England, the courts struggled with

whether a defect in the warrant constituted provocation.67 The earlier

cases tended to define any defect as provocation, while later cases 66 Paul G. Chevigny, The Right to Resist an Unlawful Arrest, 78 Yale L.J. 1128, 1131 (1969). 67 Id., at 1131.

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attempted to differentiate between defects that were technical and those

that were obvious.68 Obvious defects constituted provocation, while

technical defects generally did not. This led to inconsistent results as

courts attempted to explain the difference between a technical violation and

obvious one.

Despite these problems, the right to resist arrest was adopted in the

common law of the majority of states prior to the turn of the century, and

was not seriously questioned until the mid-twentieth century, when it came

under attack from scholarly critics, and was disregarded in two influential

model codes, the Uniform Arrest Act,69 adopted in 1941, and the Model

Penal Code,70 adopted in 1961. Eventually state legislatures and courts

began to adopt the critics’ position so that in the forty-seven years between

1941 and 1998, the common law right to resist arrest has been limited in

thirty-seven states, nineteen by legislative enactment71 and eighteen by

judicial decision.72 68 Id., at 1131-1132. See also, Annot., 10 A.L.R.3d 1146 (1966). 69 The Uniform Arrest Act (1941). 70 The Model Penal Code (1961). 71 Ala. Code Sec. 13A-3-28 (1982); Ark. Stat. Ann. Sec. 41-512 (1977); Cal. Penal Code Sec. 834a (1971); Colo. Rev. Stat. Sec. 18-8-103(2) (1978); Conn. Gen. Stat. Sec. 53a-23 (1981); Del. Code Ann. Tit. 11, Sec 464(d) (1979); Fla. Stat. Sec. 776051(1) (1976); Ill. Stat. Ann. Ch. 38, Sec. 7-7 (1972); Iowa Code Sec. 804.12 (1980); Mont. Code Ann. Sec. 45-3-108 (1981); Neb. Rev. Stat. Sec. 28-1409(2) (1979); N.H. Rev. Stat. Ann. Sec. 594.5 (1974); N.Y. Penal Law Sec. 35.27 (1975); Or. Rev. Stat. Sec. 161-260 (1981); 18 Pa. Cons. Stat. Sec. 505(b)(1)(2) (1973); R.I. Gen. Laws Sec. 12-7-10 (1981); S.D. Comp. Laws Ann. Sec. 22-11-5 (1978); Tex. Penal Code Sec. 9.31(b)(2), 38.03 (1974); Va. Code Sec. 18.2-460 (1982). 72 Miller v. State, 462 P.2d 421427 (Alaska 1969); State v. Hatton, 568 P.2d 1040, 1046 (Ariz. 1977); State v. Richardson, 511 P.2d 263, 268 (Idaho 1973); State v. Thomas, 262 N.W.2d 607, 610-611 (Iowa 1978); State v. Austin, 381 A.2d 652, 654-55 (Me. 1978); Commonwealth v. Moreira, 447

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A. Supreme Court Cases

Only once has the United States Supreme Court directly ruled on the

question of a right to resist unlawful arrest; it has also commented on the

right in dicta and in dissenting opinions in two other cases. In the single

case on point, John Bad Elk v. United States,73 decided in 1900, the

defendant, an Indian policeman at the Pine Ridge Indian Reservation in

South Dakota, was convicted of murder after shooting a fellow Indian

policeman who had come, with two others, to arrest him. The three officers

had received verbal orders from a Captain Gleason to bring Bad Elk to the

reservation office to answer some questions about an incident in which Bad

Elk had been firing his gun into the air. There was no arrest warrant, nor

evidence that Bad Elk had committed a criminal violation. When confronted

at his home, Bad Elk refused to accompany the three patrolmen to the

office, saying it was too late and that he would go with them in the morning.

There was some dispute as to precisely what happened next,74 but Bad Elk

fired his rifle at the three police officers, killing John Kills Back. At Bad Elk’s

trial for murder, Bad Elk’s counsel requested a jury instruction which

reflected the common law right to resist an unlawful arrest.75 The trial

N.E.2d 1224, 1227 (Mass. 1983); In the Matter of the Welfare of Burns, 284 N.W.2d 359, 360 (Minn. 1979); State v. Nunes, 546 S.W.2d 759, 762 (Mo. Ct. App. 1977); State v. Koonce, 214 A.2d at 433 (N.J., 1965); State v. Doe, 583 P.2d 464, 467 (N.M. 1978); City of Columbus v. Fraley, 324 N.E.2d 735, 740 (Ohio 1975); State v. Blaine, 133 Vt. 345, 348, 426 A.2d 834 (Vt. 1975). 73 34 U.S. 529 (1900). 74 The police officers claimed that Bad Elk fired on them without provocation, while Bad Elk claimed the deceased made a movement as if he was going for his weapon about to shoot him. Id., at 532-533. 75 The proffered instruction was: “From the evidence as it appears in this action, none of the policemen who sought to arrest the defendant in this

18

judge refused to give such an instruction, and instead instructed the jury

that the three police officers had the right to arrest Bad Elk and that he

could use force only to protect himself from any excessive force used by the

officers to make the arrest.76 Bad Elk was convicted of murder and

sentenced to death.

On appeal, the Supreme Court reversed the lower court. Justice

Peckham, for a unanimous Court, wrote that the jury instruction given by

the trial judge was erroneous:

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 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 . . . [I]f the officer have no right to arrest, the

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.” Id., at 533. 76 The trial judge charged the jury 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 . . . the deceased, being an officer off 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 beyond the force necessary to arrest defendant, and was about to kill him or inflict great bodily injury upon him, which was not necessary for the purpose of making the arrest.” Id., at 533-534.

19

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.77

Peckham’s opinion clearly endorsed the common law rule that an illegal

arrest may be resisted, and when resistance results in the police officer’s

death, the provocation inherent in the illegal arrest attempt reduces the

charge from murder to manslaughter. The Court did not offer a rationale for

this rule, but merely indicated that such a right was firmly established.78

In a subsequent case, United States v. Di Re,79 decided in 1948, the

Supreme Court again endorsed the right to resist an unlawful arrest in

similarly vague terms, this time in dicta. Di Re involved a prosecution for

unlawfully possessing ration coupons during World War Two. At issue was

whether the police possessed the requisite probable cause to arrest the

defendant. When the police seized the defendant, he did not object to being

arrested. At trial, and on appeal, the prosecution argued that the

defendant’s failure to protest could be used to create probable cause, on

the theory that an innocent man would have objected to, or resisted, his

arrest.

The Court decided the case on other grounds, but dismissed the

prosecution’s claim that submission to the police could be used as a factor

in creating probable cause: 77 Id., at 534-535. 78 Some commentators have incorrectly asserted that the Court endorsed the provocation rationale for the common law rule, but this overstates what the Court actually dId. See, e.g. Penn Lerblance, supra note 52, at 664. 79 332 U.S. 581 (1948).

20

[C]ourts will hardly penalize failure to display a spirit of

resistance or to hold futile debates on legal issues in the public

highway with an officer of the law. A layman may not find it

expedient to hazard resistance on his own judgement of the law

at a time when he cannot know what information, correct or

incorrect, the officers may be acting upon . . . [I]f the officers

believed they had probable cause for his arrest on a felony

charge, it is not to be supposed that they would have been

dissuaded by his profession of innocence.80

In addition, the Court referred to the common law right to resist an illegal

arrest, stating: “One has an undoubted right to resist an unlawful arrest,

and courts will uphold the right of resistance in proper cases.”81 The Court,

however, failed to clarify the basis for this assertion.

The Court has not seriously considered the right to resist an unlawful

arrest since Bad Elk, missing an opportunity to do so in Wainwright v. New

Orleans.82 Wainwright, a Tulane law student, was detained by several New

Orleans police officers who thought he fit the description of a murder

suspect. He refused to remove his shirt to allow the police to determine

whether he had a tattoo similar to the one in the description of the murder

suspect,83 and was then arrested on charges of vagrancy, resisting arrest

80 Id., at 594. 81 Id. 82 392 U.S. 598, 614-615 (Douglas, J., dissenting). 83 Jefferson D. Hughes III, Note, The Right to Resist Unlawful Arrest, Louis. L. Rev. 840, 841 (1978).

21

and “reviling the police.”84 At the police station, he first offered to return to

his apartment to secure identification, but then folded his arms and tried to

avoid the police. After the original charges were dismissed, he was charged

with, and convicted of, resisting arrest based on his conduct at the police

station.85 The trial court ruled the initial arrest was lawful, and that

Wainwright had no right to refuse to comply with police orders to remove

his shirt. 86 The Louisiana Supreme Court upheld the trial court ruling,87 and

Wainwright sought review in the United States Supreme Court, arguing he

had a Fourth Amendment right to resist an unlawful (and hence

unreasonable) arrest.88

The Court granted his petition, but subsequently dismissed the writ of

certiorari as improvidently granted. Both Chief Justice Warren and Justice

Douglas dissented, with Warren arguing that Wainwright’s arrest was

illegal under state law. Although he saw no need to reach the Fourth

Amendment issue in this case, Warren did suggest that “the right to resist

an unlawful seizure of the person may be basic to the Fourth

Amendment.”89 For his part, Douglas asserted that the Court’s refusal to 84 392 U.S. 598, 614-615 (Douglas, J., dissenting). The basis for the last charge apparently was his reference to the police as “stupid cops.” Id., at n. 12. 85 Hughes, supra note 83. 86 Id. 87 City of New Orleans v. Wainwright, 184 So.2d 23 (1966). 88 Wainwright v. City of New Orleans, 392 U.S. 598 (1967).89 392 U.S. 598, at 603-608 (Warren, C.J., dissenting). The Chief Justice’s suggestion that there may be a right to resist not just unlawful arrests but unlawful seizures has profound implications in light of the Court’s determination in Terry v. Ohio, 392 U.S. 1 (1968), that while the police may conduct a brief “investigative detention” on the basis of “reasonable suspicion” of criminal activity, such a “stop and frisk” constitutes a form of

22

find a constitutional basis for the right to resist an unlawful arrest meant

that the Court had “forsaken the Western tradition and taken a long step

toward the oppressive police practices not only of Communist regimes but

of modern Iran, ‘democratic’ Formosa, and Franco Spain.”90 Despite, or

perhaps because of, such strong language, neither the Chief Justice nor

Douglas could persuade any of the Warren Court’s stalwart libertarians,

including Black, Brennan, Fortas or Marshall, who had brought about the

due process revolution of the 1960s, to join them.91

B. Early Scholarly Criticism

The first reported scholarly criticism of the right to resist an unlawful

arrest appeared in a 1924 law review note.92 The note’s author briefly

recounted the development of the common law rule in the United States

and acknowledged that “[m]ost of the cases hold that a person may use all

the force reasonably necessary to resist the illegal arrest, short of taking

life.”93 Nonetheless, the author concludes that the law seems to be “too

willing to glorify the right to personal liberty . . .”94 and that the common

seizure. If this is so, then there may be a constitutional basis for resisting not only an unlawful arrest, but any on the street encounter that rises to the level of a “seizure.” Such a holding would obviously have profound implications for current police practices. For a discussion of the “stop and frisk” doctrine, see generally, 72 St. John’s L. Rev. 721-1382 (1998). 90 392 U.S. 598, 615 (Douglas, J., dissenting). 91 Fortas wrote a concurrence, joined by Marshall, that warned against drawing inferences regarding the authority of police to arrest people under such circumstances, and explicitly declaring that they had not chosen to decide the case on the merits because the case record was underdeveloped. 392 U.S. 598.92 Note, Resistance to Illegal Arrest, 1924 Michigan Law Review 62 (1924). 93 Id. 94 Id., at 65.

