Time after time I hear “libertarian” Republicans (and even self-professed libertarians like Neal Boortz) declare that the policeman should always be given the benefit of the doubt. This afternoon on my way home from work I was listening to a local talk radio host who describes himself as a “little-L” libertarian defend the honor of policemen against the “idiots” that would dare to call out police brutality. Sure, there are plenty of cases where there is no police brutality and some poor person simply wants to make a cheap buck. But who should the benefit of the doubt be given to? The individual being arrested.
Individuals’ right to resist unlawful arrest is the most fundamentally important rights that we posess. Every time a pundit is quick to give the benefit of the doubt to the policeman, he is saying the State is innocent until proven guilty–I object to that core belief. The State should always assumed to be in the wrong becaues it is a leech on society: taxing, pillaging, burning, robbing, attacking. It is not to be trusted, it is to be beaten down and held at bay with a molten hot bayonet two inches from its face.
The saying that gets me deep down inside is that, once assumed the policeman is right (or given the benefit of the doubt), an individual must then take it up with a judge to find out if he is guilty or innocent. At this point we have already assumed the individual is guilty and must be proven innocent, rather than the other way around. It might sound absurd, but if you are driving down the road, going the speed limit, and a police officer stops your car, pulls you out of it, and throws you on the ground, you must submit. That’s the logic of the “policemen get the benefit of the doubt” mentality. It doesn’t matter what crime you haven’t committed, it’s perfectly “OK” because the judge will obviously see that the policeman was incorrect in his arrest. The policeman may even be thrown off the force, or possibly put in prison for a few months (the latter being highly unlikely). I contest this position, and believe that it is our right and duty to resist such an unlawful arrest. The Supreme Court of the United States has backed up my position on this:
“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.”
If the arrest is completly unlawful, and you are well aware that it is an incorrect arrest, you have the right to go so far as taking the life of the officer to resist your arrest. It is our solemn duty to prevent the State from infringing on our property where it is not allowed by law. Other states’ Supreme Court have also found this to be an accurate assessment:
“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.
Again, when I hear talk show hosts and pundits say that we should peaceably submit to the officer even if we know we did no wrong, I cringe inside that these “libertarians” and “conservatives” will so easily submit to the power of the almighty Government.
Whether or not it is easier to resist arrest than submit is up to the individual. In most cases, I would likely submit simply because I don’t want to go through the trouble of having to hurt or kill a police officer resisting an unlawful arrest. I am not encouraging resisting lawful arrests–if you have marijuana in your car, despite it being a stupid illegality, you should submit, or else you’re going to be in jail a long, long time, not to mention hurt by the cop in the process. But if an arrest is being made on you and the police officer refuses to tell you why, or he has no warrant, and you know that there is nothing you possibly did that is illegal, you have every right to resist that officer to the utmost. At that point, he is nothing more than an unlawful intruder into your car or home or property, not an office of the law.
Filed under: Commentary, Culture, Media, Philosophy, Politics | Tagged: Benefit of the Doubt, Police Brutality, Resisting Arrest
I think the reason people have been generally advised to cooperate with a questionable arrest is because average citizens are not qualified to determine whether an arrest will be considered “unlawful” or not.
also, without giving any alternatives to “resisting arrest up to the point of taking a life” or “bending over and taking it”, you miss a LOT of the grey areas that make discussions about this subject interesting. for example, is an entrapped arrest “legal”? the charges won’t hold up in court, but the arrest itself is probably legal, right? who knows… what if the police officer does something illegal during the course of the arrest (like throw a coffee cup out his window onto a highway shoulder)? is that grounds to resist? unless you’re a lawyer, you won’t know. hell, even they’ll probably tell you it depends on the judge…
lastly – has anyone ever arrested on any grounds, legal or otherwise, been 100% innocent of all crimes for their entire life? probably not. for example, did you know that giving legal advice without a Bar license is illegal in every state in the country? do you know if this article counts as “legal advice”? I don’t. but you should check before resisting arrests in the future — maybe you’re a criminal and you don’t even know it… (IANAL)
I personally take it further. If the law ever said it was ok to arrest me for having a gun, I would resist because (a) I don’t believe it to be correct, and (b) ‘my cold dead hands,’ etc.
