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pullnshoot25
12-26-2009, 11:01 AM
So CGF is getting 25 (+2.5 from Wildhawker) from this bet. Who it comes from (myself or galekowitz) depends on the verdict of the great legal minds here at Calguns, preferably hoffmang or oaklander. You all can join in too!

The impetus for this bet stems from this thread (http://www.calguns.net/calgunforum/showthread.php?p=3545849)

And below are all the quotes relevant to the discussion.

To what extent are we allowed to defend ourselves against unlawful arrest? Are we supposed to just take it, fight it in court, lose our firearms, time, property, jobs, families and more in the process in the hopes that we might win, while the offenders walk away scot free?


We are legally allowed to use lethal force, believe it or not.

You do not have any right to use lethal force to resist an arrest you feel is not justified. You cannot resist arrest legally. Read PC 148 before making a legal opinion.

Also PC 834a: If a person has knowledge, or by the exercise of reasonable
care, should have knowledge, that he is being arrested by a peace
officer, it is the duty of such person to refrain from using force or
any weapon to resist such arrest.

Pullinshoot25, my post sounded harsh after I read it. Didn't mean to, wasn't trying to "school" anyone.

Who is willing to throw money down on this?

Naw, I will give you guys the answers...

“Citizens may resist unlawful arrest to the point of taking an arresting officer's life if necessary.” Plummer v. State, 136 Ind. 306. This premise was upheld by the Supreme Court of the United States in the case: John Bad Elk v. U.S., 177 U.S. 529. The Court stated: “Where the officer is killed in the course of the disorder which naturally accompanies an attempted arrest that is resisted, the law looks with very different eyes upon the transaction, when the officer had the right to make the arrest, from what it does if the officer had no right. What may be murder in the first case might be nothing more than manslaughter in the other, or the facts might show that no offense had been committed.”

List of other cases here (http://www.constitution.org/uslaw/defunlaw.htm)

Merry Christmas!

Well I wasn't kidding. I thought my post directed to you sounded harsh.

With all due respect, I understand where the cases you have cited come from. I also understand that they could be used as a defense at trial. But, they in no way give anyone the right to use deadly force, as you earlier posted, to resist what they believe to be an unlawful arrest.

In the situation the OP described would it be reasonable or necessary to take the officer's life? I don’t think anyone would find it unreasonable to use deadly force to stop violent attack. But the taking of a life, in violation of CA law, for anything but the most extreme instances would be wildly inappropriate and unlawful.

I know there are calgunners educated in law who can clear this up.

I’ll put down a $25.00 donation bet with you. If the cases you have cited in your earlier post give someone the RIGHT to use deadly force or any force that matter to resist an unlawful arrest, not merely a defense at trial I will make a $25.00 donation to CGF.

If my thought on the matter is correct, that resisting arrest, even if it is believed unlawful, is unlawful, you will give a $25.00 donation.

I'm willing to put my money where my mouth is. A little friendly challenge that everyone learns from.

I accept a CGF legal expert's ruling on this disagreement to be binding.

REASONABLENESS was not part of the original question, and I am certain that most people with two functioning neurons can ascertain what is reasonable and what is not. What was asked is TO WHAT EXTENT can someone resist an unlawful arrest. The original question from page 5 or 6.

To what extent are we allowed to defend ourselves against unlawful arrest? Are we supposed to just take it, fight it in court, lose our firearms, time, property, jobs, families and more in the process in the hopes that we might win, while the offenders walk away scot free?

The word "reasonable" came from the cases you posted. We bettin' or what?

However, you are in a place where firearms are not unexpected and are exempted from the loaded rule, so no 12031 check and therefore no other way to inspect the firearm, AFAIK. I'm up for corrections though...

Anyone up for an analysis?

The word "reasonable" came from ONE case, not cases.

In addition, I can assure that given the multiple instances of people being bludgeoned, sodomized, strangled, shot, raped, stabbed, murdered or any other form of physical harm in years past, one can, with some certainty, conclude that forcefully resisting or assisting in one's resistance could be justified. Sure, it would be a long battle but then again, so is one's death. Giving someone a badge, especially from the government where there is little viable oversight and lots of protection at your expense, does not make them your greatest protector in any sense.

I'm down to bet. 25 smackers to CGF. (27.5 after wildhawker's 10% match).

Here is the first instance of case law that came up in FindLaw.
(http://docs.google.com/Doc?docid=0AZRgaEwQBTArZGM5ajdzNWtfMTM4Z3BwYnpwaGI&hl=en)

While California law is structured to give law enforcement the proverbial "judge, jury and executioner" privilege, that does not mean the law is Constitutional. Strict scrutiny would doubtlessly remove or at least chance the wording of 834a.

Since the original bet was whether or not lethal force could be used to resist an unlawful arrest but no job parameters were outlined....

Did you just move the goalposts? Do we need to start a new thread? I feel bad for the OP. I will PM you.

So here it is, the new thread.

Here are the terms that both galekowitz and I have worked out (and I apologize about the threadbare thread last night)

The questions posed are these:

Based only on the original question posed...

To what extent are we allowed to defend ourselves against unlawful arrest? Are we supposed to just take it, fight it in court, lose our firearms, time, property, jobs, families and more in the process in the hopes that we might win, while the offenders walk away scot free?

...and taking into account PC 834a...

If a person has knowledge, or by the exercise of reasonable
care, should have knowledge, that he is being arrested by a peace
officer, it is the duty of such person to refrain from using force or
any weapon to resist such arrest.

... Is it legal to resist an unlawful arrest? What instances are considered reasonable?

In addition, both galekowitz and I get one page/post each to provide evidence for our side.

MERRY CHRISTMAS!

UPDATE: galekowitz and I have posted our prescribed posts with our supporting arguments.

galekowitz here (http://www.calguns.net/calgunforum/showpost.php?p=3549069&postcount=10)
pullnshoot25 here (http://www.calguns.net/calgunforum/showpost.php?p=3549541&postcount=23)

tyrist
12-26-2009, 11:14 AM
In legal principle yes and in the real world no.

paul0660
12-26-2009, 11:19 AM
In legal principle yes and in the real world no.

Great! Fifty bucks for the foundation!

cdtx2001
12-26-2009, 11:23 AM
So if a cop wanted to arrest you for your legal OLL... and you think you shouldn't be arrested.... does that mean????

pullnshoot25
12-26-2009, 11:27 AM
So if a cop wanted to arrest you for your legal OLL... and you think you shouldn't be arrested.... does that mean????

The issue runs much deeper than that...

elsensei
12-26-2009, 11:33 AM
in a real-world sense, I would direct you to the Sagon Penn case here in San Diego. I don't know the case forward and backwards, but the gist of it was that a couple of San Diego's "finest" were beating the crap out of some young man during a traffic stop. He managed to draw one of their weapons and shot at least one of them and may have killed both of them. I don't remember. I don't want to look it up right now.

Anyway, he was exonerated. The kicker was that a few years later, he applied to the SDPD but unfortunately, they turned him down.

About a year and a half ago, I posted this very question, in person, to three presidential candidates: Mitt Romney, Duncan Hunter, and Dr. Ron Paul. Mitt Romney of course was a weasel. Duncan Hunter, who supposedly had a "strong pro-gun record" exposed himself as the pro-government statist that he is, the claiming that American citizens have no right to resist unconstitutional laws, but that they should just roll over and take it and make their case in court. Ron Paul, of course (my God I love that man) with fire in his eyes said, "Not only do you have the right to resist you have a duty... and they'd better never come to my house!"

G17GUY
12-26-2009, 11:35 AM
http://www.legalmatch.com/law-library/article/resisting-an-unlawful-arrest.html

PatriotnMore
12-26-2009, 11:39 AM
Until the courts, and juries support resisting unlawful arrests by citizens, and or illegal/wrong address no knock warrants, it does not make a difference, IMO.

