John-Henry Hill, M.D., Ph.D. shared this post via CopBlock.org’s submit page.
by John-Henry Hill, M.D.,
Ph.D.September 30, 2013JohnHenryHill@Yahoo.comLiberty. 1. Exemption from slavery, bondage, imprisonment, or control of another. 2. Freedom from external restraint or compulsion (Webster’s New Collegiate Dictionary).
Liberty. Freedom; exemption from extraneous control. The power of the will to follow the dictates of its unrestricted choice, and to direct the external acts of the individual without restraint, coercion, or control from other persons. (Black’s Law Dictionary – 3rd Edition)
Beginning with the Magna Carta, the governments in Britain and later the United States of America have recognized the right of the people to forcefully resist unlawful arrest by the government agents (including police), using deadly force if necessary. It was long recognized as a Natural and Common Law right of not only the person being arrested, but also of one’s fellow countrymen trying to assist him in resisting such an unlawful arrest.
The Hopkin Huggett’s Case and Queen v. Tooley confirmed the long-recognized Common Law right to resist unlawful arrest (as judged by the people; not the government agents); and this right applies not only to the person being arrested, but also to other people who intervene on the victim’s behalf.
1.) The arrest is lawful and no excessive force is used by the officer; (worst-case scenario for a defense)
2.) The arrest is lawful and excessive force is used by the officer.
3.) The arrest is unlawful and no excessive force is used by the officer;
4.) The arrest is unlawful and excessive force is used by officer. (best-case scenario for a defense)
NOTES:
“Citizens may resist unlawful arrest to the point of taking an arresting officer’s life if necessary.” Plummer v. State, 135 Ind. 308, 34 N.E. 968 (1893) — Supreme Court of Indiana.
“An arrest made with a defective warrant, or one issued without affidavit, or one that fails to allege a crime is within jurisdiction, and one who is being arrested, may resist arrest and break away. lf the arresting officer is killed by one who is so resisting, the killing will be no more than an involuntary manslaughter.” Housh v. People, 75 111. 491; reaffirmed and quoted in State v. Leach, 7 Conn. 452; State v. Gleason, 32 Kan. 245; Ballard v. State, 43 Ohio 349; State v Rousseau, 241 P. 2d 447; State v. Spaulding, 34 Minn. 3621.
“When a person, being without fault, is in a place where he has a right to be, is violently assaulted, he may, without retreating, repel by force, and if, in the reasonable exercise of his right of self-defense, his assailant is killed, he is justified.” Runyan v. State, 57 Ind. 80; Miller v. State, 74 Ind. 1.
“These principles apply as well to an officer [police officer or other government agent] attempting to make an arrest, who abuses his authority and transcends the bounds thereof by the use of unnecessary force and violence, as they do to a private individual who unlawfully uses such force and violence.” Jones v. State, 26 Tex. App. I; Beaverts v. State, 4 Tex. App. 1 75; Skidmore v. State, 43 Tex. 93, 903.
“An illegal arrest is an assault and battery. The person so attempted to be restrained of his liberty has the same right to use force in defending himself as he would in repelling any other assault and battery.” (State v. Robinson, 145 ME. 77, 72 ATL. 260).
“Each person has the right to resist an unlawful arrest. In such a case, the person attempting the arrest stands in the position of a wrongdoer and may be resisted by the use of force, as in self- defense.” (State v. Mobley, 240 N.C. 476, 83 S.E. 2d 100).
“One may come to the aid of another being unlawfully arrested, just as he may where one is being assaulted, molested, raped or kidnapped. Thus it is not an offense to liberate one from the unlawful custody of an officer, even though he may have submitted to such custody, without resistance.” (Adams v. State, 121 Ga. 16, 48 S.E. 910).
“Story affirmed the right of self-defense by persons held illegally. In his own writings, he had admitted that ‘a situation could arise in which the checks-and-balances principle ceased to work and the various branches of government concurred in a gross usurpation.’
There would be no usual remedy by changing the law or passing an amendment to the Constitution, should the oppressed party be a minority. Story concluded, ‘If there be any remedy at all … it is a remedy never provided for by human institutions.’ That was the ‘ultimate right of all human beings in extreme cases to resist oppression, and to apply force against ruinous injustice.’” (From Mutiny on the Amistad by Howard Jones, Oxford University Press, 1987, an account of the reading of the decision in the case by Justice Joseph Story of the Supreme Court.
As for grounds for arrest: “The carrying of arms in a quiet, peaceable, and orderly manner, concealed on or about the person, is not a breach of the peace. Nor does such an act of itself, lead to a breach of the peace.” (Wharton’s Criminal and Civil Procedure, 12th Ed., Vol.2: Judy v. Lashley, 5 W. Va. 628, 41 S.E. 197)
“Common as the event may be, it is a serious thing to arrest a citizen, and it is a more serious thing to search his person; and he who accomplishes it, must do so in conformity to the law of the land. There are two reasons for this; one to avoid bloodshed, and the other to preserve the liberty of the citizen. Obedience to the law is the bond of society, and the officers set to enforce the law are not exempt from its mandates.” Town of Blacksburg v. Bean 104 S.C. 146. 88 S.E. 441 (1916): Allen v. State, 197 N.W. 808, 810-11 (Wis 1924)
“Where officers do not conform to the ‘law of the land’ [Common Law] they have no authority and the right to resist them exists. A Public Officer, as with a citizen, who unlawfully threatens life or liberty, is susceptible to be injured or killed; for by such acts ‘they draw their own blood upon themselves’ As stated in some cases, ‘where a peace officer has no right to make an arrest without warrant he is a trespasser and acts at his own peril.” 6A CJS (Corpus Juris Secundum),
[The reader should note that the CJS confirms that the “law of the land” (i.e., Common Law) is the standard by which an officer and potential arrested are to be judged – NOT statutory law. The natural right under Common Law to self-defense against unlawful arrest is NOT subject to limitations or restrictions imposed by legislative statutes or acts – unless that man voluntarily agrees to waive his rights in Common Law jurisdiction and freely subjects himself to jurisdiction under such statutes.