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law rule should be abrogated. The idea that liberty was too highly valued

and so could pose a threat to social welfare is a peculiarly 20th century idea,

and clearly antithetical to the liberal tradition, which animates much of

modern criticism of the common law rule. That public safety should be

considered a paramount value is indicative of how American legal discourse

would continue to shift from a highly individualistic ideology of rights and

responsibilities to one valuing physical security.95

This preference for the physical security of both officers and arrestees

over the common law understanding of individual liberty would be

continued and amplified in one of the first academic criticisms of the rule, a

1942 law review article by Harvard law professor Sam Bass Warner.96

Warner’s article was a discussion of the Uniform Arrest Act, which had

drafted by a committee comprised of police officers, prosecutors, defense

attorneys, judges, attorneys general, and law professors.97 Warner had

served as the reporter for the committee, which was formed by the

Interstate Commission on Crime for the purpose of drafting a model act “to

reconcile the law as written with the law in action.”98 The Act covered nine

95 Laurence Friedman, Total Justice, pp. 45-79 (1992).96 Sam Bass Warner, The Uniform Arrest Act, 28 Va. L. Rev. 315 (1942). 97 Id., at 316. 98 Id.

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topics, including questioning and detaining suspects, searching suspects for

weapons, and arrest without a warrant.99 Section Five100 of the Act stated:

If a person has reasonable ground to believe that 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.101

While the Act imposed no specific penalty for resisting arrest, by making

resistance to an arrest illegal in all instances, the Uniform Arrest Act

prevented the person being arrested from using the illegality of the arrest

as a defense to charges of assault, manslaughter, or murder of the arresting

officer.102

Warner’s justification for eliminating the right to resist arrest was

that society had changed, so that the conditions which gave rise to the rule

no longer existed, making the rule a dangerous anachronism.103 First,

Warner argued, the act of resisting an arrest in the 20th century posed far 99 Id., at 317. The Uniform Arrest Act is included in the Warner article, on pages 343-347. Its full title is “An Act Concerning Arrests by Peace Officers, Providing for the Questioning and Detention of Suspects, Searching Suspects for Weapons, the Force Permissible in Making and Resisting Arrest, Arrests without a Warrant, the Use of Summons instead of Arrest, the Release and Detention of Persons Arrested and the Identification of Witnesses, Prescribing Penalties, and Making Uniform the Law Relating Thereto.” Id., at 343-344. In composing the title, the authors of the Act apparently opted for comprehensiveness of coverage over brevity, as the full title sets forth the nine topics included in the Act.100 Professor Warner notes in the text of the article that the right to resist arrest is covered in Section Six of the Act. Id., at 331. The Act as printed in the article covers the right in Section Five. Id., at 345. This error has been repeated by later commentators. 101 Id., at 345. 102 Id., at 331. 103 Id., at 330.

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greater perils to society than during the period when the common law

evolved:

Constables and watchmen were armed only with staves and

swords, and the person to be apprehended might successfully

hold them off with his own weapon and thus escape. Today,

every peace officer is armed with a pistol and has orders not to

desist from making an arrest though there is forceful resistance.

Accordingly, successful resistance is usually possible only by

shooting the officer to prevent him from shooting first.104

While modern weaponry is far more lethal than that of earlier times, both

Hopkin Huggett’s Case and The Queen v. Tooley, involved the death of a

constable. Despite the fatal result of the resistance, the English courts

were willing to create the right, even while creating a “serious danger,”105

as Professor Warner described the common law rule’s consequences.

Warner ‘s second justification for eliminating the right to resist an

unlawful arrest was that it was only exercised by criminals:

Though at one time the innocent may have been as likely to

resist illegal arrest as the guilty, this is not longer true. An

innocent man will not kill to avoid a few hours, or at the most

several days, in jail. Besides, he will ordinarily have no gun,

and therefore will be unable to resist successfully. Thus the

right to resist illegal arrest by a peace officer is a right that can

104 Id. 105 Id.

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be exercised effectively only by the gun-toting hoodlum or

gangster.106

This argument is similar to the claims often made against modern criminal

procedure rules such as the exclusionary rule107 and the requirement that

suspects in custody be apprised of their constitutional rights prior to any

interrogation.108 While some claim that only those who have committed a

crime will need to claim the benefits of the exclusionary rule or the right to

remain silent, the Supreme Court and numerous commentators have made

it clear that these rights are held by all Americans.

Warner’s second argument is based on two incorrect premises. The

first is that only criminals are armed and able to “successfully” resist

arrest.109 Warner overstates what constitutes a “successful” resistance to

arrest—escape. Having a right to resist arrest does not apply only to those

who escape, but more often serves as a defense to a charge of resisting

arrest for those who resist but are still arrested. Warner’s second premise,

that innocent persons will not object to the minor inconvenience of a

wrongful arrest,110 completely ignores the original justification for the right

to resist arrest—that a person wrongfully arrested, or even a bystander who 106 Id. 107 The exclusionary rule is a judge-created remedy for violations of the Fourth Amendment by police officers or their agents. Under this rule, first applied to the federal government in Weeks v. United States, 232 U.S. 383 (1914), and applied to the states in Mapp v. Ohio, 367 U. 643 (1961) any evidence seized by police officers in violation of the Fourth Amendment will be excluded from trial. 108 This requirement was first announced by the Court in Miranda v. Arizona, 377 U.S. 201 (1966). 109 Warner, supra note 96, at 330. 110 Id.

27

observes the wrongful arrest, has been sufficiently provoked by the illegal

arrest that any assault is excused or culpability in a homicide lessened.

Warner offers no support for his conclusion that only “enemies of society”111

will resist arrest, neglecting those who may resist out of passion or

principle. He also fails to note one of the basic principles of due process,

that an arrestee is not yet guilty in the eyes of the law, and proceeds to

describe the arrestee as a “gun-toting hoodlum,”112 or a “gangster.”113

However, it is Warner’s third rationale for eliminating the right to

resist unlawful arrest which has been most often seized upon by later

commentators114 and courts.115 According to Warner, the dangers inherent

in being arrested have been all but eliminated in modern society.116 Warner

ties the origins of the right to resist unlawful arrest to the supposed

recognition by the common law courts’ that being arrested subjected a

person to great peril:

The rule developed when long imprisonment, often without the

opportunity of bail, “goal [sic] fever,” physical torture, and other

great dangers were to be apprehended from arrest, whether

legal or illegal.117

111 Id, at 331. 112 Id, at 330. 113 Id. 114 See infra notes 124-140 and text. 115 See, e.g., State v. Valentine, 935 P.2d 1294 (1997); State v. Hobson, 577 N.W.2d 285 (Wis. 1998). 116 Warner, supra note 96, at 330. 117 Id.

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This argument built upon Warner’s prior research into the law of arrest. In

his article “Investigating the Law of Arrest,”118 published two years before

his article on the Uniform Arrest Act, Warner described in great detail the

frightening conditions in English jails:

[P]risoners were often kept in irons. Those without the means

to buy better accommodations were frequently huddled together

in dark, filthy rooms, in close proximity to depravity and

disease. Under such conditions, imprisonment until the next

term of court was often equivalent to a death sentence,

especially during the frequent periods when prisons were swept

by a malignant form of typhus known as “gaol fever.”119

Warner drew heavily from several early accounts of prison conditions120 to

argue that the right to resist unlawful arrest was developed in response to

deplorable prison conditions rather than out of the law of provocation.

Warner never mentions or explains the rationale of cases such as Tooley,

nor does he refer to any cases in which common law courts mentioned the

deplorable prison conditions, much less used such conditions to justify the

right to resist unlawful arrest; Warner’s claim of such concern was found

118 Sam B. Warner, Investigating the Law of Arrest, 26 A.B.A. J. 151 (1940). 119 Id., at 152. 120 See, e.g., John Howard, The State of Prisons (1929). A later commentator, examining the same sources noted that “gaol fever” was such a problem that in 1730 several officers of the court, including the lord chief baron, at the Lent Assize at Taunton contracted the disease from prisoners brought before the bar and died. Ralph D. Smith, Comment, Criminal Law—Arrest—The Right to Resist Unlawful Arrest, 7 Nat. Resources J. 119, 122 n. 16 (1967).

29

unsustainable by Paul Chevigny many years later.121 Nonetheless, Warner’s

explanation for creation of the right to resist unlawful arrest appears to

have been accepted without question by subsequent courts122 and most

commentators.123

The next scholarly examination of the right to resist arrest, a student

note published almost ten years after Professor Warner’s seminal article,124

echoes his claims that the right developed in response to poor prison

conditions125 and that only criminals will avail themselves of the right to

resist an unlawful arrest.126 The author also argues that in the case of

California, the time has come to reconsider the rule, as prison conditions

have improved127 and police are better armed to prevent successful

attempts at resisting arrest.128 At the same time, he concedes that, at the

121 Id., at 1130-1131. 122 See, e.g., State v. Valentine, 935 P.2d 1294, at 1301 (noting “One can understand why, as the Tooley court said, an unlawful arrest was a great provocation affecting all people out of compassion”) (internal quotation marks omitted). 123 See, e.g., Smith, supra note 120, at 123 (noting that “Where imprisonment was often the equivalent of a death sentence, or at least, a living death, one can understand why men resisted arrest”. But see Chevigny, supra note 66. 124 Robert H. K. Walter, Comment—Taking Away Right to Resist Illegal Arrest,” 39 Cal. L. Rev. 96 (1951). 125 Id., at 112. 126 He suggests that “the law-abiding citizen” will be satisfied seeking redress through a subsequent civil or criminal action, as “[t]he innocent arrestee is not apt to risk committing an offense and inviting retaliatory force by physically restraining an officer. Unarmed and unaccustomed to opposing the police, the idea of escape does not occur to him.” Walter, supra note 124, at 112.127 Improved, yes, but perhaps still less than ideal, according to the author, who gives them something less than a ringing endorsement: “Whatever their deficiencies, California’s jails are not medieval.” Id.128 Id.

