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CalGunsNoob
08-01-2007, 8:25 PM
This is more of a legal question than one of practicality. We all know that actually resisting might end badly, if only for that moment.

What is the legality surrounding an unlawful arrest? Is one required to submit and comply?

For example, there was a report in a recent thread about an individual having overheard a police officer bragging that he'd arrest someone for carrying a handgun in any locked case that wasn't metal or hard plastic. As many of you know, the statute doesn't necessitate that a case be rigid. So, evidently this officer has stated he'd act outside the law. Whether this is based on ignorance, bravado, or a combination of the two remains unknown.

In such an event (and other such events you might imagine) in which the arrest is at odds with the penal code is one legally required to submit anyway?

What would happen legally if one refused to be arrested? (As I mentioned above, I know you'd get arrested anyway...probably with a bit of force...but my question is more to the proceeding legal ramifications.)

I'm not suggesting anyone refuse arrest or that doing so is a good idea. I am just curious as to the legality.

Thanks

xenophobe
08-01-2007, 8:45 PM
What is the legality surrounding an unlawful arrest? Is one required to submit and comply?

Yes. If you don't, you may be charged for resisting arrest, and you could get yourself beaten pretty good as well.

If there was any chance where you could prove the officer arrested you unlawfully out of spite, you hire a lawyer and file a civil suit *after* you have been released.

h.bowman
08-01-2007, 8:58 PM
Yeah. Officers, as well as Judges, don't think too highly of those that question the legal grounds of the arrest while out in the field at the moment they are being arrested.

triggerhappy
08-01-2007, 9:00 PM
No. THe supreme court, as well as various others have ruled that you may not only resist such, but to the point of taking the officer's life if necessary (hopefully not!).

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

Your Right of Defense Against Unlawful Arrest

“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)"


God forbid that such should ever be necessary for anyone on this board...

Solidmch
08-01-2007, 9:01 PM
My advise. Dont fight with the police. It will be a loosing battle. If you were wronged let your lawyer fight it out. The responding officers have no time to know if the suspect has been wronged. There job is to get the suspect in custody for the arresting officer. They will, and should do what it takes to get the suspect in custody

tiki
08-01-2007, 9:11 PM
Triggerhappy,
Thanks for not only the information, but the detailed citings. :)

triggerhappy
08-01-2007, 9:12 PM
I am curious. If it was your wife, or daughter that was being arrested, is THAT acceptable? Having the women in your life strip-searched and treated like cattle, until they are cleared of fraudulent charges by a rather expensive lawyer?

Honor and dignity make life worth living. Without these, there is little point in it.

You're welcome, Tiki. I pray you never need it for other than study :)

ccwguy
08-01-2007, 9:29 PM
I figure the LEO who stated that remark is exposed in picture below. Just what the world needs, a loose canon.

sierratangofoxtrotunion
08-01-2007, 9:29 PM
Is the plan to hire the lawyer and, assuming you win, get the bad cop to pay your lawyer costs? As well as your cost for being wronged and pissed off? Cause "just get arrested and fight it later" would be expensive.

Solidmch
08-01-2007, 9:48 PM
Is the plan to hire the lawyer and, assuming you win, get the bad cop to pay your lawyer costs? As well as your cost for being wronged and pissed off? Cause "just get arrested and fight it later" would be expensive.

I dont care what you do. Its just advise. You can get the crap kicked out of you and go to jail too. Just looks bad later in court when your pleading your case.

ccwguy
08-01-2007, 10:09 PM
Is the plan to hire the lawyer and, assuming you win, get the bad cop to pay your lawyer costs? As well as your cost for being wronged and pissed off? Cause "just get arrested and fight it later" would be expensive.


Aren't LEOs immune to civil suit for duty related behavior>?

xenophobe
08-01-2007, 10:13 PM
No. THe supreme court, as well as various others have ruled that you may not only resist such, but to the point of taking the officer's life if necessary (hopefully not!).

Must be nice to be able to throw away $25,000-$50,000 or more just because you can.

I betcha you get a nice prison term for manslaughter, 3rd or 2nd degree murder if you try and live through the ordeal.


EDIT: If ya got enough money, you can get away with double murder too.

FortCourageArmory
08-01-2007, 10:13 PM
Aren't LEOs immune to civil suit for duty related behavior>?