There is no punitive actions which would cause them to reason twice about consequences for their actions, because outside of a slap on the wrist (if any) they are not held accountable.

If there is law, it is not supported/prosecuted. Otherwise, cops injured/killed in wrongful no knocks, which includes wrong address, wrong suspect, ect... by those defending themselves would be upheld in courts as innocent, as they should.

To resist half way will only end you up in jail black and blue, to go all the way will see you in prison for life, what is the point? It is a no win for you mr/mrs/ms citizen. Add to this that most jury trials where prosecution does happen, end up with the violating officer(s) being aqquited or found innocent. It's a two prong problem with court and public.

In addition, you will more than likely loose your privilege to own a gun, and have at a minimum a misdemeanor, or felony on your record.

Matt C
12-26-2009, 11:40 AM
What happened to the thread from last night? There was some pretty good discussion in there.

There are two questions here.

1. Is this an arrest as per the law?

2. Can I use force to resist this arrest?

The first question seems to be confusing people. Just because you did not commit a crime does not mean the arrest is unlawful. You merely have to be a suspect. If the cops thinks your OLL is an AW, say because he thinks it's listed, then he can lawfully arrest you. If he thinks you looks like the guy that robbed a bank, he can arrest you. It doesn't matter that you are innocent, the courts will figure that out. All that matters is the officer was acting in reasonable good faith.

So you would generally not be able to use force to resist arrest here. You could, I would argue, use force to defend yourself if necessary. For example, say you are jaywalking and a cop decides to run after you shooting. His level of force is not appropriate, and you might reasonably be in fear for your life. This seems unlikely, but you get the idea. If at some point during the arrest he is just beating on you for no reason, you could probably resist that force. Good luck proving that's what happened though, unless there is video.

What about an unlawful arrest? Say you are a cop decides to "arrest" you because you "look like a hippie and he wants you out of town" and tells you as much. OR say he tried to "arrest" his ex-girlfriend because she won't talk to him. Well that is not an arrest, more like battery and attempted kidnapping. Just because a person has a badge does not mean they can jut go around throwing people in their trunk whenever they feel like it, it's not an arrest unless it falls under this:

836. (a) A peace officer may arrest a person in obedience to a
warrant, or, pursuant to the authority granted to him or her by
Chapter 4.5 (commencing with Section 830) of Title 3 of Part 2,
without a warrant, may arrest a person whenever any of the following
circumstances occur:
(1) The officer has probable cause to believe that the person to
be arrested has committed a public offense in the officer's presence.
(2) The person arrested has committed a felony, although not in
the officer's presence.
(3) The officer has probable cause to believe that the person to
be arrested has committed a felony, whether or not a felony, in fact,
has been committed.
(b) Any time a peace officer is called out on a domestic violence
call, it shall be mandatory that the officer make a good faith effort
to inform the victim of his or her right to make a citizen's arrest.
This information shall include advising the victim how to safely
execute the arrest.
(c) (1) When a peace officer is responding to a call alleging a
violation of a domestic violence protective or restraining order
issued under Section 527.6 of the Code of Civil Procedure, the Family
Code, Section 136.2, 646.91, or paragraph (2) of subdivision (a) of
Section 1203.097 of this code, Section 213.5 or 15657.03 of the
Welfare and Institutions Code, or of a domestic violence protective
or restraining order issued by the court of another state, tribe, or
territory and the peace officer has probable cause to believe that
the person against whom the order is issued has notice of the order
and has committed an act in violation of the order, the officer
shall, consistent with subdivision (b) of Section 13701, make a
lawful arrest of the person without a warrant and take that person
into custody whether or not the violation occurred in the presence of
the arresting officer. The officer shall, as soon as possible after
the arrest, confirm with the appropriate authorities or the Domestic
Violence Protection Order Registry maintained pursuant to Section
6380 of the Family Code that a true copy of the protective order has
been registered, unless the victim provides the officer with a copy
of the protective order.
(2) The person against whom a protective order has been issued
shall be deemed to have notice of the order if the victim presents to
the officer proof of service of the order, the officer confirms with
the appropriate authorities that a true copy of the proof of service
is on file, or the person against whom the protective order was
issued was present at the protective order hearing or was informed by
a peace officer of the contents of the protective order.
(3) In situations where mutual protective orders have been issued
under Division 10 (commencing with Section 6200) of the Family Code,
liability for arrest under this subdivision applies only to those
persons who are reasonably believed to have been the primary
aggressor. In those situations, prior to making an arrest under this
subdivision, the peace officer shall make reasonable efforts to
identify, and may arrest, the primary aggressor involved in the
incident. The primary aggressor is the person determined to be the
most significant, rather than the first, aggressor. In identifying
the primary aggressor, an officer shall consider (A) the intent of
the law to protect victims of domestic violence from continuing
abuse, (B) the threats creating fear of physical injury, (C) the
history of domestic violence between the persons involved, and (D)
whether either person involved acted in self-defense.
(d) Notwithstanding paragraph (1) of subdivision (a), if a suspect
commits an assault or battery upon a current or former spouse,
fiance, fiancee, a current or former cohabitant as defined in Section
6209 of the Family Code, a person with whom the suspect currently is
having or has previously had an engagement or dating relationship,
as defined in paragraph (10) of subdivision (f) of Section 243, a
person with whom the suspect has parented a child, or is presumed to
have parented a child pursuant to the Uniform Parentage Act (Part 3
(commencing with Section 7600) of Division 12 of the Family Code), a
child of the suspect, a child whose parentage by the suspect is the
subject of an action under the Uniform Parentage Act, a child of a
person in one of the above categories, any other person related to
the suspect by consanguinity or affinity within the second degree, or
any person who is 65 years of age or older and who is related to the
suspect by blood or legal guardianship, a peace officer may arrest
the suspect without a warrant where both of the following
circumstances apply:
(1) The peace officer has probable cause to believe that the
person to be arrested has committed the assault or battery, whether
or not it has in fact been committed.
(2) The peace officer makes the arrest as soon as probable cause
arises to believe that the person to be arrested has committed the
assault or battery, whether or not it has in fact been committed.
(e) In addition to the authority to make an arrest without a
warrant pursuant to paragraphs (1) and (3) of subdivision (a), a
peace officer may, without a warrant, arrest a person for a violation
of Section 12025 when all of the following apply:
(1) The officer has reasonable cause to believe that the person to
be arrested has committed the violation of Section 12025.
(2) The violation of Section 12025 occurred within an airport, as
defined in Section 21013 of the Public Utilities Code, in an area to
which access is controlled by the inspection of persons and property.
(3) The peace officer makes the arrest as soon as reasonable cause
arises to believe that the person to be arrested has committed the
violation of Section 12025.


If the officers actions take place outside the law above, IT IS NOT AN ARREST! You would not be resisting an unlawful arrest, simply defending yourself.

galekowitz
12-26-2009, 12:50 PM
I Submit the following in support of my claim that it is unlawful for a person to resist arrest”

Penal Code section 834a
If a person has knowledge, or by the exercise of reasonable care, should have knowledge, that he is being arrested by a peace officer, it is the duty of such a person to refrain from using force or any weapon to resist such arrest.

In 1957, the legislature passed Penal Code ' 834a which provides that if a person knows or reasonably should know that they are being arrested, that person cannot use force to resist that arrest even if the arrest is unlawful.
Under the old rule, the courts determined that people were finding a ready excuse to resist or escape and this refusal to be arrested inevitably led to violence, riots, etc.

834a is clear and unambiguous

bodger
12-26-2009, 12:53 PM
So CGF is getting 25 (+2.5 from Wildhawker) from this bet. Who it comes from (myself or galekowitz) depends on the verdict of the great legal minds here at Calguns, preferably hoffmang or oaklander. You all can join in too!