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time of writing, the right to resist arrest “seems to be universal and

virtually unchallenged by statute,”129 and that the only people criticizing the

right are scholarly commentators and police departments.130 That would

change in the next few years.

129 Id., at 111. In fact, the author quotes from the leading California case on the right to resist arrest at that time; “The right of a person to resist unlawful arrest cannot be denied.” Id., quoting People v. Craig, 91 P. 997 (1907). 130 Id. Regarding the police, the author states “The [police] are unanimous in believing that physical resistance to an arrest by an officer whose identity is known to the suspect should be forbidden. This does not mean that they believe police should not be subject to restraints against illegal arrests, but they do believe that the proper forum for determining the lawfulness of an arrest should be the courts, not the scene of the arrest.”

31

Several legal and extralegal movements occasioned the first stage of

change in the common law rule. While the early criticism of the right to

resist arrest did not immediately lead to court decisions overruling prior

cases or legislation eliminating the right, during the 1960s several courts

did issue decisions eliminating the right.131 From the language of these

decisions, it appears that courts had taken notice of the academic criticism

of the right and adopted many of the same arguments.132 The courts that

abandoned the rule relied on the rationale that social change had made the

rule obsolete and dangerous.133 Few courts even recognized the common

law rationale of provocation, and a number of state courts, even those

recognizing the right to resist arrest, changed the rationale from

provocation to self-defense.134 The Model Penal Code and statutory

abandonment of the right in other states also seems to have influenced

these courts’ decisions.135

In the early 1950s, the American Law Institute (ALI), a private

association comprised of prosecutors, defense attorneys, judges, and law

professors, created an advisory committee with the more ambitious goal of

drafting a comprehensive model criminal code to serve as “a treatise on the

major problems of the penal law and their appropriate solutions,”136 the

131 See, e.g., State v. Koonce, 214 A.2d 428 (New Jersey 1965). 132 See, e.g., Miller v. State, 462 P.2d 421 (Alaska 1969). 133 See, e.g., City of Columbus v. Fraley, 324 N.E.2d 735 (Ohio 1975).. 134 James Engel, Criminal Law—The Right to Resist an Unlawful Arrest in Modern Society—Commonwealth v. Moreira, 388 Mass. 596, 447 N.E.2d 1224 (1983), 18 Suffolk L. Rev. 107 (1984);135 Lerblance, supra note 52.136 Model Penal Code (Tent. Draft No. 8, 1958).

32

Model Penal Code, published in 1961.137 Included in the code was a section

dealing with self-defense, which itself included a provision dealing with the

right to resist unlawful arrest. Following the Uniform Arrest Act, the

drafters of the Model Penal Code eliminated the right to resist arrest,

providing that: “The use of force is not justified under this section . . . to

resist an arrest that the actor knows is being made by a peace officer,

although the arrest is unlawful.”138 The Model Penal Code committee

rationalized their decision to eliminate the right to resist unlawful arrest in

part because of the development of alternate remedies for an aggrieved

arrestee, and in part because the use of force by the arrestee was likely to

result in greater injury to the person without preventing the arrest.139

According to a leading treatise on the criminal law, the Model Penal Code

Section abrogating the right to unlawful resist arrest presumes that,

because there are other remedies aside from force, an arrestee should

submit to “the indignity of the arrest and the inconvenience of the detention

until release,” as these are “relatively minor matters.”140

137 For a discussion of the writing and adoption of the Model Penal Code and a discussion of its contents, see Herbert Wechsler, The Model Penal Code and the Codification of American Criminal Law, in Roger Hood, ed., Crime, Criminology, and Public Policy 419 (1974). 138 Model Penal Code Section 3.04(2)(a)(i)(1985). 139 Model Penal Code 3.04(2)(a)(I) commentary at 19 (Tent. Draft No. 8, 1958). 140 Wayne R. LaFave and Austin W. Scott, Criminal Law at 462 (2d ed. 1986).

33

IV. The Movement to Abrogate the Right to Resist Unlawful Arrest--

1941 to 1970

The modern move away from the common law rule began in earnest in

1941, when two states, Rhode Island and New Hampshire, adopted versions

of the Uniform Arrest Act through legislative action;141 they would remain

the only states to reject the common law rule until Delaware legislatively

abrogated the right in 1953, and California erased the right by statute in

1957.142 The publication of the Model Penal Code in 1962, a spate of

academic criticism of the common law rule in the late 1960s, and the

abandonment of the rule by several influential state courts led to a

widespread effort to eliminate the right to resist arrest. In 1965, the New

Jersey courts were the first to strike down the common law rule through

judicial decision, 143 a watershed decision which reinvigorated the

movement towards elimination of the right. By 1975, five more states had

eliminated the common law right to resist an unlawful arrest: two - Illinois

and New York - by statute,144 and three - Alaska, Idaho and Ohio - by case

law.145 The pace of change then rapidly quickened, as thirty-one states had

eliminated the common law rule: nineteen by statute,146 and twelve by case 141 N.H. Rev. Stat. Ann. Sec. 594.5 (enacted 1941); R.I. Gen. Laws Sec. 12-7-10 (enacted 1941). 142 Del. Code Ann. Tit. 11, Sec. 1905 (enacted 1953); Cal. Penal Code Sec. 834(a) (enacted 1957).143 State v. Koonce, 214 A.2d 428 (App. Div. 1965). 144 Ill. Rev. Stat. Ch. 38, Sec. 7-7 (1971); N.Y. Penal Law Sec. 35.27 (McKinney Supp. 1975 145 Miller v. State, 462 P.2d 421 (Alaska 1969); State v. Richardson, 511 P.2d 263 (Idaho 1973); City of Columbus v. Fraley, 324 N.E.2d 735 (Ohio 1975). 146 Ala. Code Sec. 13A-3-28 (1982); Ark. Stat. Ann. Sec. 41-512 (1977); Cal. Penal Code Sec. 834a (1971); Colo. Rev. Stat. Sec. 18-8-103(2) (1978);

34

law by 1983.147 Presently, thirty-seven states have abrogated the right to

resist an unlawful arrest: nineteen by statute,148 and eighteen by case

law.149

As of 1965 only California, Delaware, New Hampshire, New Jersey,

and Rhode Island had criminalized resistance of an illegal arrest, with all

Conn. Gen. Stat. Sec. 53a-23 (1981); Del. Code Ann. Tit. 11, Sec 464(d) (1979); Fla. Stat. Sec. 776051(1) (1976); Ill. Stat. Ann. Ch. 38, Sec. 7-7 (1972); Iowa Code Sec. 804.12 (1980); Mont. Code Ann. Sec. 45-3-108 (1981); Neb. Rev. Stat. Sec. 28-1409(2) (1979); N.H. Rev. Stat. Ann. Sec. 594.5 (1974); N.Y. Penal Law Sec. 35.27 (1975); Or. Rev. Stat. Sec. 161-260 (1981); 18 Pa. Cons. Stat. Sec. 505(b)(1)(2) (1973); R.I. Gen. Laws Sec. 12-7-10 (1981); S.D. Comp. Laws Ann. Sec. 22-11-5 (1978); Tex. Penal Code Sec. 9.31(b)(2), 38.03 (1974); Va. Code Sec. 18.2-460 (1982). 147 Miller v. State, 462 P.2d 421427 (Alaska 1969); State v. Hatton, 568 P.2d 1040, 1046 (Ariz. 1977); State v. Richardson, 511 P.2d 263, 268 (Idaho 1973); State v. Thomas, 262 N.W.2d 607, 610-611 (Iowa 1978); State v. Austin, 381 A.2d 652, 654-55 (Me. 1978); Commonwealth v. Moreira, 447 N.E.2d 1224, 1227 (Mass. 1983); In the Matter of the Welfare of Burns, 284 N.W.2d 359, 360 (Minn. 1979); State v. Nunes, 546 S.W.2d 759, 762 (Mo. Ct. App. 1977); State v. Koonce, 214 A.2d at 433; State v. Doe, 583 P.2d 464, 467 (N.M. 1978); City of Columbus v. Fraley, 324 N.E.2d 735, 740 (Ohio 1975); State v. Blaine, 133 Vt. 345, 348, 426 A.2d 834 (Vt. 1975). 148 Ark. Code Ann. 5-54-103 (Michie 1993); Colo. Rev. Stat. Ann. 18-8-103 (West 1986); Conn. Gen. Stat. Ann. 53a-23 (West 1994); Del. Code Ann. tit. 11, 464(d) (1995); Fla. Stat. Ann. 776.051 (West 1992); Haw. Rev. Stat. Ann. 710-1026 (Michie 1993); 720 Ill. Comp. Stat. Ann. 5/7-7 (West 1993); Iowa Code 804.12 (1997); Kan. Stat. Ann. 21-3217 (1995); Ky. Rev. Stat. Ann. 520.090 (Michie 1990); Mont. Code Ann. 45-3-108 (1997); Neb. Rev. Stat. Ann. 28-1409(3) (Michie 1995); N.H. Rev. Stat. Ann. 594:5 (1986); N.Y. Penal Law 35.27 (McKinney 1998); N.D. Cent. Code 12.1-05-03 (1997); Or. Rev. Stat. 161.260 (1995); 18 Pa. Cons. Stat. Ann. 505(b)(1)(i) (West 1983); R.I. Gen. Laws 12-7-10 (1994); S.D. Codified Laws 22-11-5 (Michie 1988); Tex. Penal Code Ann. 38.03 (West 1994).149 Miller v. State, 462 P.2d 421, 427 (Alaska 1969); State v. Hatton, 568 P.2d 1040, 1046 (Ariz. 1977); Evans v. City of Bakersfield, 27 Cal. Rptr. 2d 406, 409 (Ct. App. 1994); State v. Richardson, 511 P.2d 263, 268 (Idaho 1973); Casselman v. State, 472 N.E.2d 1310, 1317 (Ind. Ct. App. 1985); State v. Austin, 381 A.2d 652, 654-55 (Me. 1978); Commonwealth v. Moreira, 447 N.E.2d 1224, 1227 (Mass. 1983); State v. Wick, 331 N.W.2d 769, 771 (Minn. 1983); State v. Nunes, 546 S.W.2d 759, 762 (Mo. Ct. App.