As far as ‘giving legal advice’ goes – forget that, too. The state can say whatever it wants to, but answering a friend that asks a question is completely within my rights, and it’s their responsibility to filter what comes in. I wouldn’t allow arrest for giving legal advice without a bar license.
I guess my point is I’m more likely to force my own murder at the hand of cops than allow my arrest on a ridiculous charge. People need to decide how the world’s going to be, rather than just agree that it’s ok to go to prison if a gun you’re using misfires. Complacent folk make me sick.
Josh, the way you word it shows that it – e.g. ridiculous charge – hasn’t happened to you yet.
Check back with us after it does. You won’t be sending messages from the hereafter.
Excellent. Embroiled in a 4th Amendment argument now in the state of Florida with unconstitutional traffic stops by the FHP.
Warrantless searches, no probable cause, “give me your papers”.
Unlawful arrest? Who’s to say it’s illegal except a judge. The cop will lie about the reasons for the arrest, more than one testifying police office (?) has had his testimony called into question by the judge and for good reason. Of course I’ll resist, unless my grand kids are present, until they either a) taser me to death, b) beat me into submission or c) shoot me. I’m not doing anything illegal except in the small brain of a cop.
Did you notice that in both court cases you sited the judgement was that it wouldn’t be considered murder but would instead be considered involuntary manslaughter? I could be wrong, but most states will sentence you to at least a few years in prison if the officer died as a result of your lawful resistance of arrest.
I do appreciate that the supreme ct. went to the extreme and stated that “Citizens may resist unlawful arrest to the point of taking an arresting officer’s life if necessary.” The verbage that is important here is “to the point of” and “if necessary” This is just one of the many many reasons I carry a gun everywhere I go. I’ve had my fair share of run ins with ignorant, power tripping cops who wouldn’t hesitate to lock someone up just beacuse they had a bad day. Thankfully I’ve never had a situation escalate to the point of having to resist arrest, but I would absolutely not hesitate to draw my weapon on a cop if they were in the wrong. So long as you draw first, with your finger OFF the trigger, and tell them as loudly and clearly as possible that you will shoot if they do not back off, that should be all it takes to get them to chill out while you dial 911 and report his/her sorry ass. The problem is that most cops when confronted with a gun will simply start shooting… this is where the “if necessary” part comes in handy
LOL… Gun toting redneck, I simply HOPE you try the act you described. Of course cops would start shooting when confronted with a gun. What kind of person WOULDN”T???? That’s what they’re trained to do. Are they supposed to say, oh hey, that guy has a gun pointed at me but he says he’s not going to shoot me.
Yeah. Right. Before the first words got out of your mouth you’d be capped. And the most laughable part… if I whip out a pistol and point it towards you, are you really silly enough to take the time to look to see if my finger is on the trigger? DUH!!!!!! By the time you could process your answer you’d be dead. Sheesh. This isn’t a VIDEO GAME dude, it’s the real world.
And a note to all: This would work in theory if we didn’t have lawyers that let bad guys go when we all know they’re guilty. The system SUCKS and isn’t improving. It’s not the cops I’m afraid of, it’s the legal system.
As outrageous as some police abuses are, MLK was quite right when he distinguished between opposing particular laws and opposing the rule of law.
Better to go along when the cop violates your rights and then try to vindicate yourself in court. Vindication should come easier and there should be consequences for the offending police officer, but the street is not the place to sort that out.
You seriously would kill a cop if he tried to arrest you and you knew you hadn’t done anything wrong? Is that what you are advocating here? If so, that is about the dumbest thing I have ever heard. First, always cooperate with policemen, not forgetting to be polite and respectful, no exceptions. Second, whatever your beef with the policeman may be, it absolutely, positively WILL NOT get worked out on the street if the officer has already made up his mind to arrest you (legally or illegally), acting a fool at that time will only make it harder on you in court, and I haven’t met a judge yet that looks favorably on some jackass wanna-be lawyer spouting off at the mouth about his rights. Your rights aren’t guaranteed to you on the street, you must sue for them in court, keep that in mind.
I would really like to get some feedback on a situation that I’m currently dealing with in the courts. Long story short: I’m a paraplegic, and have been brutally arrested for “resisting arrest” in addition to some other charges of the like, or the dislike, as the case may be. The state is willing to put me away in an overcrowded (triple occupancy) jailhouse with no medical ward against my doctors’ advice. All I know is that my attorney is next to useless right about now.