Is there a ruling yet? And does +2.5 from Wildhawker mean he is kicking in $2.50, or he is donating 2.5 times the bet when it is won. :D

I say Nate is going to win and I'll drop $10 into the CGF kitty, whoever wins the bet.
As soon as there is a ruling.

bohoki
12-26-2009, 12:53 PM
i always think it isfunny when people are arrested for "resisting arrest" it sounds like the chicken and the egg

bodger
12-26-2009, 12:56 PM
I wonder what would have happened if Rodney King had decided he was being beaten to death and his only chance was to rise up and defend himself.

He'd prolly be dead now and without a video, those cops would have received promotions.

bodger
12-26-2009, 12:56 PM
Pretty danged convincing. I Submit the following in support of my claim that it is unlawful for a person to resist arrest”

Penal Code section 834a
If a person has knowledge, or by the exercise of reasonable care, should have knowledge, that he is being arrested by a peace officer, it is the duty of such a person to refrain from using force or any weapon to resist such arrest.

In 1957, the legislature passed Penal Code ' 834a which provides that if a person knows or reasonably should know that they are being arrested, that person cannot use force to resist that arrest even if the arrest is unlawful.
Under the old rule, the courts determined that people were finding a ready excuse to resist or escape and this refusal to be arrested inevitably led to violence, riots, etc.

834a is clear and unambiguous

BigDogatPlay
12-26-2009, 1:02 PM
So for the sake of the discussion, and with a hat tip to BWO for the detailed citation; is it reasonable to expect the average person to understand what is and is not "lawful" in an arrest situation? I think the answer to that is no, and that determination is, ultimately, the responsibility of a court if the case goes that far.

Couple that with the compelling language of 834a and my thinking is that resistance to the arrest, lawful or not, by a peace office is a no win.

Matt C
12-26-2009, 1:11 PM
I Submit the following in support of my claim that it is unlawful for a person to resist arrest”

Penal Code section 834a
If a person has knowledge, or by the exercise of reasonable care, should have knowledge, that he is being arrested by a peace officer, it is the duty of such a person to refrain from using force or any weapon to resist such arrest.

In 1957, the legislature passed Penal Code ' 834a which provides that if a person knows or reasonably should know that they are being arrested, that person cannot use force to resist that arrest even if the arrest is unlawful.
Under the old rule, the courts determined that people were finding a ready excuse to resist or escape and this refusal to be arrested inevitably led to violence, riots, etc.

834a is clear and unambiguous

Where are you getting the part in bold? Or is that just your own opinion?

galekowitz
12-26-2009, 1:39 PM
Where are you getting the part in bold? Or is that just your own opinion?

I thought it was a good description of the history of the section and its reason for being changed. I don't doubt its accuracy.

http://dinanlaw.com/articles_other_criminal.php

Also found the second section helpful in understanding the relationship between PC 834a and PC 148.

http://content.cdlib.org/view?docId=kt7m3nb2gf&chunk.id=div00080&brand=calisphere&doc.view=entire_text

lorax3
12-26-2009, 1:49 PM
There needs to be some clarification in the actual question and definitions here. BWO is on the right track.

What is an unlawful arrest? Is it an arrest that does not meet the definition in PC 386? Or is it an arrest the suspect deems to be unlawful because he believes the probable cause did not exist. i.e. some sort of 4A violation.

Is an officer using his authority to arrest and assault a woman an unlawful arrest? Well it again depends on how we define unlawful arrest.

The above situation is not an arrest although since the officer used the pretense of arrest to gain advantage of the situation perhaps it is an unlawful arrest, or maybe it is just assault and kidnapping.

Can you resist a lawful arrest? No, even if the police officer is wrong about the charges as long as the proper procedures of arrest are being followed than you cannot, and probably should not resist. Lawful in this case does not mean you committed a crime, just that proper arrest procedures were taken.

This 'bet' is again going to come down to a technicality on the definition. Perhaps there is no such thing as an 'unlawful arrest' as another user pointed out in the previous thread. At the time of arrest as long as procedures were followed the arrest is lawful, wether or not a crime was actually committed is left up to the process of the magistrate.

Can you resist an arrest? No
Can you resist some crazy guy with a badge and a gun beating you to death? Probably. :)

Matt C
12-26-2009, 2:00 PM
I thought it was a good description of the history of the section and its reason for being changed. I don't doubt its accuracy.

http://dinanlaw.com/articles_other_criminal.php


Doubts aside, why don't you quote the full text for proper context:

Q. Last month I was arrested for something I did not do. I was trying to explain this to the police officer and I refused to let him handcuff me. He then threw me to the ground, handcuffed me and also charged me with resisting arrest. Can=t I refuse to be arrested if the police are wrong?

That is NOT a description of an unlawful arrest under current law, at least not without some further details.

Also, the only other answer (about rights restoration for a convicted felon) on that page is absolutely incorrect, so I certainly have doubts about the accuracy of the other statement.

No. It is illegal for any person convicted of a felony to possess or use a firearm for the rest of their life. The only way to restore this right is to receive a pardon from the Governor=s Office.

NOT TRUE! See: http://www.calguns.net/calgunforum/showthread.php?t=97498


Also found the second section helpful in understanding the relationship between PC 834a and PC 148.

http://content.cdlib.org/view?docId=kt7m3nb2gf&chunk.id=div00080&brand=calisphere&doc.view=entire_text

From you own link here: "Thus, when an arrest is unlawful, even resistance forbidden by Penal Code #834a cannot be prosecuted under Penal Code #148, but must be charged as some other offense, such as assault and battery." Of course it can't be charged as battery either if it is self defense.


Can you resist an arrest? No
Can you resist some crazy guy with a badge and a gun beating you to death? Probably. :)

Exactly.

galekowitz
12-26-2009, 2:04 PM
Doubts aside, why don't you quote the full text for proper context:



That is NOT a description of an unlawful arrest under current law, at least not without some further details.

Also, the only other answer (about rights restoration for a convicted felon) on that page is absolutely incorrect, so I certainly have doubts about the accuracy of the first answer.



NOT TRUE! See: http://www.calguns.net/calgunforum/showthread.php?t=97498



From you own link here: Of course it can't be charged as battery either if it is self defense.

I think you are trying to "qualify" me and my logic. Please be gentle, I'm not a lawyer nor do I profess to be. I stand with my lowly opinion that PC 834a prohibits resisting arrest by force.

I found the sections I cited to be helpful. I agreed to present my side, not debate articles on a law firm's webpage not related to my position. After its decided I will surely do that if you like.

Matt C
12-26-2009, 2:16 PM
I think you are trying to "qualify" me and my logic. Please be gentle, I'm not a lawyer nor do I profess to be.

I found the sections I cited to be helpful. I agreed to present my side, not debate articles on a law firm's webpage not related to my position. After its decided I will surely do that if you like.

I'm simply pointing out that a firm which seems to specialize in DUIs and has incorrect info on its site about firearms law might not be the best source to quote from.

I stand with my lowly opinion that PC 834a prohibits resisting arrest by force.


Under what circumstances? Do you think that if a person who happens to be a reserve deputy and has handcuffs and uses the word "arrest" attacks and tries to kidnap his ex-girlfriend whom he is stalking that the law somehow prohibits her from resisting him because it's an "unlawful arrest"? It's a ludicrous argument.

galekowitz
12-26-2009, 2:43 PM
I'm simply pointing out that a firm which seems to specialize in DUIs and has incorrect info on its site about firearms law might not be the best source to quote from.



Under what circumstances? Do you think that if a person who happens to be a reserve deputy and has handcuffs and uses the word "arrest" attacks and tries to kidnap his ex-girlfriend whom he is stalking that the law somehow prohibits her from resisting him because it's an "unlawful arrest"? It's a ludicrous argument.

OK, Ill bite. The DUI website is the best I got. I dont have access to a law library. If you do then by all means find a brief history of PC 834a. I think it sounds accurate. If you dont feel my sources are good, Im sorry, all I got is the internet.