35

but New Jersey doing so by statute.150 All four states which did so through

statute used language which closely followed Section Five of the Uniform

Arrest Act.151 The New Jersey appellate court decision in State v. Koonce

referred to Warner, the Uniform Arrest Act, and the Model Penal Code for

justification in refusing to recognize the right.152 The New Jersey court

focused on two arguments: that “Force begets force and escalation into

bloodshed is a frequent probability,”153 and that arrestees had other, legal,

forms of recourse “[i]n this era of constantly expanding legal

protections.”154 The Koonce court also argued that police officers

“attempting in good faith, although mistakenly, to perform their duties ...

should be relieved of the threat of physical harm at the hands of the

1977); State v. Koonce, 214 A.2d at 433; State v. Doe, 583 P.2d 464, 467 (N.M. 1978); City of Columbus v. Fraley, 324 N.E.2d 735, 740 (Ohio 1975); State v. Gardiner, 814 P.2d 568, 576 (Utah 1991); State v. Peters, 450 A.2d 332, 335 (Vt. 1982); State v. Valentine, 935 P.2d 1294, 1304 (Wash. 1997); State v. Hobson, 577 N.W.2d 825 (Wis. 1998); Roberts v. State, 711 P.2d 1131, 1134 (Wyo. 1985).150. Max Hochanadel and Harry W. Stege, Note—Criminal Law: The Right to Resist Arrest: An Out-Dated Concept? 3 Tulsa L.J. 40 (1966). All four states which did so through statute used language which closely followed Section Five of the Uniform Arrest Act. The authors describe the Act as an attempt, on the part of the educated, informed persons to provide a compromise between unbounded liberty and an ordered society. Id.. at 47. For a discussion of the Uniform Arrest Act generally, see Warner, supra note 96. 151 Id. at 47.152. “[A] private citizen may not use force to resist arrest by one he knows or has good reason to believe is an authorized peace officer, whether or not the arrest is illegal.” State V. Koonce, 214 A.2d 428 At 436 (App. Div. 1965). 153 Koonce at 436. “[P]revention of death or serious injury, not only to participants in an arrest fracas but of innocent third persons, precludes tolerance of any formulation which validates an arrestee’s resistance of a police officer with force merely because the arrest is ultimately adjudged to have been illegal.” Id. at 435-436.154 Koonce at 436.

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arrestee.”155 In so ruling, the court broadened the good faith exception

contained in the common law rule that one might not resist an officer who

possessed a warrant for one’s arrest into a blanket assumption of good

faith, closing off the possibility of resistance even when the arresting officer

acted arbitrarily or with discriminatory purpose.

Koonce signaled not only the beginning of the end of the right to

resist, but also renewed attention to the issue, and at least five law review

articles addressed the issue between 1966 and 1970.156 The first was a

student written article that appeared in 1966, shortly after the decision in

Koonce.157 The authors noted that the right to resist arrest was recognized

in forty-five of the fifty states,158 but argued that the right should be

abrogated. Their argument closely mirrored Warner’s159 despite evidence

that some of the alternative remedies to an unlawful arrest were not

effective, and that neither civil nor criminal sanctions had proven effective

in preventing police abuses.160 Warner’s arguments were also reiterated in 155 Id.156 See, e.g., Chevigny, supra note 66; Smith, supra note 120; Note, Defiance of Unlawful Authority, 83 Harv. L. Rev. 626 (1970); Comment, The Right to Resist Unlawful Arrest, 2 N.C. Cen. L.J. 125 (1970). While the period between 1966 and 1970 represents the high water mark in interest in the right to resist arrest, interest did not end there. At least six more law review articles appeared in the 1970s. See notes 218-221, and text, infra. 157 Hochanadel and Stege, supra note 150. 158 Id., at 46. 159 Hochanadel and Stege, supra note 150, at 46. The authors also argue that the decisions in The Queen v. Tooley and Hopkin Huggett’s Case were based on dicta from a prior decision, Sir Henry Ferrers’s (sic) Case, 79 Eng. Rep. 924 (K. B. 1635), and thus the right to resist an unlawful arrest is ill-founded and based on an incorrect application of precedent. Examination of the cases does not seem to bear out their argument, however. 160 Regarding the efficacy of civil remedies, the authors cite a study by Wilson, Police Arrest Privileges in A Free Society: A Plea for Modernization,

37

a student note by Ralph Smith published the following year examining the

right to resist in New Mexico.161 Smith also concluded that the right to

resist an unlawful arrest was an undesirable anachronism,162 and asserted

that the right to resist was based on the concept of self-help, and that self-

help was only justified when there is no remedy available in the courts.163

Since the courts have developed adequate remedies for illegal arrests,

resistance was no longer so necessary as to justify the potential dangers to

the arrestee, officer and the public.164

Smith also made several original arguments in support of eliminating

the right to resist unlawful arrest. First, he noted the long-standing

problem with the common law rule that “a law-abiding citizen who might

seek to resist in good faith has no sound method by which to gauge the

legality of his conduct.”165 While accurate, this criticism misses the reason

behind the rule, which was to provide individuals with the choice to resist if

51 J. Crim. L., Criminology, and Pol. Sci. 395 91960). Id., at 47. Regarding the adequacy of criminal penalties, the authors cite a study by Foote, Tort Remedies for Police Violations of Individual Rights, 39 Minn. L. Rev. 493 (1955).161 Smith, supra note 120. Smith echoed many of the arguments previously stated, that jails are no longer death traps, that it “is primarily the guilty who resist unlawful arrests,” and that police are better trained in both how to arrest and the rules of arrest, so that the common law right is no longer desirable as a remedy to official misconduct. Finally, Smith repeats the argument of previous commentators that the appropriate means of addressing an unlawful arrest is with a civil action or criminal sanction. Yet the author admits that both of these after the fact remedies are inadequate—police officers are often judgement proof, and in any event juries are reluctant to find against the police in such cases. Id. at 121, 123-124., 128. 162 Id., at 121-123. 163 Id. 164 Id. 165 Id., at 124-125.

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they believed that the arrest was an abuse of police power. If they were

wrong, they paid the penalty, for they had no right to resist a lawful arrest,

and no court has allowed the defense of subjective belief in the illegality of

the arrest. Second, Smith observed that the right to resist an unlawful

arrest creates a “contretemps” of two “legally permissive uses of force”166—

these being the citizen’s right to resist an unlawful arrest and the police

officer’s right (and duty) to use the force necessary to make an arrest.

Smith incorrectly attributes legality to the actions of the police officer. An

officer’s right to use whatever force is reasonable to make an arrest only

applies when the arrest is lawful, and an officer has no right to use any

amount of force to make an unlawful arrest. If the arrest is unlawful, only

the arrestee has the right to use any amount of force under the common

law. Third, Smith argued that the right to resist arrest is an “artificial

right”167 because it fails to achieve its purpose of preventing the arrest,

“instead in getting [the arrestee] into more trouble than he ever would have

encountered had he not resisted in the first place.”168 Here, Smith ignores

the original justification for the common law right—to allow a person

provoked by an unlawful arrest to have a defense to the charge of resisting

arrest.169 Without this defense, a person who resists an illegal arrest is

subject to punishment not for the original alleged offense, but for

166 Id., at 125. 167 Id. 168 Id. 169 The Queen v. Tooley, 93 Eng. Rep. 349 (K.B. 1710).

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challenging, even correctly, the authority of the officer to make the

arrest.170

As the movement towards abrogating the right continued, the courts

began to add new doctrine which reflected original, and often disturbing,

arguments unforeseen by academic commentators. In particular, two cases

from 1969 identified novel justifications for the termination of the right to

resist unlawful arrest: People v. Curtis171 and Miller v. State.172 Curtis, a

California case, concerned the unlawful arrest of an African-American man

wearing a white shirt and tan pants, which matched a general description of

a burglary suspect in the area; rather than interrogate Curtis to determine

his previous whereabouts or his reason for walking in the neighborhood at

night (he lived a block away), the officer arrested him immediately and

without explanation. Curtis resisted, was overpowered, and, while acquitted

of the burglary charge, was convicted on the felony charge of battery on a

peace officer “engaged in the performance of his duties.” In Curtis, the

California Supreme Court cited a state law adopted a decade earlier which

had terminated the right to resist, but then dismissed Curtis’ conviction for

170 Smith also argues that the case law on resistance to unlawful arrest is “untidy and confusing” and is a “jumble of unlawful arrest, self-defense, and provocation.” Eliminating the right to remove arrest, Smith argued, would provide the case law with “greater clarity and consistency.” This argument fails because the lack of consistency in the law on unlawful arrest has resulted because modern courts’ struggle to justify the right in some way other than its original justification, provocation. Smith, supra note 120, at 127.171 450 P.2d 33 (Cal. 1969).172 462 P.2d 421 (Alaska, 1969).

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battery on a peace officer, arguing that, since an unlawful arrest lay outside

an officer’s duties, the charge should have been simple battery.173

Curtis is not so much remarkable for the court’s attempt to mitigate

the charge of battery against a police officer, as for the policy reasons

which the court provided in upholding California’s law. Because the

California legislature clearly had the power to abandon the common law

rule by statute, as they had done, the court had no reason to justify the new

rule. But the Curtis court moved beyond simple deference to justify the

abandonment of the right because of how police had become more

omniscient and more capable in their use of lethal force:

In a day when police are armed with lethal and chemical

weapons, and possess scientific communication and detection

devices readily available for use, it has become highly unlikely

that a suspect, using reasonable force, can escape from or

effectively deter an arrest whether lawful or unlawful.174

The court then articulated what can only be labeled a declaration of

surrender before the police state:

the state, in deleting the right to resist, has not actually altered

or diminished the remedies available against the illegality of an

arrest without probable cause; it has merely required a person

to submit peacefully to the inevitable and to pursue his available

remedies through the orderly judicial process.175

173 450 P.2d at 37-38.174 The quotation is taken from People v. Curtis, 450 P.2d 33, 36-37 .175 Id. (Emphasis added).

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Curtis thus ratifies the legislature’s deprivation of individual’s choice to

resist arrest on the grounds that such a choice simply no longer exists and

that in modern America we have no place to hide from the police and no

hope of overpowering them. Resisting arrest is not so much normatively

wrong as it is simply impossible; resistance is futile.

The second case, Miller v. State, came from Alaska, where it was used

to judicially abrogate the common law rule. Miller involved a traffic stop

which quickly escalated into a serious incident, with Miller armed with a

bayonet attempting to cut the officer and the officer with his revolver

drawn. Ultimately Miller’s friend convinced him to drop the bayonet, and he

was arrested, charged with, and convicted of, “stabbing at another with

intent to wound.”176 Although it found Miller’s arrest to be lawful, the

Alaska court also decided to address the question of whether the right to

resist unlawful arrest existed within that state. Ironically for a state which

encompasses more wilderness than any other, Justice Connor’s opinion for

the court based much of its argument on the idea that civilization existed to

end individuals’ need for, and use of, force to defend one’s proper interests:

The control of man’s destructive and aggressive impulses is one

of the great unsolved problems of our society. Our rules of law

should discourage the unnecessary use of physical force

between man and man. Any rule which promotes rather than

inhibits violence should be re-examined.177

176 462 P.2d 421 at 422-423.177 Id. at 426.