“A person has a lawful right to resist an arrest by an unlawful authority, i.e., an officer without a valid warrant.” Franklin, 118 Ga. 860, 45 S.E. 698 (1903)
“What of the resistance to the arrest? The authorities are in agreement that since the right of personal property is one of the fundamental rights guaranteed by the Constitution, any unlawful interference with it may be resisted and every person has a right to resist an unlawful arrest. * * * and, in preventing such illegal restraint of his liberty, he may use such force as may be necessary.” City of Columbus v. Holmes, 152 N.W. 2d, 301, 306 (Ohio App. 1058)
“It is the law of self-defense and self-preservation that is applicable. “One has an “unalienable” right to protect his life, liberty or property from unlawful attack or harm.” “* * * it is not an offense to liberate one from the unlawful custody of an officer, even though he may have submitted to such custody without resistance.” Adams v. State, 121 Ga 163, 48 S.E. 910 (1904)
“An illegal arrest is an assault and battery. The person so attempted to be restrained of his liberty has the same right, and only the same right to use force in defending himself as he would in repelling any other assault and battery.” State v. Robinson, 145 Me. 77, 72 Atl, 2nd.260, 262 (1950)
“A citizen illegally arrested “cannot initiate the use of force” and neither do “words alone justify an assault.” However, “when the officer initiates the assault by physical contact, which is usually the case, and there is an unlawful arrest, the citizen has the right to protect his liberty to the extent of killing the officer.” See Green v. Kennedy, 48 N.Y. Rep. 653, 654 (1871) and/or Hicks v. Matthews, 266 S.W. 2nd. 846, 849 (Tex. 1954)
“What rights then has a citizen in resisting an unlawful arrest? An arrest without warrant is a trespass, an unlawful assault upon the person, and how far one thus unlawfully assaulted may go in resistance is to be determined as in other cases of assault. Life and liberty are regarded as standing substantially on one foundation; life being useless without liberty, and the authorities are uninformed that where one is about to be unlawfully deprived of his liberty he may resist the aggressions of the officer, to the extent of taking the life of the assailant, if that be necessity to preserve his own life, or prevent infliction upon him of some great bodily harm.” State v. Gum, 68 W. Va. 105, 69 S.E. 463, 464 (1910)
“It is the law that a person illegally arrested by an officer may resist that arrest, even to the extent of the taking of life if his own life or any great bodily harm is threatened.” State v. Rousseau, 40 Wash. 2nd, 92, 241 P. 2nd. 447, 449 (1952); Porter v. State, 124 Ga. 297, 52 S.E. 283, 287 (1905); see also State v. Mobley, 240 N.C. 476, 83 S.E. 2nd 100, 102 (1954); Wilkinson v. State, 143 Miss. 324, 108 So. 711, 712-13 (1926); American Jurisprudence, 2nd Ed., “Arrest”, Section 94, pp. 778-780; Thomas v. State, 91 Ga. 204, 18 S.E. 305 (1892); Presley v. State, 75 Fla. 434, 78 So. 532, 534 (1918); Burkhard v. State, 83 Tex. Crim. 228, 202 S.W. 513; Mullins v. State, 196 Ga. 569, 27 S.E. 2nd. 91 (1943); Ownes v. State, 58 Tex. Crim. 261, 125 S.W. 405 (1910); Caperton v. Commonwealth, 189 Ky. 652, 655, 225 S.W. 481, 481 (1920)
In the Texas Penal Code, Sec. 9.31 (C):
Sec. 9.31 (C)
Sec. 9.31 (C) The use of force to resist arrest or search is justified:
(1) If, before the actor offers any resistance, the peace officer (or person acting at his direction) uses or attempts to use greater force than necessary to make the arrest; and
(2) when and to the degree the actor reasonably believes the force is immediately necessary to protect himself against the peace officers (or other persons) use or attempted use of greater force than necessary.
.S. Supreme Court ruling in 1900
JOHN BAD ELK, , v. UNITED STATES.
177 U.S. 529 (20 S.Ct. 729, 44 L.Ed. 874)
JOHN BAD ELK, Plff. in Err., v. UNITED STATES.
No. 350.
Decided: April 30, 1900.
The right to forcefully resist an unlawful arrest by government agents (police)
• opinion, Peckham [HTML]
Messrs. Thos. B. McMartin and S. B. Van Buskirk for plaintiff in error.
Assistant Attorney General Boyd for defendant in error.
Mr. Justice Peckham delivered the opinion of the court:
The plaintiff in error was convicted in April, 1899, in the circuit court of the United States, in South Dakota, of the murder on March 13, 1899, of John Kills Back at the Pine Ridge Indian reservation, in South Dakota, and sentenced to be hanged. The case is brought here on writ of error to the circuit court.
‘From the evidence as it appears in this action, none of the policemen who sought to arrest the defendant in this 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.’
The evidence as to the facts immediately preceding the killing was contradictory; the prosecution showing a killing when no active effort was at that very moment made to arrest, and the defendant showing an intended arrest and a determination to take him at that time at all events, and a move made by the deceased towards him with his pistol in sight, and a seeming intention to use it against the defendant for the purpose of overcoming all resistance. Under these circumstances the error of the charge was material and prejudicial.