Not hardly. Ask those four cops that did the Rodney King thing if they were immune from civil suit.

ccwguy
08-01-2007, 10:23 PM
Not hardly. Ask those four cops that did the Rodney King thing if they were immune from civil suit.

It was a question, but your comparison is hardly a comparison.

WokMaster1
08-01-2007, 10:24 PM
OK, enough of these John Wayne crap. Just do as you're told & enjoy the fact that you are going to have some fun later. And this "fun" could very well pay out some cash. :D

Solidmch
08-01-2007, 10:26 PM
It was a question, but your comparison is hardly a comparison.

The answer is No. they are not exempt from civil suit. The average cop will be sued at least three times in his career.

MrEd
08-02-2007, 1:30 AM
Comply and then sue the hell out of them , most likely then not the case will be settled out of court .
Even if it is the wife getting arrested , strip searched and so on , I will look at the officer and tell him to enjoy the arrest before I unleash upon him the plague called lawyers .

jdberger
08-02-2007, 1:41 AM
You can resist an unlawful arrest.

You can also survive standing in the path of a tornado.

Sometimes discretion is the better part of valor.

tiki
08-02-2007, 5:12 AM
You're welcome, Tiki. I pray you never need it for other than study :)

Thanks. I won't.
I learned my lessons when I was young and stupid.
I think the last time I was arrested was about 20 years ago. It was spring break and the charge, tresspassing, got tossed. It was one of those, "its spring break, let's just arrest everyone that is male and in the area" deals. I still remember to this day the words of the cops when everyone standing there said that I had nothing to do with it, and, the cops looked at each other for a while, thought about it, and then one of them said "just take everyone and let the judge figure it out."

Knowing what I know now, would I fight back now? Hell no. Not physically. Back then I was young and had no money. Back then, my parents were paying for the lawyer so it was let's get this handled and keep your mouth shut. In my parents eyes, I was guilty of being at spring break. To them the $5K was worth it since they would have something to throw in my face for years to come. :)
Today, I definitely would retain counsel and go after the arresting officers, the city, and who ever else I could, especially with all the witnesses.

Dropping $30K to fight a charge of assault and battery or even worse, is stupid. However, dropping $30K to turn an unlawful arrest into a civil rights suit would be fun. Especially how worked up I can get over something like that. These days, with a nice fat salary, savings, stocks, 401k and home equity line of credit, things are a little different. I am also older and wiser. I dot my 'I's and cross my 'T's.

My advice to you guys in your teens and 20's (you guys in your 30's and 40's SHOULD already know this, you older guys definitely do):

1) Don't put yourself in situations where you can get arrested.
2) If you think it is an unlawful arrest, and you have friends with you, let a judge make the call, not you and your buddies, especially since they aren't going to pony up for your lawyer or sit in prison with you.
3) If you don't have friends with you, definitely keep your mouth shut and don't resist because now you don't have any witnesses.
4) If you have to walk into a court room, you definitely want to do it as a plaintiff or a witness, and as not a defendant. Innocent until proven guilty is a nice concept, but thats about it.

Rolling the dice is for Vegas.


Edit: Even if you did beat the charges, 15 years later when you are filling out the paperwork for an employer or a security clearance and they ask "Have you ever been arrested? If yes, please explain."
It is much better to say "I was arrested for tresspassing. I was acquitted." Rather than, "I was arrested for tresspassing, resisting arrest with violence and assault on a law enforcement officer. I was acquitted."

triggerhappy
08-02-2007, 5:20 AM
OK, enough of these John Wayne crap. Just do as you're told & enjoy the fact that you are going to have some fun later. And this "fun" could very well pay out some cash. :D

"Do as you're told?" Man, do you know what country this is? I refuse to do such a thing!

Why is this thread starting to feel like a tin-foil, SHTF thread? :)

Solidmch
08-02-2007, 8:21 AM
"Do as you're told?" Man, do you know what country this is? I refuse to do such a thing!

Why is this thread starting to feel like a tin-foil, SHTF thread? :)

Pick your battles wisely. You will not win if you fight with the police. Remember the pen is mightier than the sword. Go to jail with a BS charge. Fight it in court. Or go to the hospital beaten hurt or dead for fighting.Then go to jail with a long list of charges. The other responding officers dont know why you are being arrested. They only know you are resisting a fellow officer. It is there obligation to get you into custody. They will do what it takes.