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Miller thus draws upon the Lockean theory that justice is impossible

without a state that can impose a decision with impartiality, because all

persons are prone to favor themselves in any dispute and to respond with

greater force than is necessary.178 This theory is accompanied in Miller by

the concern, appropriate to the case, that each party avoid the use of force,

but places primary responsibility for avoiding force on the arrestee:

Because officers will normally overcome resistance with

necessary force, the danger of escalating violence between the

officer and the arrestee is great. What begins as an illegal

misdemeanor arrest may culminate in serious bodily harm or

death.179

This policy argument is common to many (maybe most) of the cases

abrogating the right to resist unlawful arrest; in a 1998 case, the Wisconsin

Supreme Court argued that terminating the right was necessary as a way to

“deescalate” violence.180 But while it focuses on preventing violence and

injury, it fundamentally mistakes the use of police force in effecting arrests

for the creation of civilizing order. While lawful arrests are necessary to

restore order, unlawful arrests are themselves a threat to law and justice.

This would be placed in sharper relief as academic commentators began to

understand the right through its role in challenging arbitrary, and clearly

unconstitutional, authority.181

178 John Locke, Second Treatise of Government, Chapter 2.179 462 P.2d, at 426.180 State v. Hobson, 577 N.W.2d 286 (Wis., 1998).181 See Chevigny, supra note 66.

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V. The Civil Rights Movement, Disobedience of Unlawful Authority and the Right to Resist

The stakes involved in the increasingly statist discourse around the

right to resist became even more apparent as the civil rights movement

gained momentum during the 1950s and 1960s, an increasing number and

variety of public protests against segregation took place, including public

marches and rallies, picketing of segregated facilities, and “sit-ins.”182 While

statistics on the number of illegal arrests and number of charges of

resisting arrest during this time period are not available,183 the civil rights

movement and other protest movements, such as that opposing the Vietnam

War, led to an increase in the number of cases involving unlawful arrests

and attempts by the arrestee to resist arrest. Often, these demonstrations

were lawful, as when protestors marched pursuant to a permit. However,

even law-abiding protestors were often arrested by hostile police officers,184

and the protestors sometimes resisted arrest. Many of these arrests were

182 For a discussion of the civil rights movement, see generally, David J. Garrow, Protest at Selma (1995). 183 There are no statistics available concerning the number of arrests for resisting arrest, but the arrest overall went up. If the number of unlawful arrest is related to number of arrests, this would indicate number of unlawful arrests also increased. For a discussion of the frequency of mistaken arrests and convictions, see Ronald C. Huff, Arye Rattner, and Edward Sagarin, Guilty Until Proven Innocent: Wrongful Conviction and Public Policy. 32 Crime and Delinq. 518 (1986). 184 For example, city officials in Birmingham, Alabama refused to issue a permit for a civil rights march in April, 1963. When the marchers sought a permit form the city officials, Police Commissioner Eugene “Bull” Connor said “No, you will not get a permit in Birmingham, Alabama. I will picket you over to the City Jail.” Walker v. Birmingham, 388 U.S. 307, 317 note 9 (1967). The march then took place without the requisite permits, and the Police Commissioner ordered the arrest of the demonstrators.

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deemed unlawful by courts for a variety of reasons,185 and the 1960s saw a

sudden increase in the number of appellate cases concerning individuals

resisting unlawful arrest.186

Several of the law review articles published between 1965 and 1970

prefaced their discussion of the right to resist arrest with a discussion of

the civil rights movement and the methods protestors used to resist police

attempts to end the demonstrations, with one calling for the rule’s

abandonment anyway.187 Against the chorus calling for elimination of the

right to resist, Paul Chevigny, a staff attorney for the New York Civil

Liberties Union, wrote the first law review article advocating retention of

the common law right to resist an unlawful arrest in 1969.188 Chevigny was

inspired to write on the subject by his reaction to the arrest of civil rights

demonstrators and the Supreme Court decision in Wainwright v. New

Orleans189 the year before.190 Chevigny rediscovered the English courts’

justification of the right to resist an illegal arrest as based on the

provocation inherent in the unlawful arrest attempt and noted that the

common law courts treated the illegal arrest as a trespass against the

person of the arrestee.191 He also found that nothing in the courts’ opinions

referred to the condition of the jails at the time, or the lack of procedural 185 See, e.g. Wainwright v. New Orleans, 392 U.S. 598 (1967). 186 For instance, several courts overturned the common law right to resist arrest during this time period. See, e.g., State v. Koonce, 214 A.2d 428 (New Jersey 1965). .187 See, e.g. Hochanadel and Stege, supra note 150. 188 Chevigny, supra note 66. 189 392 U.S. 598 (1968). 190 Chevigny, supra note 66, at 1128-1129. 191 Id., at 1129.

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safeguards, or any of the other justifications for the rule that have been

offered by modern writers.192 Chevigny also noted that the common law

courts did not create an unlimited right to resist arrest, but instead limited

the right to “arrests . . . of the most outrageous kind,”193 those which were

“simply arbitrary assertions of authority.”194

Having built a useable history, Chevigny began his major project,

evaluating modern scholarly and judicial criticism of the common law

rule.195 Noting that the right to resist an unlawful arrest had been

eliminated by the legislature in six states as of 1969,196 and that

“[r]ecognition of the right has waned in the face of almost universal

criticism,”197 Chevigny described modern criticism of the right as based on

the view that the common law rule is “a vestige of a more brutal age when

society could tolerate street altercations between officers and citizens and

when a citizen deprived of constitutional rights had no effective redress.”198

This, Chevigny argued, is a misinterpretation of the right which “[d]oes not

192 Id., at 1130-1131. 193 Id., at 1131. 194 Id.195 Id., at 1132-1138. Chevigny notes that “[t]he decline of the common law rule dates at least from Professor Warner’s attack in the forties.” Id., at 1132-1133. He also notes that the American Law Institute rejected the common law rule “after a spirited debate.” Id., at 1132. 196 The states are cited as follows: Cal. Penal Code Sec. 834(a) (West Supp. 1968); Del. Code Ann. Tit. 11, Sec. 1905 (1951); N.H. Rev. Stat. Ann. Sec. 594.5 (1955); Ill. Ann. Stat. ch. 38, Sec. 7-7 (Smith-Hurd 1961); N.Y. Penal Law Sec. 35.27 (McKinney Supp. 1992); R.I. Gen. Laws Sec. 12-7-10 (1941). Id., at 1133, n. 30. 197 Id., at 1133. 198 Id.

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exist to encourage citizens to resist, but rather to protect those provoked

into resistance by unlawful arrests.”199

Chevigny also challenged critics’ argument that the existence of

remedies such as the availability of bail,200 procedural safeguards such as

the probable cause hearing,201 administrative controls over police

misconduct,202 and civil actions for injunction or money damages,203 indicate

that “constituted authority is now sufficiently civilized that citizens should

deal with it peacefully.”204 Chevigny argued that these remedies are

insufficient to protect the rights of citizens unlawfully arrested,205 and that

such arguments do not account for the problem of provocation created by

the illegal arrest.206 Instead, the real question should be whether an

individual should face criminal charges when forcefully defending his or her

rights during an unlawful arrest: 199 Id., at 1133-1134. 200 Id., at 1134. Chevigny notes that while bail is available to many more individuals than it was at common law, it is still not universal, and many defendants cannot afford even the lowest bail amount. 201 Id., at 1134-1135. Chevigny notes that such safeguards may exist in name only, as defendants often lack the proof necessary to establish a constitutional violation, and police officers may not testify truthfully. 202 Id., at 1135. Chevigny notes that administrative remedies have not proven adequate in controlling police abuses. 203 Chevigny, supra note 66, at 1135-1136. Chevigny notes that injunctions are rarely granted against the police, and that money damages are difficult to obtain. 204 Id., at 1136. 205 Id. 206 “The decision to resist is the work of the moment rather than the result of carefully considered alternatives. The real question is whether for this act of resistance the citizen ought to be convicted of a crime.” Id., at 1137. Chevigny points out that the common law rule provides no protection for those who resist a lawful arrest, and no protection for those who resist what they incorrectly perceive to be an unlawful arrest. A citizen who chooses to resist acts at their peril in this regard. Id.

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The freedom to refuse to obey a patently unlawful arrest is

essential to the integrity of a government which purports to be

one of laws, and not of men. Unless it is desirable to kill the

impulse to resist arbitrary authority, the rule that such an arrest

is a provocation to resist must remain fundamental.207

In this view, the right to resist unlawful arrest not only serves as a

remedy to police abuse, it is a fundamental element in remaining a

free nation.

According to Chevigny, the freedom to resist arbitrary authority

derives from the United States Constitution as well as English common law.

There were two possible constitutional bases for the right to resist,

according to Chevigny.208 The first is the “vindication of certain

constitutional rights.”209 Chevigny argued that a person should not be

required to submit to an arrest when he is exercising his First Amendment

rights, relying on such examples as the unlawful arrests of civil rights and

antiwar demonstrators during the 1960s.210 Chevigny’s second

constitutional argument for a right to resist an unlawful arrest is due

process. Under this theory, due process is implicated when an individual

resists an unlawful arrest because the Supreme Court “has . . .

acknowledged that due process protects an individual from being punished

207 Id., at 1147. 208 Id., at 1138-1139. Another possible constitutional basis for the right to resist an unlawful arrest, not mentioned by Chevigny, is the Fourth Amendment. See, e.g., Lerblance, supra note 52. 209 Id., at 1138. 210 Id.

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for violating an arbitrary police order, ”211 and an unlawful arrest is similar

to an arbitrary police order.212 Due process is also implicated, according to

Chevigny, when police officers provoke resistance by making a patently

unlawful arrest, because such conduct is analogous to entrapment, and the

state should not be permitted to prosecute a citizen for conduct primarily

caused by state actors’ outrageous conduct. 213

Chevigny acknowledged that not all forms of resistance should be

countenanced. Rather, he recommended that only “reasonable resistance”

to an unlawful arrest be judicially recognized.214 Reasonable resistance may

exist when (1) there is no underlying offense; (2) the officer believed that

the complaint was false; (3) there was personal animosity between the

police officer and the defendant; and (4) and the individual has been

repeatedly arrested. 215 Chevigny’s argument, still the strongest scholarly216

statement supporting the right to resist an unlawful arrest, rediscovered

the rule’s historic purpose of preventing the state using its agents’ unlawful

and provocative conduct to prosecute someone for a crime that they would

not otherwise committed. The reemergence of aggressive policing tactics,

including repeated arrests for minor offenses, and the continuing animosity

211 Id., at 1139 (citing Shuttlesworth v. City of Birmingham, 382 U.S. 87 (1965); Wright v. Georgia, 373 U.S. 284 (1963)). 212 Chevigny, supra note 66, at 1139. 213 Id. 214 Id. 215 Id., at 1147-1149. 216 For examples of equally strong judicial statements in favor of the common law rule, see State v. Valentine, 935 P.2d 1294, 1306-1320 (Wash. 1997) (Sanders, J., dissenting); State v. Hobson, 577 N.W.2d 285, 838-842 (Wis. 1998) (Abrahamson, C.J., concurring).