Furthermore, if a supposed reserve deputy handcuffs, attempts to kidnap his ex girlfriend whom he is stalking and uses the word arrest all under the color of authority, it would be REASONABLE for her to resist or someone to at least come to her aid. And if she would have killed or otherwise harmed him during her resistance to those things she would not face prosecution.

Your example is an extreme case and not applicable. I know your angle. I hope you take a step back and read what the bet is about.

Obviously in an extreme case such as the one you cited, especially if the officer is "on duty" or otherwise in the performance of their duty, PC 834a would not be an issue in the eyes of the court. How could it be.

We are talking about a section that states you cannot use force to resist arrest. Common sense would be if you have a difference of opinion with the officers interpretation of the law, it should be resolved in court, not with the use of force. In an extreme instance as the one you described, which I'm sure has happened, no DA, Judge, Jury would think resisting that described "arrest" would be unreasonable.

Please don't take this to the extreme.

pullnshoot25
12-26-2009, 3:05 PM
Damn, some of you guys are friggin ON IT!

Now, for my schpeal.

I feel (perhaps know?) that there are instances of unlawful arrest where PC 834a is invalid.

I shall quote case law to my end.

People v. Burns, 198 Cal.App.2d Supp. 839 (1961)


[2] We have concluded that section 834a is clear and unambiguous and that the intent of the Legislature in adopting this new section was to do away with the former rule that a person could resist arrest if the attempted arrest were unlawful. The section does not say that it is the duty of a person to refrain from using force only if he is being lawfully arrested. Rather, it requires him to refrain from using force whenever he has or should have knowledge that he is being arrested by a peace officer. The former rule inevitably led to riots and violence by fostering a belief on the part of many people that they were the sole judges as to whether their arrest was or was not proper. Those persons who were inclined to resist or escape found a ready excuse in stating that the resistance or escape was because of a belief in the unlawfulness of the arrest.

(People v. Burns is pretty much a butchered case. Essentially, it says "Power can be abused, so just take it")

But, to counteract a butchered case, there is always a good case.

People v. Soto, 276 Cal.App.2d 81 (1969)

[1] It is of course clear that to constitute the felonious conduct proscribed by Penal Code section 243 the assault must be on a peace officer who is actually engaged in the performance of his duties. However, a peace officer is under no duty to make an unlawful arrest. Thus, an assault on a peace officer by a person who is resisting an unlawful arrest is not a felony under the section. But, even so, the person is guilty of a misdemeanor. [2] In short, Penal Code section 834a prohibits forceable resistance to unlawful, as well as lawful, arrests. And, although a person who commits an assault on a peace officer while resisting an unlawful arrest is not guilty of a felony, he is nevertheless guilty of a misdemeanor (People v. Curtis, 70 Cal.2d 347 [74 Cal.Rptr. 713, 450 P.2d 33]). [3] Moreover, it is a public offense for a peace officer to use unreasonable and excessive force in effecting an arrest (Boyes v. Evans, 14 Cal.App.2d 472 [58 P.2d 922]). Therefore, a person who uses reasonable force to protect himself or others against the use of unreasonable excessive force in making an arrest is not guilty of any crime (Pen. Code, §§ 692, 694). [4] As the California Supreme Court succinctly summarized in Curtis: "... construing sections 834a and 243, it is now the law of California that a person may not use force to resist any arrest, lawful or unlawful, except that he may use reasonable force to defend life and limb against excessive force; but if it should be determined that resistance was not thus justified, the felony provisions of section 243 apply when the arrest is lawful, and if the arrest is determined to be unlawful the defendant may be convicted only of a misdemeanor." (70 Cal.2d at p. 357.)

People v. Curtis , 70 Cal.2d 347 (1969) is the "unlawful arrest" equivalent of People v. Delong's "12031 check is PEACHY" statement. Basically, it says "Nope, can't resist anything because we have all the tools to find and hurt you anyways so why bother?"

A quote from People v. White (1980) 101 Cal.App.3d 161 , 161 Cal.Rptr. 541

We conclude the court's instructions failed to adequately inform the jury of the relationship between excessive force by the police officer in making the arrest on defendant's rights. The instructions should have included the explanation that where excessive force is used in making what otherwise is a technically lawful arrest, the arrest becomes unlawful and a defendant may not be convicted of an offense which requires the officer to be engaged in the performance of his duties (§§ 245, subd. (b), 243 or 148).


So what I have gathered from these cases is this...

Resistance to an unlawful arrest is NOT prevented by PC834a ONLY if certain circumstances are met.

a) There is "unusual and excessive force" on behalf of the officers.
b) The peace officer is not in the discharge of his duties
c) The person conducting the arrest is not identified as or is actually NOT a peace officer, e.g. a security guard, etc.
d) The arrest does not follow the guidelines set forth in PC 834 or other associated codes.
d) Any other circumstances that I may have missed.

In addition, I am of the opinion that PC 834a is wholly unconstitutional and should, in due time, be struck down. As mentioned before, it is a law that is worded akin to the 12031 statute and is supported with twisted wording in various instances of case law.

Now, it is up for the judges. Gene and Oaklander, please come by!

pullnshoot25
12-26-2009, 3:11 PM
Damn, I should have put in a poll for the "People's Choice" award :)

ilbob
12-26-2009, 3:18 PM
You can bet your bottom dollar if there is any resistance to an unlawful arrest by a LEO, the system will determine the arrest was legit, regardless of whether it really was.

And for all those that will say just take it and sue later, what they are really saying is just take it because there is nothing you can do about it, either now or later. Unless there is video evidence and you are murdered or beat within an inch of your life, your chances of getting any satisfaction at all out of the system over an unlawful arrest by LE approaches nil.

Just the way things work these days.

Zhukov
12-26-2009, 3:24 PM
Saw this on this site....

http://www.constitution.org/uslaw/defunlaw.htm


“Citizens may resist unlawful arrest to the point of taking an arresting officer's life if necessary.” Plummer v. State, 136 Ind. 306. This premise was upheld by the Supreme Court of the United States in the case: John Bad Elk v. U.S., 177 U.S. 529. The Court stated: “Where the officer is killed in the course of the disorder which naturally accompanies an attempted arrest that is resisted, the law looks with very different eyes upon the transaction, when the officer had the right to make the arrest, from what it does if the officer had no right. What may be murder in the first case might be nothing more than manslaughter in the other, or the facts might show that no offense had been committed.”

“An arrest made with a defective warrant, or one issued without affidavit, or one that fails to allege a crime is within jurisdiction, and one who is being arrested, may resist arrest and break away. lf the arresting officer is killed by one who is so resisting, the killing will be no more than an involuntary manslaughter.” Housh v. People, 75 111. 491; reaffirmed and quoted in State v. Leach, 7 Conn. 452; State v. Gleason, 32 Kan. 245; Ballard v. State, 43 Ohio 349; State v Rousseau, 241 P. 2d 447; State v. Spaulding, 34 Minn. 3621.

“When a person, being without fault, is in a place where he has a right to be, is violently assaulted, he may, without retreating, repel by force, and if, in the reasonable exercise of his right of self defense, his assailant is killed, he is justified.” Runyan v. State, 57 Ind. 80; Miller v. State, 74 Ind. 1.

“These principles apply as well to an officer attempting to make an arrest, who abuses his authority and transcends the bounds thereof by the use of unnecessary force and violence, as they do to a private individual who unlawfully uses such force and violence.” Jones v. State, 26 Tex. App. I; Beaverts v. State, 4 Tex. App. 1 75; Skidmore v. State, 43 Tex. 93, 903.

“An illegal arrest is an assault and battery. The person so attempted to be restrained of his liberty has the same right to use force in defending himself as he would in repelling any other assault and battery.” (State v. Robinson, 145 ME. 77, 72 ATL. 260).