How can people get away with beating the crap out of a guy in a wheelchair, and throwing him in jail, and still manage to sleep at night?
Do not even suggest that the average citizen is not qualified to tell when an arrest is unlawfull. All people know right from wrong. If you can not distinguish right from wrong you are declared insane and dealt with accordingly.
I like Lance have always cringed at the thought of submitting to a policeman arresting me unlawfully.
I have always had an inherent sense of justice, and there is just something terribly wrong with being forced to submit to an arrest when I’ve done for which I’ve done nothing to be arrested!
I would fight like hell before I let a cop take me down if I knew I had done absolutely NOTHING wrong. I would have to be terribly sure of myself, but I would fight it for sure. There are two things I don’t trust, and that’s cops and the legal system.
Knowing this tidbit of legal precedence would come in handy for me so I could make sure to bring it up to any lawyer I may have to hire… Not that I’m planning on resisting arrest. The whole point is that this is about “unlawful” arrest and I generally don’t do much to draw attention to myself from cops, except speeding in my car, but even that isn’t at such high speeds that they would have the right to arrest me. And I rarely get tickets anyway.
Thanks for this blog Lance. Good one!
Steve: And all others who still believe the cops and government are the good guys: may your chains set lightly upon you. Have you ever heard of N.H.’s motto?
BTW, just make sure you don’t have any (illegal) drugs of any sort anywhere near your car, person, or house.
My last point: Please tell your friends about Jury Nullification.
http://www.fija.org This is the best way to fight this type of tyranny peacefully. But your friends and potential jurors won’t know about it unless you tell them!!!!!!!!
“If a law is unjust, a man is not only right to disobey it, he is obligated to do so.”
Thomas Jefferson , author of Declaration of Independence, third president of the USA
Thomas Jefferson’s definition of ‘unjust’ I would trust. Jack the Ripper’s, I would not.
Haha, I love idiots. Hey, Gun Totin Redneck, I would love you to try that whole, jump out of the car, pull the gun, point it at the officer and not have your finger on the trigger idea. Yeah, can you say cold slab. I have the right as a law enforcement officer to “Shoot until the threat no longer exist” if I feel that my life or the lives of others is in danger, and you pointing a firearm at me, after jumping out of your vehicle and yelling me to back off, is threatening my life, and possibly others. Secondly, If you are asked to do anything that is “Reasonable” and you refuse, then you are breaking a very common law. It is the against the law to “refuse the reasonable request of a law enforcement officer”. If you did not commit a crime, and 2 witnesses say you did, and I go to arrest you, and you fight, yeah, your gonna get your ass kicked. I personally don’t know if you did, or didn’t commit a crime, based on the evidence at the scene, and witness statements, an arrest may or may not be warranted. It is up to the Judge, DA, Jury, DA Investigators to prove wether or not the evidence is correct, or the witness statements were true or not. Not the arresting officers. You people really should learn the law before you spout your useless, knowledgeless crap on some stupid website, which I just so happened to run across doing research. What in the hell is this country becoming, when people think they have the right to take anothers life because they think they are being done wrong, and not expect to have consequencies ?
i am a correctional officer in dc, i was arrested for carrying a firearm. i know i am not a police officer, and i never will be because now i see why most of them don’t live very long. according to the exemptions of dc code 22-3204 ”policemen, sheriffs, marshalls and jail wardens and their deputies” are allowed to carry a firearm. also hr 218 which is a house bill passed by G bush lifted the restraint on carrying a concealed weapon through state lines by qualified law enforcement officers. i believe my agency falls under this umbrella of legislation. can u believe that at the time of my arrest i presented the officer with the law on paper, showed him my badge and id and i was still arrested and thrown in a holding cell with the same inmates i supervise. if anyone of those inmates recognized me then my words would not have been this tame about that officer. it amazes me that even though we work for the same city, i showed him the paperwork for my registration, my badge and id, the law from the DC public library, it made no difference. it is more than likely that the charges will be dropped and i can’t wait. i will sue that officer for everything i can get and if i have my way i will end his career. Even if i dont win i will still drag him to court. maybe he made a mistake, because my entire agency carries off duty even the supervisors and i dont have to say why. put aside even the legislative aspect would it make any sense for a person with a job like that not to have a means to defend him/her self in the same city where u work. Oh not to mention that i am black, i had some bling on and my windows are tinted, but that’s not against the law? Or is it? He will pay literally. And what the hell does ” the right to bare arms mean?” The American legal system is very flawed, all we can do is live and learn. My advice to everyone is play by the rules even though u r right and submit; And when u get your day like every dog does, u hit em where it hurts, in the pockets. Remember a policeman is still a civilian, as a matter of fact they claim to be the ultimate civilian by protecting the community and that is why there is civil court where that shiny badge and blue uniform don’t mean shit if he was wrong. my lawyer is gonna eat him alive, peace.