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between police and minority communities, create the potential for many

such encounters between law enforcement and individuals.217

VI. The Abrogation of the Right to Resist from 1970 to the Present

While academic commentators had presaged and largely driven the

move away from the right to resist unlawful arrest from the 1920s through

the 1960s, the initiative for abrogation of the right clearly shifted from

academe to state legislatures and courts during the 1970s and throughout

the 1980s and 1990s. Several law review articles discussing the growing

trend towards abrogation of the common law rule appeared during the

1970s and 1980s,218 and while they repeated the arguments already

presented by prior critics,219 these articles opposed the trend towards

elimination of the common law rule.220 Somewhat removed from the

violence and turmoil of the civil rights and anti-war movements of 1960s,

these authors were more receptive to arguments that the common law rule

remained vital, if in modified form.221 In the 1990s, two student notes and 217 See State v. Valentine discussion, infra notes 223-231 and text. 218 These include: James B. Lindsey, Comment, The Right to Resist Unlawful Arrest, 10 Akron L. Rev. 171 (1976); Note, The Right to Resist Unlawful Arrest, 38 La. L. Rev. 840 (1978); James Moskal, Note, Justification, Excuse, and Resisting Unlawful Arrest, 33 Wayne L. Rev. 1471 (1987); Hearne, supra note 63; Lerblance, supra note 52; Engel, supra note 37;. 219 See, e.g., Lindsey, supra note 218, at 174-176 (arguing that elimination of the right leaves citizens without an adequate remedy); Lerblance, supra note 52 (arguing that elimination of the right to resist is an overreaction, and suggesting a compromise position premised on the reasonableness of the circumstances). 220 See, e.g., Lindsey, supra note 218, (arguing for modification of the rule to allow resistance when it is an “uncalculated reaction”); Hearne, supra note 63 (arguing for modification of the rule to allow resistance when there is “reasonable provocation”); Hughes, supra note 83 (arguing for retention of the common law rule). 221 See, e.g., Lindsey, supra note 218, at 183-184.

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one law review articles have also been published discussing recent cases in

their respective jurisdictions.222

The justification of greater public safety and the argument that

modern due process rights rendered the right to resist less important

continued from the judicial decisions of the 1960s through most of the

decisions during the 1970s, 1980s and 1990s. However, two cases decided

in the last few years have brought into question the trend towards the

right’s abrogation. While both decisions resulted in the abrogation of the

right in their respective jurisdictions, strong opinions from justices

dissenting against the termination of the right posed important questions

for the continuation of the trend towards the elimination of the right. Those

questions are directly related to the function of the police in contemporary

society and the forms of abuse which create new justifications for a return

to the doctrine that an unlawful arrest constitutes provocation.

222 These articles include: F. Todd Lowell, Comment—When Should Force Directed Against A Police Officer Be Justified Under the Maine Criminal Code?—Toward A Coherent Theory of Law Enforcement Under the Code’s Justification Provision, 55 Maine L. Rev. 385 (1993); Alexandra W. Tauson, Recent Decision--Criminal Law—Resisting Arrest—Unlawful Arrest—The Pennsylvania Supreme Court Held That Resistance to an Arrest Found to be Unlawful Cannot Result in A Conviction for Resisting Arrest But Can Result in Conviction for Aggravated Assault, 55 Duquesne L. Rev. 755 (1996). Both of these briefly recite the development and recent erosion of the rule, focusing on the particular facts of the case before them. The third article is written by a former prosecutor, and focuses on a recent case from Washington involving particularly egregious police activity. Andrew P. Wright, Resisting Unlawful Arrests: Inviting Anarchy or Protecting Individual Freedom? 55 Drake L. Rev. 383 (1997) (arguing that the trend towards abrogation of the common law rule is unfortunate, and suggesting a compromise position premised on a theory of self-defense). The case in question is State v. Valentine, 935 P.2d 1294 (Wash. 1997), discussed below.

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A. State v. Valentine

A 1997 Washington Supreme Court case, State v. Valentine, poses the

contemporary problems of civility policing, racial harassment, and resisting

an arrest made in bad faith in its starkest terms.223 Ronald Valentine, an

African-American living in Spokane, had had several recent encounters with

the Spokane Police Department when he was pulled over. After sighting

Valentine wearing a black coat on a street corner, an officer had radioed

about a “suspicious person.” Another officer, named Moore, responded,

and, after Valentine had driven away in his car, stopped Valentine for

failing to signal for a turn. Officer Moore recognized Valentine at this point

as a person he had twice previously cited for failure to display a front

license plate and identified Valentine over the radio, causing several other

squad cars and a police motorcycle to converge on the scene, so that “the

entire downtown police force was in attendance.”224 Police testimony

differed from that of Valentine regarding what next transpired, but

Valentine may have been less than gracious about being stopped again.

What is clear is that Valentine was badly hurt in a physical encounter with

the police, sustained multiple injuries, and was subdued with a “carotid”

(choke) hold. The police justification for his arrest was that Valentine had

refused to sign the citation for failure to signal, but Valentine testified that

he had not so refused; instead, he signed the citation when it was presented

to him after he regained consciousness in the hospital and “was never

223 935 P.2d 1294 (Wash. 1997).224 Valentine at 1309 (Sanders, dissenting).

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charged with refusing to sign the citation.”225 It was also revealed at trial

that several of the offices involved in this altercation had encountered

Valentine in a bar the night before and told him at that time: “we are going

to get you.” Valentine was the subject of some discussion at roll call the

next morning, the day of his arrest. Charged with third degree assault,

Valentine claimed the right to resist arrest and asked for a jury instruction

that “A person arrested without lawful authority may forcibly resist that

arrest so long as the force is no more than is necessary as defined

elsewhere in these instructions.”226 However, the trial court judge instead

instructed the jury that “The use of force to prevent an unlawful arrest

which threatens only a loss of freedom, if you so find, is not reasonable.”227

Ultimately, Valentine was convicted of resisting what the trial court

conceded was an illegal arrest.

In resolving Valentine, the Washington Supreme Court followed the

trial court judge in finding that the right to resist only existed when

arrestee reasonably feared bodily harm.228 The distinction between the right

to resist when one feared bodily injury as opposed to the right to resist

when one faced “only” the loss of one’s freedom makes sense only when

understood in relation to the Valentine court’s adoption of Warner’s history

of the right, portraying it as an anachronism no longer necessary in an era

of due process rights and sanitary jails. By adopting this history, the

225 Id. 226 Id. at 1308 (Sanders, dissenting).227 Id. at 1296.228 Id. at 1304.

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Valentine court was able to claim that the common law rule’s origins in the

defense of provocation proceeded as well from the lack of due process and

decent jail conditions in 17th century England: “One can also understand

why, as the Tooley court said, an unlawful arrest was a great provocation

affecting ‘all people out of compassion’... The common law rule set out in

Tooley plainly resulted from conditions that no longer exist.”229 By following

Warner’s history, the Valentine court transformed Tooley and his fellows

from proud seventeenth century protectors of the rights of Englishmen into

modern legal reformers and social workers, who might have looked the

other way if only liberty, rather than sanitation and the speed of the legal

process, were at issue.

This distinction between unlawful arrests which “only” threaten one’s

liberty and those which pose a threat of injury was soundly attacked in the

dissent written by Justice Sanders and joined by Justice Madsen that argued

from the premise that only lawful authority need be respected. Mocking the

majority’s emphasis on avoiding violence, Justice Sanders wrote that it had

opine[d] that the established common law rule has outlived its

usefulness in our brave new world where resistance to unlawful

infliction of state coercive power is not only futile ... but also

invites ‘anarchy.’ Apparently the majority believes the unlawful

use of state force is not anarchy but order.”230

229 Id. at 1301.230 Id. at 1307.

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Throughout his dissent, Sanders compared official violence with private

violence, demanding that equal actions be treated equally.

Much of Sanders’ dissent focused on the facts of the case, adding

numerous details from the testimony of Valentine and others to show a

pattern of police harassment and call into question the officers’ assertions

that he was arrested because he had refused to sign the citation. In this, he

was joined by a concurrence by Justice Smith that read more like a dissent.

Smith wrote that he hoped that

this case will not provide law enforcement officers a license to

target a person as a “suspicious subject” merely because the

person is standing on a street corner at midday “wearing a

black coat,” to observe the person dirve away in an automobile

and follow the automobile until a turn signal violation occurs to

then stop the person, with the participation of at least four

police officers, and to engage in a course of conduct which

results in subduing, tackling and handcuffing the person.231

Smith’s approach to the case thus recognized that the arrest was not only

unlawful but part of a pattern of harassment; at the same time, he was

unwilling to support the common law rule for reasons which he did not

discuss. Still, Smith’s caution regarding the future of such cases has a

certain poignancy in its simultaneous recognition of police officers’ capacity

to infringe citizen’s civil rights, while also fearing the consequences of

allowing for a right to resist unlawful arrest.231 Id. t 1306.

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B. Wisconsin v. Hobson

While Valentine well demonstrates the need for a right to resist

stemming from police harassment, no contemporary case better illustrates

the reasons for returning to the principle of provocation as underlying the

right to resist unlawful arrest than Wisconsin v. Hobson.232 Hobson was

charged with obstructing a police officer, resisting an officer, battery to a

police officer, and disorderly conduct, after she refused to allow an officer

to take her five year old son to the police station to be questioned about a

stolen bicycle. The officer summoned three other officers before arresting

Hobson for obstruction; when two officers attempted to handcuff her, she

resisted and was knocked to the ground where she continued to struggle.

The charges against Hobson were dismissed by the trial level judge even

before trial, in an opinion which both recognized the common law right to

resist arrest and suggested that that rule was contrary to contemporary

public policy and encouraged dangerous situations for all.

The Wisconsin Supreme Court took up the trial court’s suggestion,

although only proactively so that Hobson did not have to face charges. In an

opinion by Justice Geske, the court acknowledged that Wisconsin had long

recognized the common law rule, but found that, as a matter of policy, the

right to resist should no longer be state law.233 Not only did the majority

acknowledge the common law rule’s existence in Wisconsin law, they also

recognized that it was grounded in provocation, relying heavily on

232 577 N.W.2d 825 (Wis., 1998).233 Id. at 826.

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Chevigny’s article for its history.234 But having taken care of the history of

the right, Geske’s opinion turned to a policy argument that began by

mentioning the degree to which other states had abandoned the common

law rule, and then found the rationale for this abandonment in the rise of

due process protections, quoting from Warner’s work and the California

Supreme Court’s argument in People v. Curtis that police capacity for use of

force was so overwhelming as to make resistance futile.235 The particular

conclusion of the majority was that resistance, even a “measured

response,”236 would often escalate into conditions that threatened the safety

of both officers and individuals. In its opinion, the majority also rejected the

formulation relied upon by the trial court judge, who would have allowed for

only reasonable force to be used in resisting arrest.