“Each person has the right to resist an unlawful arrest. In such a case, the person attempting the arrest stands in the position of a wrongdoer and may be resisted by the use of force, as in self- defense.” (State v. Mobley, 240 N.C. 476, 83 S.E. 2d 100).

“One may come to the aid of another being unlawfully arrested, just as he may where one is being assaulted, molested, raped or kidnapped. Thus it is not an offense to liberate one from the unlawful custody of an officer, even though he may have submitted to such custody, without resistance.” (Adams v. State, 121 Ga. 16, 48 S.E. 910).

“Story affirmed the right of self-defense by persons held illegally. In his own writings, he had admitted that ‘a situation could arise in which the checks-and-balances principle ceased to work and the various branches of government concurred in a gross usurpation.’ There would be no usual remedy by changing the law or passing an amendment to the Constitution, should the oppressed party be a minority. Story concluded, ‘If there be any remedy at all ... it is a remedy never provided for by human institutions.’ That was the ‘ultimate right of all human beings in extreme cases to resist oppression, and to apply force against ruinous injustice.’” (From Mutiny on the Amistad by Howard Jones, Oxford University Press, 1987, an account of the reading of the decision in the case by Justice Joseph Story of the Supreme Court.

As for grounds for arrest: “The carrying of arms in a quiet, peaceable, and orderly manner, concealed on or about the person, is not a breach of the peace. Nor does such an act of itself, lead to a breach of the peace.” (Wharton’s Criminal and Civil Procedure, 12th Ed., Vol.2: Judy v. Lashley, 5 W. Va. 628, 41 S.E. 197)

galekowitz
12-26-2009, 3:27 PM
Saw this on this site....

http://www.constitution.org/uslaw/defunlaw.htm

Linked in previous thread.

dustoff31
12-26-2009, 3:38 PM
I have to go with galekowitz. PC834a is quite clear. You may not resist an arrest.

However, there may be other issues, aside from the arrest itself that justify self defense.

This is essentially what the law in AZ says. You may not resist an arrest either lawful or unlawful. Period. You may however use the justification of self defense if the officer uses excessive or unreasonable force to effect the arrest.

Two seperate issues.

pullnshoot25
12-26-2009, 3:42 PM
I have to go with galekowitz. PC834a is quite clear. You may not resist an arrest.

However, there may be other issues, aside from the arrest itself that justify self defense.

This is essentially what the law in AZ says. You may not resist an arrest either lawful or unlawful. Period. You may however use the justification of self defense if the officer uses excessive or unreasonable force to effect the arrest.

Two seperate issues.

Taken, but PC 834a does not preclude resistance to ALL arrests, just SOME arrests.

Read carefully my post and PC 834a again.

kf6tac
12-26-2009, 3:53 PM
So what I have gathered from these cases is this...

1) Resistance to an unlawful arrest is prevented by PC834a ONLY if certain circumstances are met.

a) There is "unusual and excessive force" on behalf of the officers.
b) The peace officer is not in the discharge of his duties
c) The person conducting the arrest is not identified as or is actually NOT a peace officer, e.g. a security guard, etc.
d) The arrest does not follow the guidelines set forth in PC 834 or other associated codes.
d) Any other circumstances that I may have missed.


Based on your cites, I would have concluded:

Forceful resistance to an unlawful arrest is prevented by PC834a except where certain circumstances are met:

a) There is "unusual and excessive force" on behalf of the officers.
b) The peace officer is not in the discharge of his duties -- the "engaged in the performance of his duties" requirement is relevant to PC245, 243, and 148, not 834a.
c) The person conducting the arrest is not actually a peace officer, or the person being arrested does not know and could not have known, simply by exercising reasonable care, that the person conducting the arrest is a peace officer.

pullnshoot25
12-26-2009, 4:11 PM
Based on your cites, I would have concluded:

Forceful resistance to an unlawful arrest is prevented by PC834a except where certain circumstances are met:

a) There is "unusual and excessive force" on behalf of the officers.
b) The peace officer is not in the discharge of his duties -- the "engaged in the performance of his duties" requirement is relevant to PC245, 243, and 148, not 834a.
c) The person conducting the arrest is not actually a peace officer, or the person being arrested does not know and could not have known, simply by exercising reasonable care, that the person conducting the arrest is a peace officer.

Er, whoops, I made a mistake in wording there. Damn!

Point b is directly related to 834a. That is quoted in one of the cases.

dustoff31
12-26-2009, 4:11 PM
If this is the post you are talking about, the only case I can see where 843a might not apply is the "security guard" arrest.

So what I have gathered from these cases is this...

1) Resistance to an unlawful arrest is prevented by PC834a ONLY if certain circumstances are met.

a) There is "unusual and excessive force" on behalf of the officers. -A seperate issue. You may not resist arrest, you may defend yourself against excessive force.

b) The peace officer is not in the discharge of his duties.- A peace officer is a peace officer 24/7. An arrest is an arrest.

c) The person conducting the arrest is not identified as or is actually NOT a peace officer, e.g. a security guard, etc. - 834a doesn't say anything about what the arresting person's status actually is or whether the officer was ID'd. The standard is whether the arestee knew or reasonable should have known he was being arrested by a peace officer. You would have a point in the case of a uniformed security guard, I think.

d) The arrest does not follow the guidelines set forth in PC 834 or other associated codes.-An arrest is an arrest.


d) Any other circumstances that I may have missed.-???

pullnshoot25
12-26-2009, 4:13 PM
If this is the post you are talking about, the only case I can see where 843a might not apply is the "security guard" arrest.

An arrest is not simply an arrest. It can be either lawful or unlawful.

READ THE CASES!

Maestro Pistolero
12-26-2009, 4:39 PM
If one resists excessive force by subduing said rogue-cop, but remains on the scene for the expressed purpose of complying with said arrest attempt, couldn't resisting arrest be disproved?

Meplat
12-26-2009, 4:42 PM
Ditto.

However, I have been banned:( for far less an affront to LE.
Pull&shoot needs to walk very softly on this.




Is there a ruling yet? And does +2.5 from Wildhawker mean he is kicking in $2.50, or he is donating 2.5 times the bet when it is won. :D

I say Nate is going to win and I'll drop $10 into the CGF kitty, whoever wins the bet.
As soon as there is a ruling.

kf6tac
12-26-2009, 4:59 PM
Point b is directly related to 834a. That is quoted in one of the cases.

Which one? I see your quote from People v. White, which says

The instructions should have included the explanation that where excessive force is used in making what otherwise is a technically lawful arrest, the arrest becomes unlawful and a defendant may not be convicted of an offense which requires the officer to be engaged in the performance of his duties (§§ 245, subd. (b), 243 or 148).

Emphasis mine, note no reference to 834a as one of the sections which requires that the officer be engaged in the performance of his duties.

And also your quote from People v. Soto, which says

[1] It is of course clear that to constitute the felonious conduct proscribed by Penal Code section 243 the assault must be on a peace officer who is actually engaged in the performance of his duties. However, a peace officer is under no duty to make an unlawful arrest. Thus, an assault on a peace officer by a person who is resisting an unlawful arrest is not a felony under the section. But, even so, the person is guilty of a misdemeanor. [2] In short, Penal Code section 834a prohibits forceable resistance to unlawful, as well as lawful, arrests.

Emphasis mine again, as the court is drawing a distinction between a violation that requires the officer to be engaged in the performance of his duties (Penal Code 243, violation of which is a felony) and a violation that does not so require (Penal Code 834a, violation of which is a misdemeanor).

EDIT: And yes, I could just pull up the full opinions and read them all, but I do enough of that during the 9 to 5... I'm just being lazy today. It's the holidays, after all :p

dustoff31
12-26-2009, 4:59 PM
An arrest is not simply an arrest. It can be either lawful or unlawful.

READ THE CASES!

I did. While they mention "unlawful arrest", none of them define that term.

Almost all of them say that one may defend themselves against excessive force.

None of them were in CA courts, so it really doesn't matter. Except for the one SCOTUS case, talking about self defense.