By § 1014 of the Revised Statutes, the officers of the United States named therein and certain state officers may, agreeably to the usual mode of process against offenders in such state, order the arrest of an offender for any crime or offense committed against the United States. This section has no application.
No rule or regulation for the government of Indians upon a reservation has been cited, nor have we found any, which prohibits the firing of a gun there, ‘for fun,’ nor do we find any law, rule, or regulation which authorizes an arrest, without warrant, of an Indian not charged even with the commission of a misdemeanor, nor does it anywhere appear that Gleason had authority to issue a warrant for an alleged violation of the rules or regulations.
CC∅ | Transformed by http://www.Public.Resource.Org
Sec. 7139. An arrest may be either——
1. By a peace officer, under a warrant;
2. By a peace officer, without a warrant; or,
3. By a private person.
1. By a peace officer, under a warrant;
2. By a peace officer, without a warrant; or,
3. By a private person.
Sec. 7141. If the offense charged is a felony, the arrest may be made on any day and at any time of the day or night. If it is a misdemeanor, the arrest cannot be made at night, unless upon the direction of the magistrate indorsed upon the warrant.
Sec. 7144. The officer must inform the defendant that he acts under the authority of the warrant, and must also show the warrant if required.
Sec. 7145. If, after notice of intention to arrest the defendant, he either flee or forcibly resist, the officer may use all necessary means to effect the arrest.
Sec. 7148. A peace officer may, without a warrant, arrest a person——
1. For a public offense committed or attempted in his presence.
2. When the person arrested has committed a felony, although not in his presence.
3. When a felony has in fact been committed, and he has reasonable cause for believing the person arrested to have committed it.
4. On a charge, made upon reasonable cause, of the commission of a felony by the party arrested.
1. For a public offense committed or attempted in his presence.
2. When the person arrested has committed a felony, although not in his presence.
3. When a felony has in fact been committed, and he has reasonable cause for believing the person arrested to have committed it.
4. On a charge, made upon reasonable cause, of the commission of a felony by the party arrested.
Sec. 7150. He may also at night, without a warrant, arrest any person whom he has reasonable cause for believing to have committed a felony, and is justified in making the arrest, though it afterward appears that the felony had not been committed.
Sec. 7151. When arresting a person without a warrant, the officer must inform him of his authority and the cause of the arrest, except when he is in the actual commission of a public offense, or is pursued immediately after an escape.
Sec. 7153. When a public offense is committed in the presence of a magistrate, he may, by a verbal or written order, command any person to arrest the offender, and may thereupon proceed as if the offender had been brought before him on a warrant of arrest.
Sec. 7154. A private person may arrest another——
1. For a public offense committed or attempted in his presence.
2. When the person arrested has committed a felony, although not in his presence.
3. When a felony has been in fact committed, and he has reasonable cause for believing the person arrested to have committed it.
Sec. 7155. He must, before making the arrest, inform the person to be arrested of the cause thereof, and require him to submit, except when he is in the actual commission of the offense, or when he is arrested on pursuit immediately after its commission.
End of Article
Title 42 - THE PUBLIC HEALTH AND WELFARE
CHAPTER 83 - ENERGY EXTENSION SERVICE
SUBCHAPTER III - TRANSFERS OF FUNCTIONS
Sec. 7155 - Repealed. Pub. L. 103-272, §7(b), July 5, 1994, 108 Stat. 1379.
Disclaimer: These codes may not be the most recent version. The United States Government Printing Office may have more current or accurate information. We make no warranties or guarantees about the accuracy, completeness, or adequacy of the information contained on this site or the information linked to on the US site. Please check official sources.
Definition of LIBERTY:
**********
(Common Law supersedes statutory law – which is “private law” – unless an individual knowingly and freely consents to waive his natural
“unalienable” and Common Law rights and consents to submit to statutory or contractual
policy. I say “statutory policy” because, strictly speaking,
“LAW” refers only to the public Common Law, whereas legislative acts (as statutes, acts, codes, regulations, ordinances, etc.) are “private law” whose
jurisdiction is extremely limited. (One might draw the analogy of a man who
joins a private club or buys a house in a neighborhood controlled by a private
homeowners’ association. The club or association has the right to determine the
rules for its members, along with the penalties for breaking those rules.
Strictly speaking, these rules (often called “by-laws” are NOT true “law”; they
are so-called “private law” — that is, the rules or policies apply ONLY to
members of this private group.
The man is not forced to join
the club or association;
he does so through his voluntary consent in a contract, in which commercial law
applies. He
pays his “dues” in exchange for being a member of the club/association, with
its attendant duties-obligations and benefits-privileges – thus “consideration”
is exchanged. As a
member, the man has consented to the jurisdiction of the club/association in
club/association-related matters only.
A non-member who is not inside
the club/association’s buildings, on its land or attending some private event
staged by the club/association, is NOT bound by the rules or policies of the
club/association.
However, should a
non-member voluntarily consent to abide by the club-association’s
rules/policies in
exchange for being allowed inside the club-association’s building along with
other benefits and privileges, that non-member has
therein contracted with the club-association and is under its jurisdiction
regarding rules/policies of conduct – at least as long as he remains within the club-association’s
building and/or is enjoying some other benefits and privileges normally
associated with membership in that club-association. Such rules and policies created
under a private contract are known as “private law” – in this case, “commercial
law” (as well as “contract law”) which evolved from “merchant law” or the “law
of the seas”. (The “mer” in the word merchant is derived from the Phoenician/Canaanite-Latin-French
word of “mer” or sea.)
