Anne Dekins was a loud-mouthed party girl — or at least, that’s what the arrest warrant suggested. Whatever she may have
done in the past, Miss Dekins was quietly minding her own business when Officer
Samuel Bray found her on the street and began to haul her away.
Dekins wasn’t inclined to go
quietly, and she put up a struggle. Her cries for help attracted the interest
of several armed men led by an individual named Tooley, who confronted Bray and
demanded to know what he was doing to the frantic woman. The officer produced
his official credentials and insisted that he was making a lawful arrest for
“disorderly conduct.” When witnesses disputed that description, Bray called for
Tooley and his associates
ordered Bray to release the woman, and then took action to enforce that lawful order.
After Bray’s partner was killed in the ensuing struggle, Tooley and his
associates were arrested for murder. The trial court threw out the murder
charge, ruling that the warrant was defective. Since the arrest was illegal,
the court pointed out, Dekins had a right to resist – and bystanders likewise
had a right, if not a positive duty, to assist her. The defendants were eventually
found guilty of manslaughter, but quickly pardoned and set free.
By trying to enforce an invalid
warrant, Bray “did not act as a constable, but a common oppressor,” observed
the trial court. Tooley and the other bystanders were properly “provoked” by
the act of aggressive violence against Anne Dekins, and their forceful but
measured response – first demanding that the abductor release the hostage, then
exercising defensive force to free her – was entirely appropriate.
Lawless violence against the
helpless “is a sufficient provocation to all people out of compassion” in any
circumstance, observed the court, “much more where it is done under a colour of
justice, and where the liberty of the subject is invaded….” In fact, an act of
that kind carried out by a law enforcement official is nothing less than “a
provocation to all the subjects of England.”
Every Englishman “ought to be
concerned for Magna Charta and the laws,” concluded the Queen’s Bench in
the 1710 case Queen v. Tooley.
“And if any one against the law imprison a man, he is an offender against Magna
Roughly forty years earlier, the
same court had issued a similar opinion in Hopkin
Huggett’s Case. Huggett and his friends had come to the aid of a man
who had been arrested by a constable named Berry. Huggett demanded to see the
arrest warrant. When Berry produced a clearly spurious document, Huggett drew
his sword and demanded the prisoner’s release. Berry refused, and finished
second in the ensuing swordfight.
The wrongfully arrested man in
that case (who was threatened with impressment into the military) did nothing
to resist his abduction. It wasn’t clear that Huggett knew the man, or had even
met him prior to the incident. Yet the Queen’s Bench ruled that Huggett’s
actions were justified, since a situation in which a “man [is] unduly arrested
or restrained of his liberty … is a provocation to all other men of England,
not only his friends but strangers also[,] for common humanity’s sake.”
In addition to codifying the
Common Law right to resist arrest, Hopkin
Huggett’s Case and Queen v. Tooley recognized that this right inheres
not only in the victim, but in citizens who interpose on the victim’s behalf.
Simply put: When a police
officer commits the crime of unlawful arrest, the citizens who intervene are
acting as peace officers entitled to employ any necessary means –
including lethal force – to liberate the victim.
In early 18th
Century England, this was seen as a
non-negotiable bulwark against what the heroic Algernon Sidney called “the
violence of a wicked magistrate who, hav[ing] armed a crew of lewd villains,”
would otherwise inflict his will on innocent and helpless people with impunity.
Sidney’s martyrdom at the hands of precisely that kind of degenerate,
tyrannical magistrate underscored the vitality of the principle he expressed.
“The right to resist unlawful arrest
memorializes one of the principal elements in the heritage of the English
revolution: the belief that the will to resist arbitrary authority in a
reasonable way is valuable and ought not to be suppressed by the criminal law,”
observed Paul Chevigny in a 1969 Yale Law
Journal essay. Actually, Chevigny – like many others – elides a critical
distinction between “power” and “authority”: While a police officer may have
the power to abduct or abuse an
innocent person, citizens have the authority
to prevent that crime.
Until the late 1960s, most
states recognized – albeit grudgingly — the Common Law right to resist arrest.
By 1969, that right had been transmuted, through judicial activism, into a
revocable “privilege” – one that had to be dispensed with to serve the interests of the State’s punitive caste.
“The weight of authoritative
precedent supports a right to repel an unlawful arrest with force…. This was
the rule at common law,” admitted the Alaska State Supreme Court in a seminal
work of sophistry called Terry Glenn Miller v. State of Alaska. “It
was based on the proposition that everyone should be privileged to use
reasonable force to prevent an unlawful invasion of his physical integrity and
That admission clearly
anticipated the familiar use of the magical conjunction “but” as a rhetorical
reset button, and the Court didn’t disappoint:
“But certain imperfections in
the functioning of the rule have brought about changes in some jurisdictions. A
new principle of right conduct has been espoused” – by whom, the Court didn’t
specify. “It is argued” – once again, the parties to that argument were not
identified – “that if a peace officer is making an illegal arrest but is not
using force” – something that could not occur, given that an arrest, by strict
definition, an act of armed coercion – “the remedy of the citizen should be
that of suing the officer for false arrest, not resistance with force.”
“The control of man’s
destructive and aggressive impulses is one of the great unsolved problems of
our society,” pontificated the Court as it destroyed one of the few effective
checks on the deadliest manifestation of those impulses. “Our rules of law
should discourage the unnecessary use of physical force between man and man.
Any rule which promotes rather than inhibits violence should be re-examined.”
That objective is not legitimately served by granting State functionaries an unqualified license
to commit criminal violence against the innocent.
citing the Miller decision in Alaska,
the Idaho Court observed that “More than one state has, without legislative
action, modified the traditional common law rule and has adopted the rule that
a private citizen may not use force to resist a peaceful arrest,” blithely
ignoring, once again, the fact that a “peaceful arrest” is a creature more
fanciful than a left-handed unicorn who speaks Norwegian. “We are of the
opinion that the trend is, and should be, away from the traditional common law
rule, and therefore we hold that if a person has reasonable ground to believe
he is being arrested by a peace officer, it is his duty to refrain from using
force or any weapon in resisting arrest regardless of whether or not there is a
legal basis for the arrest.”
Dum spiro, pugno!