I have to agree with BHO, there is no such thing as an unlawful arrest. In the case of the guy stalking his GF, that may be an assault under color of authority, or something else, but it's not an arrest.

pullnshoot25
12-26-2009, 5:00 PM
Ditto.

However, I have been banned:( for far less an affront to LE.
Pull&shoot needs to walk very softly on this.

They have their own subforum hangout with their own rules and people have been banned from there or from the greater forum itself for violating those rules.

I'm not advocating for resisting arrest or anything, I am just looking at the law as it is written and interpreted.

Were I to be in special and extraneous situation, however, I think it would behoove me to properly resist.

pullnshoot25
12-26-2009, 5:01 PM
An arrest is not simply an arrest. It can be either lawful or unlawful.

READ THE CASES!

I did. While they mention "unlawful arrest", none of them define that term.

Almost all of them say that one may defend themselves against excessive force.

None of them were in CA courts, so it really doesn't matter. Except for the one SCOTUS case, talking about self defense.

Actually, unlawful arrest was defined, but maybe not in the cases I listed. I will dig it up for you if you can't find it...

Matt C
12-26-2009, 5:01 PM
An arrest is not simply an arrest. It can be either lawful or unlawful.

READ THE CASES!

I still have to disagree. If the arrest is unlawful than by law it is not an arrest at all. If it is an arrest than you cannot resist, unless there is such "unusual and excessive force" that you must resist to prevent serious injury or death.

Meplat
12-26-2009, 5:03 PM
This is probably a hard thread foe some of our LEO's to read. I just want to acknowledge the big win in Phenix today. A little girl was saved by really good law enforcement work. These things so often end in a little body being found in a shallow grave a month later. But an alert K-9 officer spotted this low life and figured it out in spite of a bogus licence plat, and hung on like a pit bull and wouldn't let go. Kudos to FPD. And thank you to all LEO's.






I will never resist arrest in any reasonable scenario. But if you break down my door at 0300, I don't care if you are shouting that you are the Queen of England, you will receive a charge from my 12 Ga in the head & groin. I'm not a morning person. Too bad for both of us.

This dynamic entry **** has to stop.

Of course I do not expect to live to go to trial. Again, too bad for both of us.



So for the sake of the discussion, and with a hat tip to BWO for the detailed citation; is it reasonable to expect the average person to understand what is and is not "lawful" in an arrest situation? I think the answer to that is no, and that determination is, ultimately, the responsibility of a court if the case goes that far.

Couple that with the compelling language of 834a and my thinking is that resistance to the arrest, lawful or not, by a peace office is a no win.

B Strong
12-26-2009, 5:06 PM
I know this won't be popular, or answer the question to the satisfaction of the participants, but here's my .02

In the event that you find yourself on the receiving end of a unlawful violent attack from a LEO, you most likely won't be in a real position to resist effectively, short of being on home turf, so cover up, keep your mouth closed, and pray that you'll live through the event to collect your settlement.

wildhawker
12-26-2009, 5:35 PM
I tend to agree with Bill Strong. It's very unlikely that if I were caught off guard (say, asleep) by a SWAT or other tactical unit there'd be much chance I could do anything but take a very subservient and compliant position. Frankly, I'd never wish to test my feeble shooting skills against professional operators- I'd rather we use our energies making infringements and harassment by LEOs so painful/costly that they are purposefully avoided.

JDoe
12-26-2009, 6:07 PM
Is it unlawful to resist an unlawful arrest?

In California, yes. Here are about 33 pages discussing the concept but keep in mind that this was published in July 2000 so things have very likely tightened up even further.

RESISTING UNLAWFUL ARREST IN MISSISSIPPI:
RESISTING THE MODERN TREND (http://papers.ssrn.com/sol3/Delivery.cfm/000710365.pdf?abstractid=235760&mirid=1)

¶40 As of 1965 only California, Delaware, New Hampshire, New Jersey, and Rhode Island prohibited resistance of an illegal arrest.

bodger
12-26-2009, 6:27 PM
$10 sent to CGF via GunPal.

Tough question, this lawful resisting.

You in for $2.50 Wildhawker? :D

snobord99
12-27-2009, 1:40 AM
I dont have access to a law library.

Well, I do. I've not read these yet since it's getting late, but here are some cases labeled "effect of unlawful arrest" in the "notes of decisions" of 834a. I'll probably be reading them tomorrow.

People v. Muniz 4 Cal App 3d 562
People v. Cuevas 16 Cal App 3d 245
People v. Newton 8 Cal App 3d 359
Evans v. City of Bakersfield 22 Cal App 4th 321

E Pluribus Unum
12-27-2009, 2:15 AM
I Submit the following in support of my claim that it is unlawful for a person to resist arrest”

Penal Code section 834a
If a person has knowledge, or by the exercise of reasonable care, should have knowledge, that he is being arrested by a peace officer, it is the duty of such a person to refrain from using force or any weapon to resist such arrest.

In 1957, the legislature passed Penal Code ' 834a which provides that if a person knows or reasonably should know that they are being arrested, that person cannot use force to resist that arrest even if the arrest is unlawful.
Under the old rule, the courts determined that people were finding a ready excuse to resist or escape and this refusal to be arrested inevitably led to violence, riots, etc.

834a is clear and unambiguous



Pretty danged convincing.

That is because neither of you understand the concept of statutory law versus constitutional law.

We have a constitutional right to life, liberty and the pursuit of happiness. ANY law that impedes constitutional rights is invalid. Because we have a constitutional right to resist tyranny, and oppression. any law which makes resisting these forces illegal is thereby null and void.

In the real world, fighting this legal battle is almost impossible and very expensive, but in theory, it is true. We have the constitutional right to resist the government when the government is wrong. The ONLY time this is worth it, is when your life is in danger. Otherwise, it is best to let them violate your rights, and then sue them in civil court.

CABilly
12-27-2009, 2:50 AM
I have to say that any force necessary to resist an unlawful arrest is warranted.

The logical extension of the opposing view is that we don't need the 2A - instead of resisting a corrupt and illegitimate government, we should take them on in court.

snobord99
12-27-2009, 9:58 AM
Alright, I read the cases.

No, you may not resist an arrest, lawful or not. What you could resist is excessive force whether or not the initial attempt at arrest was lawful.

I'd give this to galekowitz and say N8 gets to pony up the $25.

Roadrunner
12-27-2009, 11:46 AM
I Submit the following in support of my claim that it is unlawful for a person to resist arrest”

Penal Code section 834a
If a person has knowledge, or by the exercise of reasonable care, should have knowledge, that he is being arrested by a peace officer, it is the duty of such a person to refrain from using force or any weapon to resist such arrest.

In 1957, the legislature passed Penal Code ' 834a which provides that if a person knows or reasonably should know that they are being arrested, that person cannot use force to resist that arrest even if the arrest is unlawful.
Under the old rule, the courts determined that people were finding a ready excuse to resist or escape and this refusal to be arrested inevitably led to violence, riots, etc.

834a is clear and unambiguous

This law is unreasonable and should be repealed.

wildhawker
12-27-2009, 12:01 PM
$10 sent to CGF via GunPal.
Tough question, this lawful resisting.
You in for $2.50 Wildhawker? :D

My match rate went up (http://www.calguns.net/calgunforum/showthread.php?t=253099), so I'm in for $11.50 on their $25 bet now. :D

Matt C
12-27-2009, 12:54 PM
Alright, I read the cases.

No, you may not resist an arrest, lawful or not. What you could resist is excessive force whether or not the initial attempt at arrest was lawful.

I'd give this to galekowitz and say N8 gets to pony up the $25.