In short, “law” refers to public
Common Law – the “law of the land”.
“Commercial law”
(contract law, equity law, merchant law, maritime law, statutes and acts, the
“law of the seas”, and
more recently Uniform Commercial Code – UCC) is “private law” created through voluntary contracts. As such, “commercial law”
is, in fact, NOT law at all, but
private policy (rules of conduct) applicable only to the parties to that contract.
In Britain and America, the primary law remains Common Law.
“Commercial or
statutory law” is inferior to Common Law and no man is subject to “commercial-statutory
law” jurisdiction UNLESS he contracts into it (as did our man above who join voluntarily contracted to be club-association
member) or he, as a non-member, voluntarily accepts
some of the benefits and privileges of membership in exchange for agreeing to
its rules and obligations (as did our non-member guest above).
This non-member example still falls under private
“commercial law”, since the agreement between the
non-member and the club also constituted a contract in
which consideration was exchanged. The
primary point is that, in Britain and America, Common
Law supersedes “commercial-contract law” or “statutory law”, unless that man voluntarily waives his rights under Common Law and places
himself under the jurisdiction of private “commercial law” or “statutory
law” — that is, POLICIES established by legislative statutes, acts, codes,
regulations, ordinances, etc.
Around 1670 in Britain, the Queen’s Bench ruled that forceful resistance
to unlawful arrest by police was a right of the people. (the Hopkin Huggett’s Case) Huggett and his friends had come
to the aid of a man who had been arrested by a constable named Berry. Huggett
demanded to see the arrest warrant. When Berry produced a clearly spurious document, Huggett drew his sword and
demanded the prisoner’s release. Berry refused, and finished second in the ensuing
swordfight. The wrongfully
arrested man in that case (who was threatened with impressment into the
military) did nothing to resist his abduction. It wasn’t clear that Huggett
knew the man, or had even met him prior to the incident. Yet the Queen’s Bench
ruled that Huggett’s actions were justified, since a situation in which a “man [is] unduly arrested or restrained of his
liberty … is a provocation to all other men of England, not only his friends
but strangers also [,] for common
humanity’s sake.”
In 1710. the Queen’s Bench ruling re-confirmed the common law right to forcefully resist an unlawful arrest. Queen v.
Tooley (1710).
Anne Dekins was quietly walking down the street when Police
Officer Samuel Bray saw her on the street and began to haul her away. Apparently Dekins had a used rather forceful language in past encounters
with Officer Bray. Dekins forcefully resisted and screamed for help, resulting
in the intervention of a group of men who witnessed the entire incident, led by
a man named Tooley. They confronted Bray and demanded to know what he was doing
to the woman. The Officer Bray produced his official credentials and insisted that
he was making a lawful arrest for “disorderly conduct.” When witnesses disputed that description, Bray called for backup.
The court ruled that, in trying to
enforce an invalid warrant, Bray
“did not act as a constable, but a common oppressor”. Tooley and the other bystanders were properly “provoked” by the act
of aggressive violence against Anne Dekins, and their forceful but measured response – first demanding that the abductor
release the hostage, then exercising defensive force to free her – was entirely
appropriate. Lawless
violence against the helpless, the Court continued, “is a sufficient provocation to all people out of compassion” in any circumstance, “much more where it is
done under a colour of justice, and where the
liberty of the subject is invaded….” Such an act carried out by a law enforcement official is nothing less than “a provocation to all the subjects of England.” Every Englishman “ought to be
concerned for Magna Charta and the
laws. And if any one against the law imprison a man, he is an offender against
Magna Charta.”
Simply put: When a police officer commits
the crime of unlawful arrest, the citizens who intervene are acting as peace
officers entitled to employ any necessary means – including lethal force – to
liberate the victim. As
Algernon Sidney wrote” the violence of a wicked magistrate who, hav[ing] armed
a crew of lewd villains would otherwise inflict his will on innocent and
helpless people with impunity”.
This same Common Law right still
exists in America today. Until 1942,
when the Interstate Commission on Crime published the
Uniform Arrest Act, every
state recognized
and protected the right
to resist. The
first major case regarding the right to forcefully resist unlawful arrest was
decided by the Supreme Court of Indiana in 1893. In Plummer v. State, 135 Ind. 308, 34 N.E. 968 (1893)
the defendant Plummer was
convicted in trial court of manslaughter of a police officer. The Supreme Court of Indiana ruled
that, by the judge not giving adequate instructions to the jury regarding
self-defense and the alternatives of conviction on a lesser charge or even
acquittal, the trial court erred; and Plummer’s manslaughter conviction was
reversed. The Supreme Court of Indiana stated that, although the police officer
may or may not have held the authority to make a lawful, warrantless arrest of Plummer for a
misdemeanor not witnessed by the police officer, for purposes of argument in reaching a decision the
court would assume the worst-case scenario possible for this defendant – that
is, that the police officer had the lawful authority to make the arrest.
(Similar to my case).
The court then stated that a
police officer, in effecting an arrest, is allowed to use force, but only that
force which is necessary. The defendant Plummer had not
resisted or behaved violently, as he had not even been told by the police
officer that he was under arrest.
Plummer had merely walked toward
his home with a revolver in his hand and told the officer to keep away. Since
the police officer (specifically,
the marshal of the town) shot a pistol and then struck the defendant Plummer a
with a nightstick before
even telling Plummer he was under arrest, the police officer had committed a battery by the use of
excessive force.