StukaJr
08-02-2007, 11:08 AM
It's odd, but it looks like a California Firearm Owner can learn a lot from individuals of certain ethnicities when dealing with Racist Cops - be polite, remember the badge numbers and call the lawyer...

I support the Police, but an individual that has strong discrimination against certain group of individual they've sworn to protect are scum and need to be ousted - be it due to race or because of person's legal extracurricular activities.

JALLEN
08-02-2007, 11:17 AM
No. THe supreme court, as well as various others have ruled that you may not only resist such, but to the point of taking the officer's life if necessary (hopefully not!).

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

Your Right of Defense Against Unlawful Arrest

“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)"


God forbid that such should ever be necessary for anyone on this board...

I'd be real careful about relying on those "authorities!" Do you have the year each was decided? DO you know whether any are still "good law", not superseded by more recent decisions or even statutes?

Those cites are loaded with "terms of art", not necessarily used the way you might think, too.

Rob P.
08-02-2007, 11:43 AM
John Bad Elk was overturned by SCOTUS (IIRC). It's an 1800's case and was decided at a time when self defense meant something different than it does now.

In California it is unlawful to resist arrest because there are civil remedies available for wrongful arrest and false imprisonment. Citations to cases in Connecticut and other states carry NO WEIGHT in California.

One exception to the "can't resist arrest" standard is when there is CLEAR evidence that the arresting officer has gone beyond the limits of his legal duty and you are in OBVIOUS danger of imminent death or extreme bodily injury. And even in such a case resistance may still be unwarranted until after you've been killed or beaten into a coma.

Rodney King is an example of such a situation. So is the recent case where newscopter footage showed officers were beating a suspect with nightsticks after he'd been handcuffed. In either case, the suspect was justifiable in resisting the unlawful assault if possible. The fact that it's not possible is irrelevant to the issue of whether you are allowed to or not.

Jicko
08-02-2007, 12:00 PM
How about resisting a "citizen arrest"? Lawful or not....

For example, someone trying to place another person on "citizen arrest" for say parking in a "disable parking spot" by trying to block his vehicle for leaving.... while calling the cops....

There is nothing preventing the violating party to just... leave....

triggerhappy
08-02-2007, 12:05 PM
Pick your battles wisely. You will not win if you fight with the police. Remember the pen is mightier than the sword. Go to jail with a BS charge. Fight it in court. Or go to the hospital beaten hurt or dead for fighting.Then go to jail with a long list of charges. The other responding officers dont know why you are being arrested. They only know you are resisting a fellow officer. It is there obligation to get you into custody. They will do what it takes.

So what you are saying, is beat the first one as quickly as possible, before help arrives. ;) I am sooooo kidding.

I think what it comes down to is a better use of the JEdi mind trick. It's alot easier than any of the "solutions" herein offered :)

StukaJr
08-02-2007, 1:31 PM
The "Fighting the Power" mentality are generated by many movies where the hero is unjustly accused of the crime, runs from the police and in the end discovers the real criminal - they "all drink lemonade! The End."

Well, in real world, the "hero" would still be fighting charges for multiple assaults on the Police Officers, resisting arrest, reckless driving and child endangerment well into the third sequel... Unless he's Jack Bauer p-)

CSDGuy
08-02-2007, 4:34 PM
Folks: it's actually VERY easy. A LEO has some serious immunities for arresting someone if he resonably believes that a crime has been committed, even if NO crime has been committed. Generally speaking, do NOT resist arrest. Now then, if the LEO provably knows that no crime has occurred, there is no legal justification for an arrest, such a thing becomes an "illegal arrest" and that LEO loses ALL protections (criminal AND civil) and exposes his employer to being sued as well. The key element here is that the LEO has to be aware that there is no justification for arresting you.

Although you COULD resist such an arrest, don't. You'll save yourself some bruises while setting up the LEO for a VERY bad day later and a decent check to boot!

mth
08-02-2007, 5:04 PM
Some of our rights are only there to exercise in the "worst case"; for example, shooting someone in self defense.