Ok, so what exactly is an unlawful arrest?

bodger
12-27-2009, 1:03 PM
My match rate went up (http://www.calguns.net/calgunforum/showthread.php?t=253099), so I'm in for $11.50 on their $25 bet now. :D


Outstanding Sir.

pullnshoot25
12-27-2009, 1:20 PM
Dammit, someone from the "Right people" give a verdict!

galekowitz
12-27-2009, 1:29 PM
Please CGF!

snobord99
12-27-2009, 2:43 PM
Ok, so what exactly is an unlawful arrest?

Well, if they arrest you for a DUI when you've never had a drink or an illicit drug and had zero signs of being under the influence of anything, that would be an unlawful arrest. But that doesn't mean you're allowed to shoot the cop doing it.

If you are drunk and they try to arrest you for a DUI by firing their weapon at you, you could shoot back as that's more likely than not both excessive and deadly force.

E Pluribus Unum
12-27-2009, 3:20 PM
Well, if they arrest you for a DUI when you've never had a drink or an illicit drug and had zero signs of being under the influence of anything, that would be an unlawful arrest. But that doesn't mean you're allowed to shoot the cop doing it.

If you are drunk and they try to arrest you for a DUI by firing their weapon at you, you could shoot back as that's more likely than not both excessive and deadly force.

Just because an officer arrests someone who is not guilty, does not mean it is an unlawful arrest. If an officer is operating in "good faith", unlawful arrest is hard to establish.

This is especially aggravated by the fact that probable cause can often be manufactured after the fact by simply lying in the report.

snobord99
12-27-2009, 5:54 PM
Just because an officer arrests someone who is not guilty, does not mean it is an unlawful arrest.

This is true, but I was implying that there wasn't in good faith when I said no signs of intoxication.

bigcalidave
12-27-2009, 6:26 PM
The incorrect no knock warrant is the most obvious case of resisting an unlawful arrest. If someone kicks down your door in the middle of the night screaming at you, then you have no reasonable knowledge that you are being arrested. If you engage in a shootout, you are defending yourself, probably on your way to prison... By the way, you will lose that shootout. Being convicted of a crime is the last thing you have to worry about.

Meplat
12-27-2009, 6:35 PM
By the way, you will lose that shootout. Being convicted of a crime is the last thing you have to worry about.

That depends on your definition of lose.:43:

cbn620
12-27-2009, 6:37 PM
I tend to agree with Bill Strong. It's very unlikely that if I were caught off guard (say, asleep) by a SWAT or other tactical unit there'd be much chance I could do anything but take a very subservient and compliant position. Frankly, I'd never wish to test my feeble shooting skills against professional operators- I'd rather we use our energies making infringements and harassment by LEOs so painful/costly that they are purposefully avoided.

I'm sure you're a better shooter than some of these guys man, but I guess that's not the point. I think I agree with your sentiment that there's not much you can do in that situation, though. I just don't think it takes a good shooter to serve a no knock warrant. You don't really need skill when you have the element of surprise, the law is on your side, and you have 30 round mags and full auto on your MP5. ETA: Oh, and you've gut like 20 other guys with you and only 5 BG's in the house you're raiding.

Meplat
12-27-2009, 6:49 PM
you have 30 round mags and full auto on your MP5.

Lord grant that all my enemies be on full auto.:43:

ilbob
12-27-2009, 10:34 PM
I know this won't be popular, or answer the question to the satisfaction of the participants, but here's my .02

In the event that you find yourself on the receiving end of a unlawful violent attack from a LEO, you most likely won't be in a real position to resist effectively, short of being on home turf, so cover up, keep your mouth closed, and pray that you'll live through the event to collect your settlement.

There will be no settlement to collect. Very few LE misconduct cases ever result in monetary damages being awarded to the victim, or any kind of meaningful punishment to those engaged in the misconduct. The system does work some of the time, but it is not anywhere near to being perfect when dealing with the conduct, or misconduct as the case may be, of LE.

I don't have an answer to how to deal with this particular problem that might not make the situation worse in the long run. Look at it this way. If every time a cop made a mistake, or had a bad day and did something wrong he got punished, virtually every cop would soon have a long string of demerits that would make him untenable when trying to testify in court. So, the system has to basically prevent the demerits from happening in the first place. Otherwise there would be no cops at all.

ilbob
12-27-2009, 10:45 PM
Just because an officer arrests someone who is not guilty, does not mean it is an unlawful arrest. If an officer is operating in "good faith", unlawful arrest is hard to establish.

This is especially aggravated by the fact that probable cause can often be manufactured after the fact by simply lying in the report.
A cop in Chicago has gotten the spot light after a review of his squad car camera videos revealed that the claimed failures of FSTs he reported did not match what the video showed.

Sadly when this situation came up, it was discussed in some depth on a Chicago cop blog and while there was some concern shown that the guy had probably been faking things to make DUI busts, many of the posts were more concerned about him being caught at it.

okimreloaded
12-27-2009, 10:53 PM
I would not resist an unlawful arrest. But I would consider suing later or complaining to internal affairs. I'm fairly certain if you shoot a cop, if he's in the wrong or not - you're in some deep DEEP stuff. Like all the beatings your going to get from the other cops, on top of the legal issues. ON TOP OF THE BOOTY BANDIT.

Google it.

pullnshoot25
12-27-2009, 11:00 PM
I would not resist an unlawful arrest. But I would consider suing later or complaining to internal affairs. I'm fairly certain if you shoot a cop, if he's in the wrong or not - you're in some deep DEEP stuff. Like all the beatings your going to get from the other cops, on top of the legal issues. ON TOP OF THE BOOTY BANDIT.

Google it.

You're kinda missing the point by making this statement...

KylaGWolf
12-27-2009, 11:10 PM
in a real-world sense, I would direct you to the Sagon Penn case here in San Diego. I don't know the case forward and backwards, but the gist of it was that a couple of San Diego's "finest" were beating the crap out of some young man during a traffic stop. He managed to draw one of their weapons and shot at least one of them and may have killed both of them. I don't remember. I don't want to look it up right now.

Anyway, he was exonerated. The kicker was that a few years later, he applied to the SDPD but unfortunately, they turned him down.

About a year and a half ago, I posted this very question, in person, to three presidential candidates: Mitt Romney, Duncan Hunter, and Dr. Ron Paul. Mitt Romney of course was a weasel. Duncan Hunter, who supposedly had a "strong pro-gun record" exposed himself as the pro-government statist that he is, the claiming that American citizens have no right to resist unconstitutional laws, but that they should just roll over and take it and make their case in court. Ron Paul, of course (my God I love that man) with fire in his eyes said, "Not only do you have the right to resist you have a duty... and they'd better never come to my house!"

Well here is what happened to Mr. Penn : http://www.geneticdisorder.net/13.OnlineUpdates/SagonPenn/sagonpenn.htm

Matt C
12-27-2009, 11:12 PM
This is true, but I was implying that there wasn't in good faith when I said no signs of intoxication.

At what point does an unlawful arrest become battery under color of authority/kidnapping? Take the ex-gf scenario for example. Let say use of force is not particularly egregious.

Mayhem
12-27-2009, 11:42 PM
CHP officer Craig Alan Peyer convicted of first-degree murder of Cara Knott. He was in uniform and killed her during a traffic stop.

http://en.wikipedia.org/wiki/Craig_Peyer

snobord99
12-28-2009, 11:38 AM
At what point does an unlawful arrest become battery under color of authority/kidnapping? Take the ex-gf scenario for example. Let say use of force is not particularly egregious.

I'm not sure that there's a legal standard. I assume this, for a large part, is going to be a jury question. Some jury may say that a shove by a cop during a traffic stop is excessive force while others will say that a senseless beating of the "suspect" is not excessive (think: Rodney King).

I think I've seen the ex-gf scenario you're referring to but don't know where and don't remember the details so I can't really comment.

Matt C
12-28-2009, 2:58 PM
I'm not sure that there's a legal standard. I assume this, for a large part, is going to be a jury question. Some jury may say that a shove by a cop during a traffic stop is excessive force while others will say that a senseless beating of the "suspect" is not excessive (think: Rodney King).

