Your Right of Defense Against Unlawful Arrest

Posted: December 6th, 2012 by Facebook Friend

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

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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

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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

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Comments (3)

 

  1. Matt Corwin says:

    This is bad legal advice, and seriously irresponsible. The cases cited here, such as John Bad Elk have been superseded/not followed by modern cases. In many states following the above will get you a prison sentence or the death penalty. See e.g. Villafranca v. U.S., State v. Haas, Cutaia v. Secretary, Dept. of Corrections, State v. Koonce.

    Bad Elk was valid case law based on established English common-law from the 17th century. Like all common-law however it may be superseded by statute, and Bad Elk and its progeny have been in many, if not most jurisdictions. In those jurisdictions taking advantage of the “right” described here will land you in prison or worse.

  2. John says:

    Resisting wrongful arrest is no different than resisting any other personal assault, force must be met with equal force.

  3. Matt Corwin says:

    John, you are incorrect. Read the caselaw.

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