I hope things for you work, angry co.
I was in a similar situation, but since I have little money and could not hire an attorney, I was convicted on a crime I didn’t commit. (With no help from my court appointed council)
In Illinois it is a criminal offense to resist arrest – even if it is unlawful. The case law has set precedent that EVEN IF THE ARREST IS UNLAWFUL the charge of resisting arrest will be lawful, if the cop believed he had probable cause. Probable cause has a VERY LOW BAR that has to be met. He just has to THINK there is a reason to arrest you, even if his thinking was flawed.
(720 ILCS 5/31‑1) (from Ch. 38, par. 31‑1)
Sec. 31‑1. Resisting or obstructing a peace officer, firefighter, or correctional institution employee.
(a) A person who knowingly resists or obstructs the performance by one known to the person to be a peace officer, firefighter, or correctional institution employee of any authorized act within his official capacity commits a Class A misdemeanor.
Eric, I’m not sure where you learned your pointers about law, but after your excessive spiel, you should back up and check yourself. You stated:
“I have the right as a law enforcement officer to “Shoot until the threat no longer exist” if I feel that my life or the lives of others is in danger”
Now, let’s look at that “right as a law enforcement officer”. Is that a common right? Is that a government-granted right (kind of an oxymoron)? Is it a civil right? If you don’t specify, I would say the EXACT same thing about a private citizen who merely “felt” their life was in danger.
And Eric, what’s the legal definition of “reasonable”? Has that been defined by law or is that just left open to interpretation by judges? You might need to be careful there. After all, you might consider it “reasonable” to go around and just randomly demand ID from people, possibly because they just look “suspicious”. While in reality, that’s probably not going to fly. And by the way, what specific “law ” is it that says its illegal to “refuse the reasonable request of a law enforcement officer. Is that Illinois law or Alaskan law or Virginia law, etc?
Also, you shouldn’t assume (as they do so many times in a court of law) that there are not people out there who are prepared to deal with you. Those people exist , they are not necessarily criminals in any sense, and you are not fucking RoboCop.
Don’t complain about this article not being your “type” of research. I have yet to see you provide ONE single citation to support your recitation of the so-called “law”.
And last, but certainly not least, is this colorful statement:
“What in the hell is this country becoming, when people think they have the right to take anothers life because they think they are being done wrong, and not expect to have consequencies ?”
You know Eric, I’ve thought about that many times when I hear or read stories about abuse of authority involving police officers, security guards, etc. One that comes to mind involved an elderly individual who was tasered to death. The man was having a cardiac arrest and was unable to comply with the request made by the security “officials”, so they decided they needed to taser him. Brilliant! I personally, Eric, am wondering why they were not brought up on charges of felony murder. Your statement really applies in this case.
My final statement goes out to the rest of the people here: It’s no suprise that Illinois has that standard set in 720 ILCS 5/31-1. That place is a police state. They say they have “excellend” law enforcement. What they mean is that they have oppressive law enforcement. In that state, they have very little if any regard for your rights, which are supposed to be protected by the Constitution. But they don’t let that “goddamned piece of paper” (as stated by George Bush) get in their way.
[...] http://politicalinquirer.com/2008/06/25/resisting-unlawful-arrest-constitutional-legal-and-our-duty/ [...]
I was once arrested for resisting arrest. There were no other charges, except for a speeding citation. The charge was dropped in court the following day, but I paid my speeding ticket and got to sleep next to a puddle of puke in the drunk tank that night. I had not had even one sip of alcohol. I just dared to give the guy a little attitude. I distinctly recall determining at the time that the arrest was unlawful. I had no idea that I had every right to kill the arresting officer.