I think I've seen the ex-gf scenario you're referring to but don't know where and don't remember the details so I can't really comment.

I don't think there is any case law that would preclude a defense on an 834a charge based upon the supposition that the incident was in fact not an arrest at all and therefore 834a does not apply. Not sure if that would go to jury or if the judge would allow it.

I think the crazy cop stalking the GF/ex-wife scenario has been repeated numerous times.

ilbob
12-28-2009, 4:15 PM
Some jury may say that a shove by a cop during a traffic stop is excessive force while others will say that a senseless beating of the "suspect" is not excessive (think: Rodney King).


The Rodney King situation may have been senseless or excessive, both, or neither, depending on your POV.

In any case, it may well have helped make the average citizen a little more aware of how LE actually operates, and a lot of people did not like it one bit, including a lot of "law and order" types.

Maestro Pistolero
12-29-2009, 12:01 AM
First mistake was letting them in the door. Call 911 and while on the phone with the 911 operator, and through the door: "I am the owner/ occupant here, my name is such and such, You do not have permission to enter, get a warrant or get off the property. I'm on the phone with your agency right now, I will give your department all the information they need to verify my identity over the phone. You do not, I repeat do NOT have permission to enter these premises without a warrant."

sonico
12-29-2009, 9:30 AM
First mistake was letting them in the door. Call 911 and while on the phone with the 911 operator, and through the door: "I am the owner/ occupant here, my name is such and such, You do not have permission to enter, get a warrant or get off the property. I'm on the phone with your agency right now, I will give your department all the information they need to verify my identity over the phone. You do not, I repeat do NOT have permission to enter these premises without a warrant."

Useful for a "Hello homeowner, this is Law Enforcement, can you open the door so we may enter your domicile?"

Not so useful for no knock battering ram/boot to the door.

sonico
12-29-2009, 9:32 AM
Here's (http://www.sanluisobispo.com/news/local/story/971010.html) an interesting story. I'm not intimately familiar with the case, but it definitely has some interesting circumstances. It's interesting that at the end of the man's interaction with the police, the only charge remaining was "resisting arrest". I wonder if he would have filed a excessive force lawsuit and settled it had he not been pepper sprayed.

Pepper spray or not he would have sued. They kicked his ***. (http://calcoastnews.com/2009/12/san-luis-obispo-slated-to-pay-195000-for-alleged-police-brutality/)

kcbrown
12-29-2009, 4:33 PM
Pepper spray or not he would have sued. They kicked his ***. (http://calcoastnews.com/2009/12/san-luis-obispo-slated-to-pay-195000-for-alleged-police-brutality/)

He settled for very cheap. Too cheap, I think. I don't know the specifics of his own situation or why exactly he settled for $195K, but...

I'm sorry, but if individual officers have, essentially, blanket immunity for acts like that, then the only thing left is to make sure the municipality pays so much that it never forgets or forgives those who so blatantly violated their duty.

$195K is a pittance. This guy should be demanding hundreds of millions (anything less and the municipality will hardly notice) and the firing of the offending officers. As it stands, what he's getting won't change anything for anyone.

If governments are going to make lawsuits against them the only means of controlling them, then it's high time lawsuits were used to do just that.

I'm generally very much against punitive damage lawsuits where money is involved, because it encourages people to misuse the courts as a money grab, and I see that as being wrong in and of itself. But if there's no other recourse then what can one do?

As citizens, we really need better options than this...

Perhaps the only real answer to this problem is to somehow make the members of the police force feel like welcomed members of the community, so that they will think of and therefore treat individuals within the community with respect instead of like dirt. That might not eliminate the problem -- I doubt anything will -- but maybe it would help a bit.

There must be something we can do to eliminate the "us versus them" mentality that I think is largely responsible for things like this.

galekowitz
12-31-2009, 8:31 PM
I's disappointed there was never an official ruling on this bet.

I will still drop $25 to CGF.

galekowitz
12-31-2009, 8:35 PM
Confirmation number: 5ET6853539526743H

$25.00 via paypal. Based on thread:

http://www.calguns.net/calgunforum/showthread.php?t=253223

I was going to drop 25 anyways...

pullnshoot25
12-31-2009, 9:03 PM
Guess it is a pseudo-draw then.

25 bucks on the way.

pullnshoot25
12-31-2009, 9:06 PM
Transaction Details (GUNPAL Transaction ID: 7ED1734360)

ap3572001
01-01-2010, 1:11 PM
You have a right to resist excessive force. You also have a full rigth to resisit any act of violence against Youtself comming form anyone or anything. If anyone does something to cause You harm, You have a rigth to defend Yourself 100% of the time.

snobord99
01-01-2010, 3:50 PM
You have a right to resist excessive force. You also have a full rigth to resisit any act of violence against Youtself comming form anyone or anything. If anyone does something to cause You harm, You have a rigth to defend Yourself 100% of the time.

This isn't exactly true. An instigator usually can't claim self-defense. For example, gang banger A starts shooting at gang banger B, B shoots back and misses. A then shoots again and finally hits and kills B. A can't now claim that he was defending himself from B shooting back even though it's pretty clear that B was doing something to cause A harm when he shot back in self-defense.

pullnshoot25
01-01-2010, 5:09 PM
This isn't exactly true. An instigator usually can't claim self-defense. For example, gang banger A starts shooting at gang banger B, B shoots back and misses. A then shoots again and finally hits and kills B. A can't now claim that he was defending himself from B shooting back even though it's pretty clear that B was doing something to cause A harm when he shot back in self-defense.

However, if the instigator tells opponent that the fight is over and opponent keeps on going, the instigator can then claim self-defense.

Matt C
01-01-2010, 5:35 PM
This isn't exactly true. An instigator usually can't claim self-defense. For example, gang banger A starts shooting at gang banger B, B shoots back and misses. A then shoots again and finally hits and kills B. A can't now claim that he was defending himself from B shooting back...

A could if A tried to withdraw after shooting and missing B, before B returned fire. Gotta love these stupid laws...

ETA: I just realized I posted pretty much exactly what pullnshoot already said.

ap3572001
01-01-2010, 6:30 PM
Thats not what I meant......... If I am walking down the street and trying to go to the bank and someone in uniform screams "Police" and throws me down and is about to break my arm behind my back.. I have a FULL RIGHT TO DO WHATEVER I CAN NOT TO LET IT happen.

galekowitz
01-01-2010, 6:35 PM
Thats not what I meant......... If I am walking down the street and trying to go to the bank and someone in uniform screams "Police" and throws me down and is about to break my arm behind my back.. I have a FULL RIGHT TO DO WHATEVER I CAN NOT TO LET IT happen.

In this scenario do you believe the uniformed person is a peace officer?

Are you literally lying motionless on the ground and the officer is breaking your arm for no reason other than to break your arm?

Do you believe the officer is attempting to place you under arrest?

ap3572001
01-01-2010, 7:50 PM
I believe I am about to get injured for no good reason. That is enough reason to defend Yourself....... form anyone.

snobord99
01-01-2010, 7:54 PM
However, if the instigator tells opponent that the fight is over and opponent keeps on going, the instigator can then claim self-defense.

You can't just say "it's over," you actually have to show that it is. In fact, you could show that it is (for example, by running away) and not have to say a thing. ;)

snobord99
01-01-2010, 7:56 PM
I believe I am about to get injured for no good reason. That is enough reason to defend Yourself....... form anyone.

At this point, whether it's legal should make no difference. If you really have a fear of death or great bodily injury, you're going to defend yourself legal or not.

hoffmang
01-01-2010, 8:55 PM
At this point, whether it's legal should make no difference. If you really have a fear of death or great bodily injury, you're going to defend yourself legal or not.

This is an important point about self defense as the first law of nature. Even if a state were to make it a death penalty to defend yourself you might as well defend yourself now and take your chances later with the state...

-Gene