Chief Justice Shirley Abrahamson’s concurrence in the result in

Hobson mostly consisted of her dissent against Geske’s policy argument.

Abrahamson largely followed the lower court’s opinion that the officer’s

conduct was clearly beyond the proper bounds of police procedure, quoting

the lower court’s opinion that “Nothing would permit the officer to take a

five-year-old child to a police station for a junior version of the “third

degree.”237 And she noted the lower court’s belief that the officers took the

child into custody “because they were hacked off because she wouldn’t let

234 Id. at 829-830.235 Id. at 835-836236 Indeed, the court acknowledged that the characterization of “Ms. Hobson’s resistance as a ‘measured response’ . . . may be apt in this case.” Id. at 836.237 Id. at 839.

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them interview the child at her home.”238 The lower court’s opinion

furthermore portrayed the situation as a classic case of provocation, writing

that “it is difficult to imagine a mother who would allow her five-year-old

son to be dragged off to the station house and subjected to an illegal

interrogation.”239

However, Abrahamson’s most direct challenge to the majority opinion

lay in her refutation of the claim that the right to resist necessarily involves

an escalation of violence. Closely relying on the lower court’s findings,

Abrahamson focused on how measured Hobson’s resistance had been,

occurring entirely through her flailing about as the officers “took her to the

ground.”240 Hobson had not threatened officers with violence, had not

pursued officers in any way, and, according to the lower court, had been

assaulted by the police, rather than assaulting the police. By closely

following the entire fact situation, Abrahamson was not only able to portray

Hobson as the victim, but also to make the case that the right to resist was

important as a proactive right - as the reactive remedies cited as justifying

abandonment of the right would have done nothing to halt the greatest

threat in the situation, the proposed interrogation of Hobson’s five-year-old

son at the station.241 It is for such police provocations that the right to resist

was created and for which it should be revived.

238 Id.239 Id. at 842.240 Id. at 840.241 Id. at 841.

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VII. The Applicability of the Common Law Rule to Modern Society

It is undisputed that police work is a dangerous occupation, and that

police officers are not infrequently assaulted by person resisting arrest. It

is also clear that police have been shown to be at times predisposed to

using violence to make an arrest.242 Recent research suggests that police

officers may add the charge of resisting arrest as a means of proactively

protecting themselves from later accusations of police brutality.243 Given

these findings, the movement to eliminate the right to resist an unlawful

arrest seems overly solicitous of the interests of law enforcement.

The frequency with which individuals assault police, and the rate at

which such individuals are charged with resisting arrest becomes even

more important when examining the abrogation of the right to resist in the

context of such police tactics as civility policing and order maintenance. By

focusing on small “quality of life” infractions, police attempt to send a

message that disorder will not be tolerated, and that they, and not the

criminals, control the streets. It is not so much clear that such tactics

maintain order as that they maintain police, and state, authority, and it is

similarly problematic to assume that all of those arrests which result from

the enforcement of these norms were directly connected to imminent

criminal activity. Because the charge of resisting arrest can be used to

substitute for the absence of observable criminal behavior by individuals

242 Jerome H. Skolnick, Justice Without Trial (1966); William Westley, Violence and the Police (1970). 243 John Kavanagh, The Occurrence of Resisting Arrest in Arrest Encounters: A Study of Police-Citizen Violence, 22 Criminal Justice Review 16 (1997).

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considered suspicious by the police, the right to resist unlawful arrest is

today even more important as a check on police abuse of authority.

The way in which modern police organizations may conflate their own

control over street life with crime control is well illustrated in the recent

Supreme Court decision in City of Chicago v. Morales,244 which involved an

ordinance requiring “criminal street gang members” and persons

associating with gang members to disperse when so ordered by a police

officer who has found them “loitering” in a public place “with no apparent

purpose.”245 This ordinance provided police officers with almost unlimited

discretion to control any persons about on the streets of Chicago. form of

preventive police practice. The Chicago scheme was struck down by the

Supreme Court on grounds of vagueness; Justice Stewart writing that a law

cannot be constitutional if its violation depends upon whether or not a

policeman is annoyed.246 The ordinance did not criminalize loitering itself,

but rather the failure to disperse when so ordered by the officer, thus

allowing police officers to regulate the public presence of those they

consider undesirable.

While the Court decided Morales by a margin of six to three, its

reasoning was contained in a collection of concurring and dissenting

opinions, with no entire opinion commanding a majority. Justice Stevens

delivered what came closest to a majority opinion in arguing that the

Chicago ordinance was unconstitutionally vague because it did not provide 244 City of Chicago v Morales, 119 S.Ct. 1849 (1999).245 Id., at 1854. 246 Id..

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sufficient notice to individuals that their activities might result in a

dispersal order, as they could not know when they would not appear to have

“an apparent purpose” to a police officer247 and because the ordinance gave

too much discretion to officers in its enforcement. Other justices concurred

in opinions emphasizing the problem of vagueness,248 lack of proper

notice,249 and protesting the idea that the order to disperse was only a

minor restriction on individual freedom.250

The practices exemplified in Morales have the capacity for racial

discrimination, a serious concern which continues to affect both the politics

of resisting arrest laws and the practice of charging individuals with

resisting arrest. The last time such issues came to the fore was the 1960s

and early 1970s. Several cases which came to the United States Supreme

Court concerned use of such charges to harass African-Americans who

insisted on their rights or did not pay traditional deference to the police.

One breach of the peace case, Wright v. Georgia, involved a group of

African-Americans who were playing basketball in a segregated park when

they were told to leave by police officers. After one of the players asked, “by

what authority?,” they were arrested for breach of the peace, although

there was no evidence that they had caused any disruption.251

247 Id. at 1859.248 Id., at 1863-1865 (concurring opinion of O’Connor, J., joined by Breyer, J.). 249 Id., at 1865 (concurring opinion of Kennedy, J.). 250 Id., at 1865-1867 (concurring opinion of Breyer, J.). 251 Wright v. Georgia, 373 U.S. 284 at 286 (1963).

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Another form of police harassment often visited African-Americans in

the South was the enforcement of vagrancy ordinances, which required an

individual to be properly employed, and which seemingly allowed arrest

simply on the basis of one’s reputation for dishonesty. In one form, such

ordinances might allow for the arrest of suspicious persons “who wanders

about the streets or other public ways or who is abroad at late or unusual

house in the night without any visible or lawful business and who does not

give satisfactory account of himself,” in the words in the words of an

ordinance struck down by the Supreme Court in 1971.252 Invalidated by the

Supreme Court in Papachristou v. Jacksonville,253 vagrancy laws had the

dual purpose of crime control, by making persons account for their

presence and activities, and providing a cheap labor supply by criminalizing

unemployment. What was most problematic for the Court was that “[f]uture

criminality ... is the common justification for the presence of vagrancy

statutes.254

Proactive policing is linked to resisting arrest because of the greater

number of opportunities for police-civilian interaction and because

individuals are more likely to take offense for what they may view as

harassment unconnected to any particular or serious offense. When

resistance to an illegal arrest is made criminal, an initially unlawful arrest

becomes lawful, and an individual may be charged with a crime even

though they committed no crime prior to being provoked by the police. In 252 Palmer v. City of Euclid, 402 U.S. 544 (1971).253 405 U.S. 156 (1972).254 Id. at 169.

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such a situations, the police, who already have the advantage in such

encounters, have further incentive to abuse their authority.255

Many of the cases involving resisting arrest follow incidents where a

challenge to the officer’s authority has already been transformed into the

pretext for an arrest. In State v. Doe, the New Mexico case abrogating the

right to resist arrest, a passenger in a car stopped for suspicious driving

resisted arrest for disorderly conduct after “arguing with the officers in a

loud voice.”256 In K.G. v. State, a juvenile was charged with resisting arrest

after officers arrested her for “open profanity” after she had followed their

order to move.257 In State v. Austin, the individual was arrested for

disorderly conduct for uttering an obscenity while pointing to the officer’s

car; he kicked both officers while being taken into custody and transported

to the station.258 In these cases, the crime of creating some form of public

disorder was, at its root, the offense of giving offense to police.

It is not only the police who may feel disresepcted during such

encounters. The act of resisting arrest often comes at a time when

arrestees are feeling particularly threatened or disrespected. In an

Oklahoma case, one James Sandersfield was so charged after the police

attempted to arrest him for obstructing an officer for standing closer than

police wished while they arrested a friend of his. As Sandersfield was being

255 Such a point was made by Justice Douglas in 1968, in his dissent to the per curiam dismissal of certiorari in Wainwright v. New Orleans, 392 U.S. 598, 614-615 (Douglas, J., dissenting). 256 State v. Doe, 583 P.2d 464 (N. M. 1978).257 K.G. v. State, 338 So.2d 72 (Fla.App. 1976).258 State v. Austin, 381 A.2d 652, 653 (Me. 1978).

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handcuffed, he turned and hit the officer, saying “If I’m going to jail, then I

might as well as given you a fucking reason.”259 In the Louisiana case of

Melancon v. Trahan, a police officer unlawfully arrested an individual for

“refusing to move on when told to by officers,” and was pushed into wall for

his trouble; the confrontation occurred as the officer and his partner were

clearing the streets after a race riot.260 Under such circumstances, both

police and civilians may be far too quick to act and react.

The issue of police-civilian respect becomes much more complicated

in cases involving race, as demonstrated in one Ohio case. The police were

summoned to an interracial neighborhood quarrel by a white family; after

being called “motherfucker” and “pigs,” and being told that “if [blacks] had

called the police, they wouldn’t have got this much motherfucking police

protection,” the police attempted to arrest Imogene Fraley for disorderly

conduct.261 Fraley physically resisted her arrest, and was subsequently

charged with using violence against a police officer.262 While the Ohio

Supreme Court found that the obscenity used by Fraley was protected by

the First Amendment, making her arrest illegal, they also ruled that the

right to resist arrest was no longer good law in Ohio, citing the Uniform

Arrest Act, Model Penal Code, and statutes and decisions in other states.263

The court’s decision may have made sense within the context of a public

policy discussion of violent crime, but it only added fuel to the problem of 259 Sandersfield v. State, 568 P.2d 313 (Okl.Cr. 1977).260 Melancon v. Trahan, 645 So.2d 722, 724-725 (La.App. 3 Cir 1994).261 City of Columbus v. Fraley, 324 N.E.2d 735, 736 (Ohio 1975).262 Id. at 737.263 Id., at 739-740.

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community suspicion of police, and possibly furthered the perception that

arbitrary police conduct will go unpunished.