Loving the authority worshippers in the comments that profess that police have a right to not only act immorally and violate the rights of others, but even violate statue. They profess arrogantly, and even promise violence to those that would dare to challenge them, that it magically becomes justified simply because they did it. They assert, like some laughable imitation of Judge Dredd, that they are the law.
The state can decree that the sky is orange and even claim the power to kill you for disagreeing, but they can’t make it so. The same is true for the harassment, abuse, and even murder of innocent people under color of law. No matter how often the cops get away with it, how many hapless people they railroad, how many victims they send to the morgue, they will never have the right and they will never be justified. Any law or institution that claims the power to violate your natural rights and even their own laws no longer respects the rule of law at all: it has become rule of man, and is a tyranny with all claims of its legitimacy thrown out the window.
The Bad Elk case is a century old and very literally from the Wild West. It took place in Indian territory more than a day’s ride from the nearest town. And the defendant (the shooter) was, himself, an Indian policeman who shot another Indian policeman who barged into his house with obvious bad intent. Moreover, Bad Elk wasn’t acquitted — he didn’t get to shoot a fellow officer and go scot free — the Supreme Court merely said that he had a right to present the circumstances to the jury and possible be convicted of manslaughter instead of murder. The Bad Elk case has hardly been cited in any court in the last half century, largely because the situation is so unlikely today.
Similarly the other decisions are all old law, dating back to a time when the police and court systems mostly resembled cowboy movies, with lynch mobs and such. Nowadays, police are trained in how to make proper arrests, transport the arrestee straight to the police station, and then to police court, etc. Someone getting off scot free for cop killing is very very rare in the last half-century – perhaps once a decade. Far more likely is a hundred other cops surging after the killer and not terribly fastidious about bringing him back alive.
Great article
http://timnuccio.wordpress.com/2009/05/08/arizona-v-gant-and-the-search-incident-to-arrest/
“The state can decree that the sky is orange and even claim the power to kill you for disagreeing, but they can’t make it so. The same is true for the harassment, abuse, and even murder of innocent people under color of law. No matter how often the cops get away with it, how many hapless people they railroad, how many victims they send to the morgue, they will never have the right and they will never be justified. Any law or institution that claims the power to violate your natural rights and even their own laws no longer respects the rule of law at all: it has become rule of man, and is a tyranny with all claims of its legitimacy thrown out the window.”
Damn straight, man.
Bernard stole my thunder. I was going to drop that bomb Bernard, thanks Pal. Illuminarch; ditto Thanks Pal. There is not a Court in this Land today that will justify killing a Policeman, He could be raping your Daughter, and Still…, The Courts are corrupt and lost. There is no more Constitutional Law. Any one not accepting this assertion never saw what happened to David Koresh and his church group. If you have any recourse at all it is after the fact and in the Courts. And I am not willing to concede better than 10% chance if you catch the whole thing on video, 1% or less with no video. Maybe 3% if your Daddy is rich. The Old west is gone. The Constitution died when the Patriot act was born. Be polite, comply, go quietly, record it if you can.
Your time is coming Eric, Your own words convict you, “I have the right as a (redacted) to “Shoot until the threat no longer exist” if I feel that my life or the lives of others is in danger, and you pointing a firearm at me, after jumping out of your vehicle and yelling me to back off, is threatening my life, and possibly others” You fucking Pigs think you got some kind of monopoly on “Rights” The Constitution was not given to us by the Government, but by God. No one needs a piece of paper to tell us we have a right to defend ourselves, that is inherent in the lowest of life forms. A fucking Mole will defend itself. Fuck you pig. I love these forums, this is the only place where the playing field is level. I could be killed on the side of the road for talking to a cop like that.
In fact, I wish a patently and blatantly illegal arrest happened to me. I would love to fire, point blank, into a police officer’s face and get away with it.
I think everyone is forgetting that they must learn the laws. For instance, cops nowadays are unlawfully arresting people for taking pictures and video of them, or for refusing to sign a ticket, or refusing to show their papers.
An unlawful arrest is one that the officer makes up. They usually will change the actual charge to obstruction or disorderly conduct.
Its time the citizens start protecting eachother from these government kidnappings that are happening all the time.