Although I realize where a lot of people are coming from here in saying not to resist arrest, I do believe it's analogous to saying "in general, don't consider shooting someone in self defense"; both the act of using force to defend yourself and the act of resisting arrest are rights that are there for the worst case scenario, when the only other alternative is probably a lot worse than legal fees.

I think as mature individuals that realize when and when not to use lethal force, it should also be assumed that we have the good judgment to decide when and when not to resist arrest.

An officer comes to arrest you on a bogus charge and intends to throw you in a jail cell with someone you know will kill you; resist arrest? You bet.

You get arrested for an OLL, or handgun in a soft bag? Of course you shouldn't resist arrest.

Just saying never to resist arrest is really too generic.

Surveyor
08-02-2007, 5:48 PM
Somewhere out there, ScooterGMC is biting his tongue.

Waiting... :lurk5:.

StukaJr
08-02-2007, 6:03 PM
How about resisting a "citizen arrest"? Lawful or not....

For example, someone trying to place another person on "citizen arrest" for say parking in a "disable parking spot" by trying to block his vehicle for leaving.... while calling the cops....

There is nothing preventing the violating party to just... leave....

I don't think you can "Citizen Arrest" someone for "Parking Violation"... Especially, that once the person is in violation - real handicapped people cannot park in the spot. If a person did interfere in such a way - I would think they'd suggest mental health counseling...

WokMaster1
08-02-2007, 6:25 PM
"Do as you're told?" Man, do you know what country this is? I refuse to do such a thing!

Why is this thread starting to feel like a tin-foil, SHTF thread? :)

I don't know about you but I like my cheek weld (spelling?) on the OLL buttstock the way it is. Why mess up a good thing?:D

I know what country this is. This is a country where if you are wronged by the police, you can come back & make them pay. Potentially you are going away with some money & they cannot take revenge on you.

The country that I came from, it doesn't matter if you were right. Resist & you will die. Complain & you will die or disappear.

At the end of the day, it is up to the individual's decision, afterall this is the United States of America, the best damn country in the world. :patriot:

sierratangofoxtrotunion
08-02-2007, 7:06 PM
Pick your battles wisely. You will not win if you fight with the police. Remember the pen is mightier than the sword. Go to jail with a BS charge. Fight it in court. Or go to the hospital beaten hurt or dead for fighting.Then go to jail with a long list of charges. The other responding officers dont know why you are being arrested. They only know you are resisting a fellow officer. It is there obligation to get you into custody. They will do what it takes.

I'm generally going to agree with everything you've said here. But if you're in your 20s and can't afford a lawyer and get a public defender, that's it. You're going to jail. With a public defender you pretty much don't have "not guilty" as an option. A very good friend of mine is my reference for how people that age get screwed over by the system. He can't own guns now.

For those in that demographic bracket, an earlier poster had given a couple points of good advice, one that summed up as "stay out of trouble." I think that's about all you can do, because once the cops show up, you're doomed.

Fjold
08-02-2007, 7:18 PM
"Are you required to submit to an unlawful arrest?"



Absolutely not!




You can die then or die later resisting the next arrest.

triggerhappy
08-02-2007, 9:41 PM
I don't think you can "Citizen Arrest" someone for "Parking Violation"... Especially, that once the person is in violation - real handicapped people cannot park in the spot. If a person did interfere in such a way - I would think they'd suggest mental health counseling...

What if they park a Lincoln Town Car in a compact spot? You just let that kind of thing pass???

sierratangofoxtrotunion
08-02-2007, 10:45 PM
What if they park a Lincoln Town Car in a compact spot? You just let that kind of thing pass???

:willy_nilly:

BigDogatPlay
08-03-2007, 12:05 AM
The answer is No. they are not exempt from civil suit. The average cop will be sued at least three times in his career.

Oh cool!!!! No one else can sue me. :D

Don't resist, as a general rule. It is only going to make things look worse for you later on. If the officer can be proven to have acted outside of law or policy / out of spite he can most definitely be sued civilly and the employing agency would have no obligation to defend him.

Call me crazy, but the last thing I want to do is to act in such a boneheaded way that my department can hang me out in the wind on my own.

Parag
08-03-2007, 9:26 PM
What if they park a Lincoln Town Car in a compact spot? You just let that kind of thing pass???

Hee - just print out and leave one of these. I like the one with various check-boxes including one for "that's a compact?".

http://www.youparklikean*******.com/


-- Parag