(Similar to my Case as Officer
Matthews Committed Battery Before even Telling Me I was Under Arrest).
Pistols shots were exchanged
resulting in the death of the police officer. Plummer was
indicted and convicted of manslaughter. The Supreme Court of Indiana
concluded that defendant Plummer had “a clear right to defend
himself, even to taking
the life of his
assailant.”
To fully understand the implications
and precedent established by the Plummer case, it is vital to understand the
assumptions on which the court was operating. Both British and American courts had long ago
confirmed the right under Common Law of a man to forcefully resist an unlawful
arrest AND to
resist such as arrest with all the
violence needed (matching violence for violence) to secure his freedom – even to
the extreme of killing the arresting officer. Four possible scenarios exist during an arrest:
The assumption of the court was
to review each of these scenarios.
As illustrated by the order of
the scenarios above, of
greatest importance is
the fact that under Common
Law, unlawful arrest carried far more weight in terms of an affirmative defense than did the use of excessive police by the police.
Under Common Law a defendant clearly has the least defense if worst-case defense scenario #1 is
true, i.e., the arrest
is lawful and no excessive force is used by the officer. Also under Common Law a defendant
has an absolute affirmative defense if best-case defense scenario #4 is true,
i.e., the arrest is unlawful and excessive force is used by officer.
The court reasoned that since
scenario #3 provided a stronger defense than scenario #2, if scenario #2 provided a defense for the
defendant Plummer, then
the stronger defense offered in scenario #3 (which included the “unlawful arrest” component) need not even be
considered by the court. Again, the component of “unlawful arrest” carried far greater weight than
“excessive police force” in a defense under Common Law.
The court’s ruling in Plummer that the defendant was justified in
his actions under scenario #2 (arrest is lawful and excessive force is used by the officer) meant
that the much stronger defense offered by scenario #3 need not even be considered. In
short, since Plummer
was justified in resisting arrest if excessive police force was used in a
lawful arrest (scenario
#3), then Plummer would
have even greater justification in resisting arrest if NO excessive police
force was used during an unlawful arrest (scenario #3).
By implication, defendant Plummer
would possess the strongest justification for forcefully resisting arrest under scenario #4 in which excessive police force is
used in an unlawful arrest. It is this distinction that modern courts have
misunderstood or ignored: that the most important factor under Common Law for the right to forcefully
resist arrest is whether the arrest was lawful or unlawful – NOT whether or not
the police used excessive force! “Citizens may resist unlawful arrest to the point of taking
an arresting officer’s life if necessary.” (Plummer v. State, 135 Ind. 308, 34 N.E. 968 (1893). — the Supreme Court of Indiana).
In 1900 the Supreme Court of the
United States mirrored and affirmed the earlier 1893 Plummer v. State ruling by the Supreme Court
of Indiana. Under the
still-controlling U.S. Supreme Court precedent, John Bad Elk vs. U.S,. 177 U.S. 529, 44 L.Ed.
874, 20 S.Ct. 729, (1900)
and subsequent court decisions, a man faced with the prospect of
unlawful arrest – that is, an armed abduction – has a lawful right to use any
appropriate means, including lethal force, to defend himself. Further, other
people witnessing an unlawful arrest possess the same Common Law right to
prevent such an arrest, using lethal force if necessary – even if the Plummer
v. State man being arrested has not contested or resisted his own arrest.
The Bad Elk case was unusual in
that the killing occurred on Indian tribal land (the Pine Ridge Indian
reservation, in South Dakota) and involved two members of that tribe, both of
whom were tribal police officers.
The defendant had killed a man and
was convicted in a jury trial of first-degree murder. Despite the fact that
tribal lands and tribe members fall under “federal zone” jurisdiction similar to U.S. territories where, strictly speaking, the
protections of the Constitution do NOT apply, these issues were avoided. Similarly, the issues of each Indian man as a
“sovereign’ and the Indian tribes as “sovereign nations” was also avoided. Instead, the case ultimately was decided
based on the trial judge’s faulty jury instructions regarding the jury’s option
of conviction for a lesser charge, based on the Common Law rights to self-defense and to resist an unlawful arrest.
The Court stated: “Where
the officer is killed in the course of the disorder which naturally accompanies an attempted arrest that is
resisted, the law looks with very different eyes upon the transaction, when the officer had the right to
make the arrest, from what it does if the officer had no right [to make the
arrest, i.e., an unlawful arrest]. What may be murder in the first case might
be nothing more than manslaughter in the other, or the facts might show that no
offense had been committed.”
As in Plummer, the Supreme Court
in Bad Elk emphasized that the most important factor under Common Law for the
right to forcefully resist arrest is whether the arrest was lawful or unlawful
– NOT whether or not the police used excessive force!
Subsequent court decisions
gradually whittled away at the Common Law right to forcefully resist an
unlawful arrest; citing the Plummer and Bad Elk cases but with emphasis on the police
officer’s use of excessive force as the factor allowing resistance, instead of
the unlawful nature of the arrest. Wilson v State, 842 N.E.2d at 447 (citing Fields v.
State, 382 N.E.2d 972, 976 (Ind. Ct. App. 1978); WHARTON’S at § 126.
The Wilson court in
particular noted that a person may not resist an unlawful arrest where the
officer does not use unlawful force.