The common law rule originally stood on the theory that police

provocation created anger and a response that was excused by

outrageousness of police conduct. This rationale is particularly applicable

today, because of new, aggressive police tactics. Recognizing the right to

resist unlawful arrest as a defense, and constructing that right so that it

only excuses such resistance as resulted from provocation by the police,

protects individuals from outrageous police conduct. Moreover, it does not

create an increased likelihood of resistance because people make the

decision to resist an unlawful arrest in a deliberate and rational manner.

Those who resist arrest would most likely resist arrest regardless of the

legal consequences. A return to the common law rule would only excuse

those who are wrongfully arrested who can convince a judge or jury that

the manner of their arrest was sufficient to provoke resistance.

VIII. Conclusion

In his book The Process is the Punishment, Malcolm Feeley observed

that due process revolution of the 1960s did not make the maintenance of

one’s rights any easier or less expensive for the many arrestees who wished

to merely “plea out” minor offenses so that they might return to their work

or families far sooner than if they had insisted on those due process

rights.264 While the Warren Court had pronounced a theoretical right to

counsel regardless of personal wealth, increased the likelihood that a 264 Feeley, supra note 34.

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defendant who requested jury trial would receive one, and improved

expectations regarding one’s treatment throughout the criminal process,

these protections did little to alleviate the deprivation of individuals’ liberty

before their first court appearance. This interest in personal liberty is not

recognized by the modern trend abrogating the right to resist unlawful

arrest. Instead of continuing the common law tradition of opposing

individual rights against state authority, the contemporary law of arrest has

come to value the statist values of order, process and power with little

regard for whether that power is exercised lawfully.

An illegal arrest irreparably deprives citizens of their right to liberty

and civil remedies for those unlawfully arrested are not very effective.

First, a person must show a violation of the individual’s Fourth Amendment

rights by demonstrating a lack of probable cause for the arrest.265 Second,

the aggrieved individual must overcome the qualified immunity enjoyed by

police officers by demonstrating that the officer violated a “clearly

established”266 right. Only the most egregious police misconduct falls under

this definition, and it can be difficult to prove to the courts that the

abridgement of one’s liberty is of such great weight to warrant the

awarding of damages. Thus, in the 1971 case of Boyle v. Landry, the

Supreme Court declined to hold the Illinois law prohibiting resisting arrest 265 Probable cause has been defined as when an officer demonstrates that “the facts and circumstances within [his] knowledge and of which [he has] reasonably trustworthy information [are] sufficient to warrant a prudent [person] in believing that the [suspect] has committed or was committing an offense.” Del Carmen, supra note 12. 266 Anderson v. Creighton, 483 U.S. 635, 640 (1987). This is referred to as the “objective reasonableness” standard. Del Carmen, supra note 12.

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unconstitutional because the original complainants had not been able to

show that they faced irreparable injury.267

This preference for retroactive vindication of rights is misplaced in

the post-Warren Court era. The right to resist unlawful arrest comes under

suspicion because of a traditional understanding that the violation of

personal integrity should be remedied after the fact, largely in the form of

compensation.268 This was particularly true in the case of resisting arrest

because the “centuries old common-law rule is rooted in the view that an

action by an official in excess of his authority constituted a trespass.”269

Such a trespass has traditionally be considered a tort at law. However, one

of the major changes that underlay the due process revolution of the 1960s

was the Warren Court’s emphasis on using proactive measures to prevent

the infringement of constitutional rights, rather than traditional forms of

penalties; two of the most notable examples are the exclusionary rule

preventing admission of illegally obtained evidence that was developed in

Mapp v. Ohio,270 and the “Miranda rule” requiring that a defendant receive

notice of his constitutional rights at the time of arrest, developed in

Miranda v. Arizona.271 These two rules have resulted in greater

professionalization of police procedure as well as greater respect for

individuals’ rights.

267 Boyle v. Landry, 401 U.S. 77 (1971).268 David Luban, “The Warren Court and the Concept of a Right,” 34 Harv. Civ. Rights Civ. Liberties L. Rev. 7, 13-14 (1999). 269 Lerblance, supra note 52.270 367 U.S. 643 (1961). 271 377 U.S. 201 (1966).

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Such a proactive approach is particularly appropriate for the right to

resist unlawful arrest. However, a strong argument can be made that the

right against unlawful arrest can also be based upon the U. S. Constitution.

This argument is largely based upon the Fourth Amendment’s prohibition of

“unreasonable searches and seizures.” The Fourth Amendment was

mentioned as a source of the right to resist arrest in Chief Justice Warren’s

dissent in Wainwright v. New Orleans , although he did not fully develop the

argument.272 However, in the Utah case of State v. Bradshaw, that state’s

Supreme Court found that the application of laws prohibiting resisting

arrest to those resisting unlawful arrests “is in violation of both the Utah

and United States Constitutions . . . in that it permits and authorizes an

arrest without probable cause and with lawful basis for the arrest.”273

The public nature of any arrests later found to be unlawful has

weakened this argument’s application in the past. In State v. Ramsdell, the

Rhode Island Supreme Court argued that resistance to an illegal arrest

should not be protected because “the essential needs of public safety

demand a promote police inquiry into any suspicious or unusual street

activity. It is not only the right but the duty of police officers to investigate

suspicious behavior both to prevent crime and to apprehend offenders.”274

Such arguments typically cite Terry v. Ohio, the Supreme Court case

272 392 U.S. 598, at 603-608 (Warren, C.J., dissenting).273 State v. Bradshaw, 54 P.2d 800, 801 (Utah 1975). Bradshaw appears to have been overturned in State v. Gardiner, 814 P.2d 568 (Utah 1991).274 State v. Ramsdell, 285 A.2d 399, 402 (1971).

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authorizing investigatory stops when police suspect an individual but lack

probable cause for an arrest or a search.275

But Terry v. Ohio depends on a distinction between one’s expectation

of privacy at home or in other private places and one’s expectation of

privacy in a public place. While such a distinction is logical and appropriate

when applied to searches, it should not apply to the seizure of one’s person.

Unfortunately, where the courts have recognized the right to resist unlawful

arrest as a form of the right against unreasonable seizures, they have

largely done so in a manner that follows the law of searches. Thus, in State

v. Gallagher, a Connecticut court recognized the right to resist an unlawful

entry, but not the right to resist arrest,.276 Officers arrested Gallagher after

he refused to leave his house for further questioning about a neighborhood

dispute; both Gallagher and his wife were then involved in fisticuffs with the

police. While the Connecticut Supreme Court ruled that a state statute “can

only be read as abrogating the common law rule,”277 they decided to

“continue to adhere to the common law view that there are circumstances

where unlawful warrantless intrusion into the home creates a privilege to

resist, and that punishment of such resistance is therefore improper.”278

This view of the right against unreasonable seizure as tied to place

was reiterated in Casselman v. State, an Indiana case, where the defendant

resisted a civil arrest for failure to appear at bankruptcy proceedings;

275 392 U.S. 1 (1968). 276 465 A.2d 323 (Conn., 1983).277 465 A.2d 323 at 327.278 465 A.2d 323 at 328.

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Casselman had simply closed his door when informed by the sheriff’s

deputy of the reason for his visit. The court found that, although the officer

had a proper warrant, civil warrants of attachment did not authorize

officers “to interfere unlawfully with a citizen’s right to be secure in his

home.279 Moreover, the court in Casselman relied in part of the provocation

justification for the right to resist, declaring that “the more patently

unlawful the intrusion, the more excusable the resistance becomes.”280

Casselman unfortunately privileges the protection of place over that of

personal security from unlawful police conduct; in all of these cases the

traditional prerogatives underlying the Fourth Amendment are applied to

the right against seizure as if it were dependent on the sort of expectation

of privacy which underlies the law of searches.

The biggest obstacle to basing the right to resist on the principle of

probable cause is judicial deference to police authority, which appears to be

rooted in some form of institutional comity. In United States v. Heliczer, the

Court of Appeals for the Second Circuit defined police authority in a manner

contrary to the common law tradition, declaring that an officer is engaged

in the performance of official duties so long as “[h]e is simply acting with

the scope of what the agent is employed to do. The test is whether the

agent is acting within that compass or is engaging in a personal frolic of his

own.”281 Heliczer has had a wide impact, and has been relied upon by many

courts to avoid determinations regarding whether arrests are lawful or not, 279 Casselman v. State, 472 N.E.2d 1310, 1318 (Ind.App. 3 Dist. 1985).280 Id., at 1317. 281 United States v. Heliczer, 373 F.2d 241, 245 (2d Cir. 1967).

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so long as police actions were job related.282 Under this definition, authority

follows the badge, not the law, with judicial review of the provocativeness

and/or lawlessness of police actions largely foreclosed.

Having authority follow the badge, rather than the law has important

consequences for how courts understand the right to resist as related to the

defense of provocation; this is well-illustrated in State v. Wick, where

Minnesota’s Supreme Court opined that “while a defendant would have a

right to resist an officer in order to defend himself or another against

unjustified bodily attack, assaultive conduct is not justifiable solely on the

ground that the officers are violating the defendant’s fourth amendment

rights or on the ground that the defendant believes that the officers are

violating his rights.”283 Individuals’ Fourth Amendment rights, in other

words, are not worth fighting for, and are only worth litigation as liberty is

less important than bodily integrity.

This a consequence of the modern conflation of the right to resist with

the right of self-defense. Illegal arrest is a form of battery (or assault,

depending on the jurisdiction) and the tort of false imprisonment. The

seizure of a person by an officer without legal justification is a serious

deprivation of personal liberty and the right of privacy. And the common

law right to resist “was premised on defense, that is, an officer in making

an unlawful arrest is an attacker who can be reasonable resisted like any

282 Lerblance, supra note 52, at 674.283 State v. Wick , 331 N.W.2d 769, 771 (Minn. 1983).

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other attacker.”284 The dissent in State v. Valentine,285 notes that, in

Washington at least, the people retain such rights as “the right to use force

to defend property against trespass and invasion,” and “a right to respond

with force no matter how reasonable flight may be” when assaulted while

conducting oneself lawfully.286 Such different rules for state and citizen

violates any theory of popular sovereignty and political equality, and “those

who violate their public trust by stepping beyond the boundaries of their

lawful authority are privileged to become the usurping masters of the public

there were originally entrusted to serve.”287

Finally, the abrogation of the right to resist unlawful arrest

substitutes reliance on the courts for personal autonomy, requiring even

greater faith in our legal institutions. This may be difficult for some to

stomach because, as Justice Sanders wrote in his dissent in People v.

Valentine: “When government agents commit assault and battery against

the very citizens they are sworn to protect, the government is no longer our

friend: it is our dangerous enemy.”288

284 Lerblance, supra note 52, at 681.285 935 P.2d 1294, at 1312 (Sanders, J., dissenting).286 Id., at 1318.287 Id., at 1307.288 Id. at 1312.

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