Other cases citing Plummer
likewise noted that while a person may defend himself against an officer’s unlawful use of force, they may not resist an unlawful arrest being made peaceably and without
excessive force; in
affect, turning these Common Law rights on their heads. In recent years the
court decisions have “bounced
around” on the issues
of “the use of
excessive force during an arrest” versus “the unlawfulness of an arrest” as the primary justification for forcefully resisting
arrest; and in so doing, these courts appear to have shunted aside the Common
Law rights and
substituted statutory “privileges”. (See the NOTES below for these cases.) By 1995, citing Plummer the Seventh
Circuit Court of Appeals clearly attempted to transmute these Common Law rights
into “privileges”
granted by the state. That
court the privilege exists “not because its use is necessary to protect him from an unlawful arrest, but because it is the only way in which he
can protect himself from
death or serious bodily harm.” Gibbons v. Higgins, 73 F.3d 364 (7th Cir. 1995) (unpublished decision).
Until the late 1960s, most states recognized – albeit grudgingly – the Common Law
right to resist arrest. By 1969, that right had been transmuted – not
by statute or Constitutional amendment, but through judicial jewish activism – into a
revocable “privilege” (Civil Rights, as in Communist Nations) –
one that had to be dispensed with to serve the interests of the
police and the state in securing convictions. The Alaska State Supreme Court (Terry Glenn Miller v. State of
Alaska) was one of the first states to
suppress this right, stating, “It is argued that if a peace officer is making
an illegal arrest but is not using force” – something that could not occur,
given that an arrest, by strict definition, an act of armed coercion – “the remedy of the citizen
should be that of suing the officer for false arrest, not resistance with
force.” Illogically, that same ruling also stated, “The weight of authoritative
precedent supports a right to repel an
unlawful arrest with force…. This was the rule at common law. It
was based on the proposition that everyone should be privileged to use reasonable force to prevent an unlawful invasion of
his physical integrity and personal liberty.” In short, the court ruled that people have a long-recognized common law
right to resist, but they cannot exercise that right.
A few years later the Idaho
State Supreme Court also attempted to nullify the right to resist. (Richardson
v. Idaho) John Richardson was convicted of resisting arrest
through violence and sentenced to five years in prison. Richardson and his
ex-wife, who were having dinner in a restaurant, got into an argument, and were
asked to leave when the latter became loud and profane. Two off-duty, uniformed
police officers escorted them outside, and then tried to arrest
Richardson for “disorderly conduct” after he became annoyed by their unwarranted intrusion.
Richardson kicked one of the police officers, then grabbed one of their
pistols, which he fired into the air, rather than at his assailants (as he was entitled to, both morally and – under the
Supreme Court’s still-valid 1900 Bad Elk precedent –
legally).
Citing the Miller decision in
Alaska, the Idaho Supreme Court stated “More than one state has, without
legislative action, modified the traditional common law rule and has adopted
the rule that a private citizen may not use force to resist a peaceful arrest,” – despite the fact that any
arrest entails the use of force. “We are of the opinion that the trend is,
and should be, away from the traditional common law rule, and therefore we hold
that if a person has reasonable ground to believe 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.” The Idaho Supreme Court in a 2008 ruling (State of Idaho
v. Lusby)
again eviscerated the right to
resist even an illegal invasion and search of one’s home by police officers.
The trial court had ruled the evidence from the illegal
search to be inadmissible and had dismissed all charges against Lusby.
But, in a bizarre twisting of logic,
the Idaho State Supreme Court, while admitting that the search was illegal,
insisted that Lusby’s resistance to the illegal invasion of her home retroactively legalized the
unconstitutional search. Therefore, without any enabling legislation, contrary to the still-controlling U.S.
Supreme Court precedent (John
Bad Elk vs. U.S.), and
contrary to hundreds of years of common law, the Idaho State Supreme Court created out of thin
air a “Duty
to Submit to Arrest” – a police officer’s privilege to commit criminal acts
for the purpose of nullifying the Exclusionary Rule – something the Idaho Supreme Court acknowledged. In
short this court said that any police officer can nullify the Fourth Amendment anytime he
pleases, simply by claiming that the victim committed the supposed crime of
resisting.
According to centuries of common
law and the still-controlling U.S. Supreme Court precedent of John Bad Elk, the American people today still
possess the right to
resist unlawful arrest by government agents, Paul Chevigny in a 1969 Yale Law
Journal essay made the critical distinction between
“power” and “authority”:
that while a police
officer may have the
physical power to abduct or abuse an innocent person, citizens have a lawful authority
to prevent that crime.
“The right to resist unlawful arrest memorializes one of
the principal elements in the heritage of the English revolution: the belief that the
will to resist
arbitrary authority in
a reasonable way is
valuable and ought not to be suppressed by the criminal law,” However, it must be said that the
courts themselves, in
emphasizing privileges
granted under statutes over Common Law rights, have placed a potential arrestee in a
less-than-favorable position in relation to the police – especially compared to Common
Law rights affirmed in
the Tooly-Dekins and Hopkin Huggett cases of three or more centuries ago.
In America we see to be moving “backwards” with regard to rights and
freedoms. That this
ancient right to forcefully resist state-licensed criminal violence during unlawful
arrest by government agents – as determined by the man being arrested
and his neighbors witnessing the arrest – is ignored and
suppressed by prosecutors and the
lower courts does not extinguish that right.
This premise was upheld by the
Supreme Court of the United States in the case: John Bad Elk vs. U.S, 177 U.S. 529, 44 L.Ed. 874,
20 S.Ct. 729, (1900)
The Court stated: “Where the
officer is killed in
the course of the disorder which naturally accompanies an attempted arrest that
is resisted, the law looks with very different
eyes upon the transaction, when the officer had the right to make the arrest, from what it does if
the officer had no right. What may be murder in
the first case might be nothing more than manslaughter in the other, or the facts might show that no
offense had been committed.” [Note that the John Bad Elk v U.S. decision
remains the controlling precedent to this day, although many judges, prosecutors and even juries
ignore it.]
“Arrest” Section 16 page 30; A sheriff who “acts without process,” or “under a
process void on its face, in doing such act, he is not to be considered an officer but a personal trespasser.” Roberts v. Dean, 187 So. 571,
575 (Fla. 1939)
Note that almost every court
decision refers to the right of self-defense against an “unlawful” arrest, rather than an
“illegal” arrest. In
these courts decisions, the term “unlawful” means contrary to Common Law only. Conversely, the
terms “illegal” and “legal” encompass only legislative acts/statutes, as the word LEGal is derived from
LEGislative. Formerly in America
arrests were usually carried out by “peace officers” such as sheriffs, who were
duty-bound by Common Law to
enforce the peace. As commercial law (e.g., statutory law,
UCC-based acts/statutes and codes) began to subsume Common Law,
“peace officers” were replaced by “police officers” (“policy officers”), appropriately named
because they enforce private POLICY created by legislative ACTS (statutes)
rather than the public LAW
(i.e., Common Law).]
Both the deceased and the plaintiff in error were Indians
and policemen, residing on the reservation at the time of the killing.
Upon the trial it appeared that the plaintiff in error, on
March 8, 1899, while out of doors, fired a couple of shots from his gun at or
near the place where he resided. Soon after the firing, one Captain Gleason,
who stated that he was what is called an ‘additional farmer’ on the same
reservation, having heard the shots, and meeting the plaintiff in error, asked
him if he had done that shooting, and he said that he had; that ‘he had shot
into the air for fun;’ to which Gleason responded by saying to him, ‘Come
around to the office in a little while, and we will talk the matter over.’
Thereupon they separated. As he did not come to the office, Gleason, after
waiting several days, gave verbal orders to three of the Indian policemen to go
and arrest plaintiff in error at his mother’s house near by and take him to the
agency, some 25 miles distant. No reason for making the arrest was given, nor
any charge made against him. The policemen, one of whom was the deceased, went
to the house where the plaintiff in error was stopping, and came back and
reported to Gleason that he was not there, and they were then ordered to return
and wait for him and to arrest him. They returned to the house, but came back
again and reported that the plaintiff in error said that he would go with them
to the agency in the morning; that it was too late to go with them that night.
Gleason then told them to watch him and see that he did not go away, and in the
morning to take him to the Pine Ridge agency.
The policemen then again went back to the house where
plaintiff in error was staying and met him coming towards his mother’s place.
He went into the house, and one of their number followed him; found him
smoking, and told him that they had come to take him to the agency at Pine
Ridge. Plaintiff in error refused to go, and the policeman went outside.
Another of them then went into the house, and in a few minutes both he and the
plaintiff in error came out, and the latter saddled his horse and went over to
the house of a friend, and they followed him. It was getting dark when he came
back to his mother’s house, still followed by them, and while following the
plaintiff in error to his house on this last occasion they were joined by
others, so that when he went into the house there were four or five men
standing about it. In a short time the plaintiff in error came out, and asked
of those outside, ‘What are you here bothering me for?’ The deceased said:
‘Cousin, you are a policeman, and know what the rules and orders are.’ To which
plaintiff in error replied: ‘Yes; I know what the rules and orders are, but I
told you I would go with you to Pine Ridge in the morning.’ Then, according to
the evidence for the prosecution, the plaintiff in error, without further
provocation, shot the deceased, who died within a few minutes.
The policemen had their arms with them when they went up to
where the plaintiff in error was at the time the shooting was done.
This is substantially the case made by the prosecution.
There is an entire absence of any evidence of a complaint
having been made before any magistrate or officer charging an offense against
the plaintiff in error, and there is no proof that he had been guilty of any
criminal offense, or that he had even violated any rule or regulation for the
government of the Indians on the reservation, or that any warrant had been
issued for his arrest. On the contrary, Gleason swears that his orders to
arrest plaintiff in error were not in writing, but given orally. Indeed, it
does not appear that Gleason had any authority even to entertain a complaint or
to issue a warrant in any event.
The plaintiff in error testified in his own behalf, and said
that during the day he had been looking after the schools along the creek near
the station; that that was his duty as a policeman; that he arrived at his
mother’s house about half past four in the afternoon, and soon afterwards an
Indian named High Eagle came into the house, staid a minute or two, but did not
speak, then went out doors, and Lone Bear came in, and said that he was
directed to take the plaintiff in error to Pine Ridge to Major Clapp. To which
the plaintiff replied: ‘All right, but my horse is used up, and I shall have to
go to my brother’s, Harrison White Thunder’s, and get another horse.’ Lone Bear
said all right. Then the plaintiff in error started for his brother’s, and when
he got there found that the horses were out on the range, and when they came in
his brother promised to bring one of them down to him. In this he was
corroborated by his brother, who testified that he brought the horse over about
dark. On his way back to his mother’s the plaintiff in error stopped at a
friend’s and got a Winchester rifle for the purpose, as he said, of shooting
prairie chickens. When he went back to his mother’s he was there but a short
time when the deceased and two or three others came to his house to arrest him,
and the plaintiff in error went out, and according to his testimony the
following was what occurred: ‘I asked John Kills Back and High Eagle what they
were there bothering me all the while for. John Kills Back said: ‘You are a
policeman, and know what the rules are.’ I said: ‘Yes, I know what the rules
are, but I told you that I would go to Pine Ridge agency in the morning.’ Then
the deceased moved a little forward, and put his hand around as if to reach for
his gun. I saw the gun and shot; then I shot twice more, and John Kills Back
and High Eagle ran off. John Kills Back fell after he had gone a short
distance. I shot because I knew that they (John Kills Back and High Eagle)
would shoot me. I saw their revolvers at the time I shot.’ This was in
substance all the evidence.
Counsel for plaintiff in error asked the court to charge as
follows:
The court denied the request and counsel excepted.
The court charged the jury, among other things, 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. It is claimed on the part
of the defendant that he made no resistance, and he was willing to go with the
officer in the morning. I charge you, of course, that the officer, John Kills
Back, had a right to determine for himself when this man should go to the
agency with him.
* * * * * ‘In this connection I desire to say to you,
gentlemen of the jury, that the deceased, being an officer of the law, had a
right to be armed, and for the purpose of arresting the defendant 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 beyoud the force necessary to arrest defendant, and
was about to kill him or to inflict great bodily injury upon him, which was not
necessary for the purpose of making the arrest.’
This charge was duly excepted to.
We think the court clearly erred in charging that the
policemen had the right to arrest the plaintiff in error, and to use such force
as was necessary to accomplish the arrest, and that the plaintiff in error had
no right to resist it.
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 offense of the party resisting
arrest would be reduced from what would have been murder if the officer had had
the right to arrest, to manslaughter. What would be murder if the officer had
the right to arrest might be reduced to manslaughter by the very fact that he
had no such right. So an officer, at common law, was not authorized to make an
arrest without a warrant, for a mere misdemeanor not committed in his presence.
1 Arch. Crim. Pr. & Pl. 7th Am. ed. 103, note (1); also
page 861 and following pages; 2 Hawk. P. C. 129, § 8; 3 Russell on Crimes, 6th
ed. 83, 84, 97; 1 Chitty’s Crim. L.* p 15; 1 East, P. C. chap. 5, p. 328;
Derecourt v. Corbishley, 5 El. & Bl. 188; Fox v. Gaunt, 3 Barn & Ad.
798; Reg. v. Chapman, 12 Cox C. C. 4; Rafferty v. People,
69 Ill. 111, 18 Am. Rep. 601; S. C. on a subsequent writ, 72 Ill. 37.
If the officer had no right to arrest, the 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. 1 East, supra.
We do not find any statute of the United States or of the
state of South Dakota giving any right to these men to arrest an individual
without a warrant, on a charge of misdemeanor not committed in their presence.
Marshals and their deputies have in each state, by virtue of § 788, Revised
Statutes of the United States, the same powers in executing the laws of the
United States as sheriffs and their deputies in such state may have by law in
executing the laws thereof. This certainly does not give any power to an
officer at the Pine Ridge agency to arrest a person without warrant, even
though charged with the commission of a misdemeanor. These policemen were not
marshals nor deputies of marshals, and the statutes have no application to
them.
Referring to the laws of South
Dakota, we find no
authority for making such an arrest without warrant. The law upon the subject
of arrests in that state is contained in the Compiled Laws of South Dakota
1887, § 7139, and the following sections, and it
will be seen that the common law is therein substantially enacted. The sections
referred to are set out in the margin.
It is plain from this review of the subject that the charge
of the court below, that the policemen had the right to arrest this plaintiff
in error, without warrant, and that, in order to accomplish such arrest, they
had the right to show and use their pistols so far as was necessary for that
purpose, and that the plaintiff in error had no right to resist such arrest,
was erroneous. That it was a material error, it seems to us, is equally plain.
It placed the transaction if a false light before the jury, and denied to the
plaintiff in error those rights which he clearly had. The occasion of the
trouble originated in Gleason’s orders to arrest him, and in the announced
intention on the part of the policemen, which they endeavored to accomplish, to
arrest the plaintiff in error that night and take him to the agency, and all
that followed that announcement ought to be viewed in the light of such
proclaimed intention. And yet the charge presented the plaintiff in error to
the jury as one having no right to make any resistance to an arrest by these
officers, although he had been guilty of no offense, and it gave the jury to
understand that the officers, in making the attempt, had the right to use all
necessary force to overcome any and all opposition that might be made to the
arrest, even to the extent of killing the individual whom they desired to take
into their custody. Instead of saying that plaintiff in error had the right to
use such force as was absolutely necessary to resist an attempted illegal
arrest, the jury were informed that the policemen had the right to use all
necessary force to arrest him, and that he had no right to resist. He, of
course, had no right to unnecessarily injure, much less to kill, his assailant;
but where the officer is killed in the course of the disorder which naturally
accompanies an attempted arrest that is resisted, the law looks with very
different eyes upon the transaction, when the officer had the right to make the
arrest, from what it does if the officer had no such right. What might be
murder in the first case might be nothing more than manslaughter in the other,
or the facts might show that no offense had been committed.
The plaintiff in error was undoubtedly prejudiced by this
error in the charge, and the judgment of the court below must therefore be
reversed, and the case remanded with instructions to grant a new trial.
John-Henry
Hill, M.D., Ph.D.
1994 US Code
§7155. Repealed. Pub. L. 103–272, §7(b), July 5, 1994,
108 Stat. 1379
Section, Pub. L. 95–91, title III, §306, Aug. 4, 1977, 91
Stat. 581, transferred to Secretary the functions set forth in Interstate Commerce
Act and vested by law in Interstate Commerce Commission or Chairman and members
thereof as related to transportation of oil by pipeline. See section 60501 of
Title 49, Transportation.
No comments:
Post a Comment